486 A.2d 143 (1985)
STATE of Maine
v.
Rodney R. CLOUKEY.
Supreme Judicial Court of Maine.
Argued November 7, 1984.
Decided January 8, 1985.
Patricia Worth, Asst. Dist. Atty. (orally), Rockland, for plaintiff.
Logan, Kurr, Hamilton & Robinson, Harold C. Hamilton, II (orally), Bangor, for defendant.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ.
WATHEN, Justice.
Following a jury-waived trial in the Superior Court (Knox County), defendant Rodney Cloukey appeals his conviction for operating a motor vehicle after his license had been revoked as a habitual offender. 29 M.R.S.A. § 2298 (Supp.1984-1985).[1] The sole issue on appeal arises from defendant's constitutional challenge to the police roadblock that resulted in his apprehension. We conclude that the police conduct was "reasonable" and, therefore, we deny the appeal.

I.
During the early afternoon of August 17, 1983 a deputy sheriff and a member of the *144 Maine State Police set up a roadblock on Route 73 in St. George for the purpose of conducting a traffic safety check. Before the roadblock was established, the deputy asked for and received the permission of the Sheriff of Knox County to assist the trooper. He also informed the Sheriff of the location of the proposed roadblock. Route 73 is a rural two lane road permitting vehicular travel in both directions. The roadway leads from St. George through Spruce Head and South Thomaston and on to Rockland. According to the testimony of the deputy, "Route 73 itself is one of the stretches of road in Knox County that we have a higher rate of accidents on than any other."
The officers selected an area that they believed to be safe for roadway traffic stops. The weather was clear and dry, and the roadway was level and straight. Motorists approaching the site selected by the officers had an unobstructed view of the site for about ½ mile from one direction and 1½ miles from the other direction. The officers parked their respective cruisers on the opposite shoulders of the highway, leaving the traveled portion unobstructed. They activated both sets of "flashers" and one flashing blue light. The officers stopped motorists by standing in the road, gesturing for them to stop. The deputy testified that he stopped every vehicle that came toward him in his lane. He would approach the driver, asking for a license and registration. He would then explain that he was conducting a traffic safety check. The check consisted of "looking at the license and registration, checking the inspection sticker, the tires, lights" and occasionally the directional signals. The deputy estimated that he performed thirty checks in one-half hour. The state police officer performed similar checks in the other lane of the highway.
Defendant Rodney Cloukey was stopped by the deputy while driving a motor vehicle. The deputy explained that he was conducting a safety check, and asked to see defendant's license and registration. When defendant was unable to produce a license, the deputy asked him to pull over. After running a license check and finding that defendant's license had been suspended, the deputy placed defendant under arrest.
Prior to trial, defendant moved to suppress "any and all evidence gained as a result of the illegal and unconstitutional stop and search of his automobile." In denying the motion, the Superior Court balanced the need for the seizure against the intrusion on the defendant and found that the license and registration stop was "reasonable" under the Fourth Amendment of the United States Constitution. The issue is now before us on appeal.

II.
At the outset it should be observed that the present case involves a systematic, roadblock stop of all vehicles rather than a roving stop of one vehicle. The roadblock was conducted for the purpose of checking the operators' license and the registration, inspection sticker, and certain exterior safety features of all vehicles passing through an area having a high accident rate. These facts are of paramount importance because neither this Court nor the United States Supreme Court has ruled on the precise issue presented by this case. In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) the Supreme Court affirmed an order suppressing evidence and held that the roving stop of a motorist, without at least an articulable and reasonable suspicion that a violation might be occurring, violates the Fourth Amendment. By way of dicta the Court went on to state:
This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.
*145 Id. at 663, 99 S.Ct. at 1401 (footnote omitted). The Supreme Court was not required by the facts of Prouse to establish any meaningful guidelines regarding roadblock stops and therefore the issue remains in doubt.
Analysis begins with the fundamental question whether the action of the police officers in conducting the roadblock was "reasonable" under the Fourth Amendment. In this area of the law, reasonableness requires that the need to temporarily seize motorists be balanced against the invasion that the seizure entails. See Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-35, 18 L.Ed.2d 930 (1967). Although Prouse did not speak directly to the mechanics of an acceptable roadblock, the decision is helpful, at least by way of contrast. In Prouse, a police officer stopped a vehicle in the evening hours and seized marijuana in plain view on the car floor. The defendant, an occupant of the vehicle, was arrested for illegal possession of a controlled substance. The arresting officer testified that he made the stop for the purpose of checking the driver's license and registration and described the stop as routine. The officer's decision, however, was explained in the following terms: "I saw the car in the area and wasn't answering any complaints, so I decided to pull them off." Prouse at 650-651, 99 S.Ct. at 1394. It would be difficult to describe a more capricious and arbitrary basis for detention than the fact that the officer had nothing better to do. The Supreme Court first restated the balancing test as follows:
Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.
Prouse at 654, 99 S.Ct. at 1396. Considering the particular facts before it, the Court found the intrusion to outweigh the governmental interest supporting a roving stop.
After Prouse, many courts have been called upon to consider whether roadblocks are permissible. Two federal courts of appeal have had little trouble upholding specific roadblocks for a license and registration check. In United States v. Miller, 608 F.2d 1089 (5th Cir.1979), cert. denied, 456 U.S. 964, 102 S.Ct. 2043, 2044, 72 L.Ed.2d 489 (1982) officers in Texas set up a license and registration checkpoint adjacent to a Border Patrol checkpoint. All cars traveling in either direction were stopped. The court noted that this was "a procedure apparently approved in Delaware v. Prouse." Id. at 1093. In United States v. Prichard, 645 F.2d 854 (10th Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981), a roadcheck conducted in New Mexico was upheld even though the officers exercised some discretion in deciding which cars to stop. As traffic became congested, the officers waved cars through until the pile-up had disappeared. The court discussed the roadblock in the following terms:
In our view, the roadblock stop of the Ford Bronco does not run afoul of the rule of Prouse. While this may not have been a "100% roadblock" of the type referred to in Prouse, it is nonetheless a long way from the selective, single car stop denounced in Prouse. In the instant case, the New Mexico state police were attempting to stop all westbound traffic on an interstate highway, insofar as was humanly possible. The decision not to stop trucks was reasonable under the circumstances, because, presumably, they had all been stopped at a port of entry. The purpose of the roadblock, i.e., to check drivers' licenses and car registrations, was a legitimate one. If, in the process of so doing, the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes. See United States v. Merryman, 630 F.2d 780, 782-85 (10th Cir.1980). Furthermore, allowing all the stopped cars through when traffic became congested was also reasonable and, in our *146 view, non-violative of the rule of Prouse. In sum, the roadblock stop of the Ford Bronco was, under the described circumstances, constitutional.
645 F.2d at 856-857.
The state courts that have dealt with roadblocks have generally read the dicta in Prouse more narrowly. Of the seven cases involving temporary roadblocks, three have found a Fourth Amendment violation: State ex rel. Ekstrom v. Justice Court of State, 136 Ariz. 1, 663 P.2d 992 (1983); Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983); State v. Olgaard, 248 N.W.2d 392 (S.D.1976). Four cases have found no violation: State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); Little v. State, 300 Md. 485, 479 A.2d 903 (1984); State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (1980); People v. Scott, 53 U.S.L.W. 2300 (N.Y.1984). Almost without exception, the state courts have focussed on the following language from Prouse:
Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon "some quantum of individualized suspicion," other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not "subject to the discretion of the official in the field," Camara v. Municipal Court, 387 U.S., at 532, 87 S.Ct., at 1733. See id., at 534-535, 87 S.Ct. at 1733-1734; Marshall v. Barlow's, Inc., supra, 436 U.S. at [307] 320-321, 98 S.Ct. at [1816] 1824-1825 [56 L.Ed.2d 305]; United States v. United States District Court, 407 U.S. 297, 322-323, 92 S.Ct. 2125, 2139, 32 L.Ed.2d 752 (1972) (requiring warrants).
440 U.S. at 654-655, 99 S.Ct. at 1396 (footnotes omitted). From this language and the analogy provided by decisions involving immigration checkpoints, see e.g., United States v. Martinez Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the courts have extrapolated a number of factors to apply and balance in reaching a decision in a particular case. The factors listed in State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983) are representative:
(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.
234 Kan. at 541, 673 P.2d at 1185.
In the case before us defendant argues that the roadblock is unconstitutional solely because "there was no decision made by policy making supervisory officers either as to the necessity for and reasonableness of the road block, or to the procedures to be used in setting up the road block." The record reveals only a modest amount of involvement by the Sheriff of Knox County. His permission was requested and he was informed of the location of the roadblock by his deputy. We are not persuaded, however, that the relative absence of supervisory personnel in the planning stages of the roadblock renders it constitutionally unreasonable.
We believe that the State of Maine has a vital interest in protecting its citizens from persons who have either not qualified to drive or who have been declared incompetent to drive because of a record of serious driving offenses. This case does not *147 involve a sobriety stop. There may be many effective ways of detecting a drunken driver without intruding on the rights of the citizen. A trained eye can readily spot erratic operation. The unlicensed driver, however, displays no observable characteristics. If a license check under any circumstances is unreasonable, then in most instances, public protection must await the commission of another offense. Although the state's interest would not sustain the highly intrusive roving stop of a single vehicle, it does sustain the less intrusive police practice employed in this case.
For purposes of the Fourth Amendment, there is a significant difference in fact between a roving stop and a roadblock. Common experience alone suggests that it is far more intrusive, alarming, and unsettling to be picked out of a line of traffic and stopped, as opposed to being stopped as part of a line of traffic. This commonsense proposition has been recognized by the Supreme Court and forms the rational basis for the roadblock exception. In Prouse, the Court observed that:
For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. `At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.'
Prouse 440 U.S. at 657, 99 S.Ct. at 1397 (citations omitted). On balance we conclude that the state's interest, under these particular circumstances, sustains the minimal intrusion inflicted on the traveling public.
We are fully cognizant of the fact that a license checkpoint can be used as a subterfuge. Those state courts that have emphasized the importance of the involvement of supervisory personnel in planning a roadblock, undoubtedly had that fact in mind. Although we recognize it is preferable, we are not persuaded that written policy and supervision is essential. Subterfuge can occur even in the presence of such factors. The justice below found that the purpose of the roadblock was as stated by the officer. The facts and circumstances are highly corroborative of that finding.
The entry must be:
Judgment affirmed.
All concurring.
NOTES
[1]  29 M.R.S.A. § 2298 provides in relevant part:

It shall be unlawful for any person to operate any motor vehicle on a public way, as defined in Title 17-A, section 505, subsection 2, in this State while the revocation prohibiting its operation remains in effect. Any person found to be an habitual offender under this chapter, or former chapter 18, who is thereafter convicted of operating a motor vehicle in this State while the revocation prohibiting operation is in effect shall have committed a Class C crime.
Defendant had previously been declared to be a habitual offender pursuant to 29 M.R.S.A. § 2292 as a result of three convictions for operating under the influence.


424 F.Supp.2d 858 (2006)
Francisco C. CHAVEZ, Plaintiff,
v.
T.A. McINTYRE, Brian Whited, Joe Gerndt, Defendants.
No. Civ.A. 505CV00034.
United States District Court, W.D. Virginia, Harrisonburg Division.
February 28, 2006.
*859 Michael R. Zervas, Bradley Law Firm Pc, Madison, VA, for Plaintiff.
John D. McGavin, Julia B. Judkins, Trichilo Bancroft McGavin Horvath & Judkins Pc, Fairfax, VA, for Defendants.

MEMORANDUM OPINION
CONRAD, District Judge.
Francisco C. Chavez brings this action pursuant to 42 U.S.C. § 1983 against T.A. *860 McIntyre, Brian Whited, and Joe Gerndt, alleging that the defendants violated his Fourth and Fourteenth Amendment rights. Mr. Chavez also asserts several state claims against the defendants, including intimidation, harassment, and violence directed against him as the result of racial or ethnic animosity; assault and battery; intentional and negligent infliction of emotional distress; malicious prosecution; and abuse of process. The case was filed in this court on May 23, 2005. The case is currently before the court on the defendants' motions to dismiss. For the following reasons, the court will deny the defendants' motions to dismiss.

BACKGROUND
On June 17, 2003, the plaintiff, a Mexican national, was confronted outside his residence by Officer Joe Gerndt, a member of the Front Royal Police Department. (Compl.¶ 4.) The plaintiff's wife had called the police department because she was afraid that the plaintiff would attempt to drive a vehicle after he had been drinking. (Compl.¶ 7.) Officers Brian Whited and T.A. McIntyre joined Officer Gerndt, and the plaintiff was told that he was being arrested for being drunk in public. (Compl.¶ 8.) According to the plaintiffs Complaint, he had begun to move towards the police vehicle when one of the defendants grabbed him and twisted his arm. (Compl.¶¶ 8-9.) The plaintiff pulled away, and the defendants, saying that the plaintiff was resisting arrest, maced the plaintiff, threw him to the ground, and handcuffed him. (Compl.¶ 10.) The plaintiff claims that he was then maced again and kicked in the side at least five times. (Compl.¶ 11.) The plaintiff was also struck in the side with a night stick. (Compl.¶ 12.) Subsequently, the plaintiff was charged with being drunk in public and two felony counts of assault and battery on a police officer. The drunk in public charge was nolle prossed. The plaintiff was acquitted of all remaining charges by the jury.
The plaintiffs Complaint includes the following claims: (1) the defendants violated the plaintiffs constitutional rights by subjecting the plaintiff to unreasonable and excessive force; (2) the defendants conspired with each other to deprive the plaintiff of his constitutional rights; (3) the defendants failed to intercede so as to prevent the use of excessive force due to intentional conduct or deliberate indifference; and (4) the defendants subjected the plaintiff to discriminatory treatment. The complaint also includes several state claims. The defendants have filed motions to dismiss the plaintiffs claims relating to a conspiracy and to failure to intercede.

DISCUSSION
A complaint should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) only when the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Martin Marietta Corp. v. Int'l Telecomms. Satellite Org., 991 F.2d 94, 97 (4th Cir. 1992). In considering a motion to dismiss, the court should accept as true all wellpleaded allegations, and view the complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969).
I. Count TwoConspiracy to Violate Civil Rights
The plaintiffs second claim states that the defendants conspired to deny the plaintiff of his constitutional rights. The defendants allege that the plaintiffs conspiracy allegation should be dismissed for failure to state a claim because there is no *861 "plurality of actors" to support a cause of action for conspiracy. According to the defendants, the intracorporate conspiracy doctrine applies so that there is no plurality of actors, due to the fact that all three defendants were police officers for the Town of Front Royal at the time of the alleged incident.
The proof of a conspiracy to violate the civil rights of another must meet a "weighty burden," but to withstand a motion to dismiss, the pleadings must meet only the basic standard established in Conley, 355 U.S. at 45-46, 78 S.Ct. 99. See also Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.1996). To establish a conspiracy under 42 U.S.C. § 1983, the plaintiff must show that the defendants acted "jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in . . . deprivation of a constitutional right." Hinkle, 81 F.3d at 421.
When defendants are all a corporation and its officers, or officers of the same corporation, the intracorporate conspiracy doctrine provides that the defendants are immune from liability due to the lack of "joint action." Under the doctrine, "[a] corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation." Buschi v. Kirven, 775 F.2d 1240, 1251 (4th Cir.1985). This immunity is not destroyed even if the agents are sued in their individual capacity. Id. at 1252 ("Simply joining corporate officers as defendants in their individual capacities is not enough to make them persons separate from the corporation in legal contemplation.").
Immunity can be destroyed, however, if an agent is performing an unauthorized act in furtherance of a conspiracy. Id. at 1253. As the United States Court of Appeals for the Fourth Circuit has recognized, "unauthorized acts [of an employee] in furtherance of a conspiracy may state a claim. . . ." Id. at 1252-53 (citing Hodgin v. Jefferson, 447 F.Supp. 804, 807 (D.Md. 1978)). Even if certain acts of officials would constitute corporate action, unauthorized acts of those officials could not avoid a conspiracy charge. Id. at 1253.
In Hodgin v. Jefferson, the United States District Court for the District of Maryland considered a motion to dismiss based on the intracorporate conspiracy doctrine. 447 F.Supp. at 807. The Court held that individuals employed by the same corporation could be held liable for unauthorized acts committed in furtherance of a conspiracy. Id. The Court ruled that such an exception existed in that case, because the plaintiff had charged that a defendant officer had "ignored the stated policies" of the defendant company, and therefore his alleged actions were unauthorized by the company and the plaintiff had sufficiently pled the requirements of a conspiracy. Id. The court finds these facts to be similar to those in the present case. The plaintiff's allegations are sufficient to invoke the exception to the intracorporate conspiracy doctrine that the actions of the officers were unauthorized, and the plaintiff has therefore stated a cause of action. The defendants' motions to dismiss for failure to state a claim will be denied.
II. Count ThreeFailure to Intercede
The plaintiffs third claim states that certain of the defendants had an opportunity to intercede on behalf of the plaintiff to prevent constitutional violations, but refused to do so as a result of intentional conduct or deliberate indifference. The defendants allege that the plaintiffs allegation fails to state a claim because there is no authority, in a statute or in interpretive case law, to support a separate claim *862 or cause of action for "failure to intercede."
The United States Court of Appeals for the Fourth Circuit has recognized a cause of action under 42 U.S.C. § 1983 for bystander liability. In Randall v. Prince George's County, the Court held that an officer may be obliged to act to protect the constitutional rights of citizens from other law enforcement officers. 302 F.3d 188, 204 (4th Cir.2002). This theory of liability is based upon the notion that, "it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge." Id. (quoting Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972)). An officer may be subject to bystander liability "if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Id.
The court concludes that the plaintiff has stated a claim for bystander liability under Count III, 42 U.S.C. § 1983Failure to Intercede. According to the plaintiff's Complaint, "[d]efendants . . . had opportunities to intercede on behalf of Mr. Chavez to prevent the excessive use of force and the unreasonable seizure but due to their intentional conduct or deliberate indifference declined or refuse to do so." (Compl.¶ (28.) As described above, the plaintiff has alleged sufficient facts to state a claim for the officers' bystander liability. Under the allegations of the Complaint, certain of the defendants knew that officers were using excessive force or carrying out an unreasonable seizure, they had the opportunity to intercede, and they chose not to act. The court finds that the Court of Appeals for the Fourth Circuit has recognized a cause of action for bystander liability under § 1983, and that the plaintiff has stated a claim under this theory. The defendants' motion to dismiss, based on the premise that the plaintiff did not state a claim in Count III, is therefore denied.

CONCLUSION
For the reasons stated, the defendants' motions to dismiss are denied.
The Clerk is directed to send certified copies of this Memorandum Opinion and the accompanying Order to all counsel of record.

ORDER
This case is before the court on the defendants' motions to dismiss. For the reasons stated in a Memorandum Opinion filed this day, it is hereby

ORDERED
that defendants' motions to dismiss are DENIED.
The Clerk is directed to send a certified copy of this Order and the attached Memorandum Opinion to all counsel of record.


483 F.Supp. 128 (1980)
Ella M. McCRAY
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare.
Civ. A. No. 79-213-A.
United States District Court, M. D. Louisiana.
January 14, 1980.
Leila S. Withers, Withers & Withers, Baton Rouge, La., for plaintiff.
Donald L. Beckner, U. S. Atty., James Stanley Lemelle, Asst. U. S. Atty., M. D. Louisiana, Baton Rouge, La., for defendant; John M. Stokes, Regional Atty., Paula Mastropieri-Billingsley, Asst. Regional Atty., Dept. of Health, Ed. and Welfare, Dallas, Tex., of counsel.
*129 WEST, District Judge:
Ella M. McCray has applied to the Social Security Administration for disabled widow's insurance benefits and Supplemental Security Income. Her application was denied on grounds she was not disabled within the meaning of the applicable statute. She brings this action pursuant to 42 U.S.C. § 405(g) to obtain review of the agency's decision.
McCray is a fifty-seven year old woman who resides in Jackson, Louisiana. She was reared on a farm, which she left at the age of eighteen to accept a position as a household servant, which she kept for twelve years. For the succeeding nine years she was employed as a public school lunchroom worker and cook. Beginning in 1963, McCray worked in the housekeeping department of a geriatric hospital, which employment she left in February of 1977 because of back pain.
In May, 1977, McCray had a herniated disc surgically removed. She has not worked since that time. She takes daily sitz baths and exercise as well as pain relievers and muscle relaxants to relieve her back pain. She testified that approximately three months prior to the hearing before the Administrative Law Judge, she ceased taking empirin for pain and was switched to tylenol. She was still, however, taking muscle relaxants.
She complained of pain in her left leg and was observed at the hearing to sit down and rise gingerly, though it was noted that she sat through the lengthy proceedings without signs of stress and walked briskly from the room at their conclusion.
Of less serious character than her back disorder but to be considered with it in determining whether McCray is disabled is a radical mastectomy performed in 1965 from which McCray claims a residual stiffness and weakness of the left arm; claimed arthritic pains in her right hand and shoulder, though tests reveal no signs of arthritis; and bladder trouble.
The Administrative Law Judge took the testimony of McCray and her daughter, Loretta Mathews, and found as facts that McCray could not, because of her age and her back impairment, return to her former work at the geriatric hospital, which involved heavy labor. However, it was specifically found that McCray was able to do light work, i. e. "work which entails lifting 20 lbs. maximum, with frequent lifting or carrying of objects weighing up to 10 lbs., walking and standing to a significant degree, or sitting most of the time with a degree of pushing and pulling of arm and leg controls." Suggested jobs which it was held McCray could perform were "household domestic, sitter for children and the elderly, cafeteria server, and school crossing guard."
Claimant argues on appeal that, having proved that she was unable to return to her former employment as a housekeeper, the burden of proof shifted to the Government to show that there was other work, existing in the national economy, which she could do, and that the Government failed to introduce any evidence to meet this burden, the Administrative Law Judge having merely taken notice that there were certain specific jobs in the category of light labor which she could perform.
Since we find that this argument has merit, we remand the case to the Social Security Administration for further proceedings consistent with our remarks below.
Cases are legion which repeat that it lies with the party claiming benefits under the Social Security Act to show his entitlement; Turner v. Califano, 563 F.2d 669 (CA 5  1977), Kirkland v. Weinberger, 480 F.2d 46 (CA 5  1973), Hart v. Finch, 440 F.2d 1340 (CA 5  1971), Aldridge v. Celebrezze, 339 F.2d 190 (CA 5  1964).
However, proof of entitlement to Social Security Disability Benefits presents a special problem for applicants who, under a strict application of the above principle, would be confronted with the well-nigh impossible task of proving a negative, i. e., that there was no form of substantial gainful employment available in the national economy which they are capable of undertaking.
*130 Therefore it has been held, that in these cases, the claimant need only prove that he is unable to perform the duties of the job he had previously held, and, having done so, it then is up to the Government to prove that there is other work available which he is able to do.
. . . prima facie case of disability to perform her customary occupation due to a medical condition shifted the burden of going forward from her to the Secretary. Taylor v. Weinberger, 512 F.2d 664 (CA 4  1975).
This rule has been expressly adopted by at least five of the Circuit Courts of Appeals; Hernandez v. Weinberger, 493 F.2d 1120 (CA 1  1974), Meneses v. Secretary of H.E.W., 143 U.S.App.D.C. 81, 442 F.2d 803 (CA DC1971), Vaughn v. Finch, 431 F.2d 997 (CA 6  1970), and Stark v. Weinberger, 497 F.2d 1092 (CA 7  1974). It has been stated to be the law by District Courts in three other Circuits; 2nd Cir.  Kenny v. Weinberger, 417 F.Supp. 393 (ED NY  1976), Grable v. Sec. of H.E.W., 442 F.Supp. 465 (WD NY  1977); 3rd Cir.  Greth v. Califano, 438 F.Supp. 1270 (ED Penn. 1977); 9th Cir.  Lightfoot v. Mathews, 430 F.Supp. 620 (ND Cal.  1977), Chism v. Sec. of H.E.W., 457 F.Supp. 547 (CD Cal.  1978). Though the Fifth Circuit has never adopted the rule, research does not reveal that it has ever been expressly considered by any Court of this Circuit, nor that it has been considered and rejected by any Court of the United States. It is the opinion of this Court that the rule is a sound and fair one and we adopt it for purposes of our review here.
Since the Administrative Law Judge found that the claimant was unable to return to work in the geriatric hospital, the shift of the burden of proof provided for by the rule just discussed occurred. If, after claimant had met her initial burden the finding of the agency was to be against her, it was the responsibility of the Administrative Law Judge to state, in the context of the hearing itself, what items of evidence or facts subject to administrative notice inclined him to so rule. The claimant would then have had an opportunity to answer that evidence and the hearing would have served its purpose.
Instead, in the actual case, the issues which finally were decisive were never clearly delineated at the hearing. The hearing focused vaguely on the severity of claimant's pain and the scope of her normal daily activities, whether she cooked her own meals, did housework, etc. But the decision of the agency, as it finally appeared, involved specific findings that the claimant was competent to do particular work such as cafeteria worker, crossing guard, or child care, and that the disabilities proved did not match with any of those on the official list of disorders in Subpart P, Appendix 1 of 20 C.F.R. 404.1504.
The Administrative Law Judge ought to have heard argument on each of these specific issues, i. e., Was claimant able to perform the duties of a crossing guard? Is any item on the official list of disabilities substantially equivalent to the disabilities proved by the claimant? etc. For instance, the decision of the ALJ contains the finding that
. . . the medical evidence shows that the claimant's conditions are not attended by clinical findings that meet or equal in severity the requirements of any of the disorders listed in the Appendix to Subpart P of Regulations No. 4 or the corresponding provisions of Regulations No. 16.
This is a most crucial finding. Yet the hearing never concerned itself with the official list of disorders in question. The Appendix mentioned covers 23 closely printed pages of the Code of Federal Regulations. The portion with the most obvious relevance to the present case appears at 20 C.F.R. Section 404 at page 358 and lists as a disability within the meaning of the statute in question a herniated nucleus pulposus
with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and

*131 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
Which of these necessary elements was found missing by the ALJ the record does not reveal. Certainly, the presence or absence of any of them was not a subject of argument at the hearing.
Doubtless the problem here springs in large part from the difficulty experienced by the ALJ in combining the offices of judge and attorney for the agency. There is a real danger that, if the ALJ states in the hearing arguments against the applicant's claim, the applicant will conclude that he is taking part against her and that she is being treated unfairly. To some extent this tension between roles is inevitable, given the structure of these administrative hearings. It can, however, be lessened considerably by employing witnesses such as vocational experts, in appropriate cases, to frame the issue against the claimant.
Ordinarily, the testimony of a vocational expert is required in order to support a finding that alternate jobs which the claimant can do exist in the national economy. Smith v. Califano, 592 F.2d 1235, 1236 (CA 4  1976).
At any rate, it cannot be said that the essentials of a fair hearing have been preserved where a claimant comes forward and meets her initial burden of proof and is sent home, only to be informed later that she was adequately rebutted by evidence never held up to her attention.
In the most recent supplement to his Administrative Law Treatise, Professor Kenneth Culp Davis states,
Two main facts about BHA [Bureau of Hearings and Appeals of the Social Security Administration] hearings are that the ALJ has the affirmative responsibility for developing facts on both sides, and that claimants are unrepresented by counsel in about 70% of the cases.
What can be learned by close examination of the official notice problem of BHA is that the focal point has to be the adequacy of procedural protection when facts are noticed; the crucial question is whether or not the claimant is given sufficient opportunity to meet the noticed facts. Davis, Administrative Law of The Seventies, 1978 Supp. p. 109.
Here, the applicant was represented by an attorney, a circumstance that ought to greatly increase the usefulness and efficiency of the proceedings. But, the attorney's skills were wasted, because the rationale upon which the Government rested its decision to deny benefits was never presented for argument.
Professor Davis further notes that in June, 1978, the Administrative Conference adopted recommendation 78-2, providing:
In the absence of regulations structuring the administrative law judge's discretion when evaluating vocational factors, administrative law judges should take official notice at the hearing of vocational facts that can be established by widely recognized documentary sources or on the basis of agency experience. Davis, supra, at p. 109.
Note the crucial words at the hearing. Facts not in evidence should not be noticed ex parte, as it were. Even facts in evidence ought not be given decisive weight where they are buried among a mass of exhibits and reports and have never been the subject of consideration by the adverse parties, either in brief or at a hearing.
In summary, we conclude that where the claimant in a Social Security Disability case establishes inability to resume his former occupation, the burden of proof shifts to the Secretary of Health, Education and Welfare to prove that there is some type of substantial gainful employment available in the national economy, which the claimant is able to perform. Often it will be desirable to employ the testimony of a vocational expert to this end. Such testimony will not always be necessary, however, since it will often be possible for the Secretary to meet his burden by taking administrative notice of vocational facts which are common knowledge or which are familiar to the experienced personnel of the agency, Chavies v. Finch, 443 F.2d 356 (CA 9  1971) and McLamore v. Weinberger, 538 F.2d 572 (CA *132 4  1976). Where the Secretary seeks to meet his burden of proof by taking administrative notice of such facts, however, it is absolutely essential that the claimant have an opportunity to answer them, see Administrative Conference Recommendation 78-2, above. Because failure of the Secretary to properly meet his burden of proof vitiated the usefulness of the hearing resulting in a record too incomplete to preserve claimant's right of review, we remand this case to the Secretary for a new hearing.
Finally, we note that the failure of the parties below to adequately frame and present crucial issues for hearing and argument only began a pattern that was continued on appeal of the matter to this Court.
If this Court has misstated the law on any of the interesting points discussed above, it is likely because it has only had the benefit of claimant's argument, leavened by such research as it was able to do independently. The eloquent fifteen page brief filed by the Government shows no sign that its author ever read the claimant's brief. Evidently the Government anticipated an appeal based on all the usual grounds, in what had all the earmarks of a completely routine case, and prepared its argument accordingly. Claimant elected to appeal on other grounds.
Our whole adjudicatory system will be rendered useless unless the participants in its processes speak clearly and to the point; listen to one another carefully; and respond clearly and to the point. True facts and correct law only emerge from the dialectic of argument and counter-argument. The parties to this litigation have been talking past one another.
Judgment will be entered accordingly.


308 B.R. 858 (2003)
In re ARTRA GROUP, INC., Debtor.
No. 02 B 21522.
United States District Court, N.D. Illinois, Eastern Division.
December 2, 2003.
*859 James A Chatz, Miriam R. Stein, Arnstein & Lehr, Chicago, IL, for Debtor.
Gerald Saltarelli, Butler Rubin Saltarelli & Boyd, Chicago, IL, Special Counsel to the Debtor.
Brian E. Mahoney, Cohn, Baughman & Martin, Chicago, IL, Counsel to Objector Century Indemnity Company.

MEMORANDUM OPINION
PAMELA S. HOLLIS, Bankruptcy Judge.
This matter comes before the court on Debtor's Application for Entry of Order Authorizing Retention and Employment of Leonard J. Silver and First Risk Management, Inc. as an Expert Witness and For Payment of Retainer. Century Indemnity Company objected to the application on the grounds that Silver has an actual conflict of interest. For the reasons stated below, the court finds that Silver is not a professional person whose retention must be approved under § 327 and denies the application as unnecessary.[1]

BACKGROUND
In 1975, Artra acquired Synkoloid through a series of transactions, and assumed all of Synkoloid's liabilities arising after 1962. Eventually it became apparent that those liabilities were massive, because Synkoloid allegedly manufactured products that contained asbestos. As of December 31, 2000, Artra was a defendant in pending lawsuits involving over 46,000 plaintiffs asserting claims related to Synkoloid's products. Artra's daily operations have been principally funded by its liability insurance policies.
On March 6, 2001, Artra filed an action in the Circuit Court of Cook County seeking a declaration that certain disputed insurance carriers owed a duty to defend and to indemnify Artra for numerous asbestos related claims. On August 7, 2002, Artra filed a notice of removal of that proceeding to this court. The reference to bankruptcy court has subsequently been withdrawn and the litigation is now pending before Judge Gottschall in the U.S. District Court for the Northern District of Illinois.
Artra retained Gerald G. Saltarelli as special counsel to pursue that litigation. Saltarelli recommended that Artra employ an expert witness to provide testimony in the litigation regarding Artra's entitlement to proceeds of the insurance policies. Artra therefore seeks authority to employ Silver and First Risk to provide testimony relating to: (1) the existence, terms and conditions of the Debtor's "LB" policies issued by Insurance Company of North America; and (2) the issuance and effect of the extension of coverage by American Motorists Insurance Company between April 1 and May 1, 1978. First Risk does not intend to apply to the court for compensation for the professional services it renders.
Century Indemnity objected to the application on the grounds that Silver has a conflict of interest. In addition, Century Indemnity alleged that it will be moving to strike Silver's testimony so retention would be meaningless, and asked that if retention is approved, proceeds from Artra's insurance policies not be used to pay Silver.

*860 DISCUSSION
According to 11 U.S.C. § 327(a), "the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons . . .". Artra, as a debtor-in-possession, has all the rights and powers of a trustee pursuant to § 1107, and may employ professional persons under § 327.
The threshold question, however, is whether Silver is a professional person whose employment must be approved. In determining whether a debtor's employment of a person must be approved under § 327, courts have "looked beyond labels . . . by looking at the role the party played in the administration of the bankruptcy estate." Bicoastal Corp. v. Clear (In re Bicoastal Corp.), 149 B.R. 216, 218 (Bankr.M.D.Fla.1993). A "professional person" has been interpreted to mean one who plays a central role in the administration of the bankruptcy estate. See In re Sieling Assocs. Ltd. P'ship, 128 B.R. 721, 723 (Bankr.E.D.Va.1991). Those who provide services to the debtor that would have been necessary even if the petition had not been filed are not considered professional persons, even though they may be members of a professional community. See In re D'Lites of Am., Inc., 108 B.R. 352, 355 (Bankr.N.D.Ga.1989).
"Courts have recognized various duties to be central to the administration of the estate, including assisting in the negotiation of the debtor's plan, assisting in the adjustment of the debtor/creditor relationship, disposing of the assets of the estate and acquiring assets on behalf of the estate." Elstead v. Nolden (In re That's Entertainment Mktg. Group, Inc.), 168 B.R. 226, 230 (N.D.Cal.1994) (citations omitted). In That's Entertainment, an accountant was retained solely to testify as an expert witness in intellectual property litigation.
An expert witness is not in the position to formulate strategy or to manage the estate and the liabilities of the estate. While one could argue that the litigation involves an attempt to "acquire assets on behalf of the estate," the expert witness plays only a tangential role in this process, and thus under these circumstances the accountants were not "professionals" within the meaning of § 327.[FN 4]
FN 4 Although the litigation itself could be considered central to the administration of the estate, the attorney controls the litigation  the expert witness merely offers evidence in that case. Further, the attorneys are required to be approved by the court under § 327. Such approval is required in part because the position carries with it responsibility and discretion to effectively carry out necessary litigation. These responsibilities include engaging necessary expert witnesses for the litigation. It should also be noted that this discretion is limited by § 330 of the Bankruptcy Code which provides that the bankruptcy court shall review (and may deny) all applications for expenses.
168 B.R. at 230 and n. 4 (citation omitted). See also In re Napoleon, 233 B.R. 910, 913 (Bankr.D.N.J.1999) ("Most courts have come to the conclusion that there is no requirement of prior court authorization for retention of an expert witness because an expert is not a `professional person' within the meaning of § 327.") (footnote omitted with string citation to cases).
Applying this analysis to the retention matter before the court, it appears that Silver is not a professional person under § 327. He is not playing a role in the administration of the estate, but instead providing expert advice for a litigation matter that was commenced long before *861 this bankruptcy case was filed. Although the outcome of that litigation will certainly impact the resolution of this case and Artra's potential reorganization, Silver's role is not to assist with plan negotiations, creditor relationships, or the acquisition and disposition of assets.
Furthermore, Silver does not appear to have any discretion and autonomy with respect to the administration of the estate. This is in sharp contrast to the entity retained to review and process 250,000 personal injury asbestos claims in In re ACandS, Inc., 297 B.R. 395 (Bankr.D.Del.2003). In that case, the court found that the entity in question would be making "crucial judgments about the allowability of asbestos claims." Id. at 403. Although in that case, as in this one, the main issues were insurance coverage and asbestos claims, Silver's role here is limited to that of an expert witness assisting special counsel.
Consequently, the court need not determine whether Silver's alleged conflict of interest prohibits his employment. Furthermore, Century Indemnity's contention that Silver should not be retained because portions of his testimony will be inadmissible is precisely the sort of detailed involvement in the nuances of litigation that the court seeks to avoid.
It seems somewhat improper for the Bankruptcy Court to be intimately involved in directing and overseeing litigation which is to be brought before it, or before the District Court. The Trustee and the Attorney for the Trustee are in a better position to evaluate the merits and the possible return to the estate. It therefore appears that this is an area where the Court should maintain some discrete distance if there are not countervailing factors requiring the Court's intrusion. In this way, the Court may avoid the appearance of impropriety, partiality or influence.
In re Babcock Dairy Co. of Ohio, Inc., 70 B.R. 691, 693 (Bankr.N.D.Ohio 1987).
Finally, Century Indemnity's request that proceeds from insurance policies not be used to pay Silver is premature. Special counsel will pay the retainer and any fees and will presumably seek reimbursement of those expenditures in its fee application. At that time the court can determine whether that expense was actual and necessary. The source of funds for such reimbursement is not a question properly before the court at this time.

CONCLUSION
For the reasons stated above, the application is denied. Silver's employment need not be approved under § 327 because he is not a professional person pursuant to that section. If special counsel in its judgment hires Silver as an expert witness, it may seek reimbursement of that expense through application to this court.
NOTES
[1]  The court read its ruling into the record on December 2, 2003, in substantially the same form as this Memorandum Opinion. Since the appeal period runs from the date the opinion is entered on the docket, there is no prejudice in designating this written opinion as having been entered on that day.


189 F.Supp. 150 (1960)
UNITED STATES of America ex rel. John SADOWY, Petitioner
v.
Edward M. FAY, as Warden of Greenhaven Prison, Respondent.
United States District Court S. D. New York.
March 28, 1960.
*151 John Sadowy, pro se.
No appearance for respondent.
CASHIN, District Judge.
This is a petition for a writ of habeas corpus by a State court prisoner presently incarcerated within the jurisdiction of this court under a judgment of conviction of the County Court of the County of Queens for robbery in the first degree, grand larceny in the first degree and assault in the second degree.
Under the provisions of § 2243 of Title 28 U.S.C. I entertain the application but deny it since it appears from the application itself that the person detained is not entitled to the issuance of a writ.
The only ground raised by the petitioner to support the contention that he is in custody in violation of the Constitution or laws of the United States is that the trial court refused to allow into evidence at the trial testimony as to the result of "lie detector" tests he had taken, which tests would tend to show the innocence of the petitioner. Perhaps it is true, as petitioner contends, that eventually evidence of the result of "lie detector" tests will be admissible. However, New York State has not as yet gone so far. People v. Forte, 1938, 279 N.Y. 204, 18 N.E.2d 31, 119 A.L.R. 1198; contra People v. Kenny, Queens Co. Ct.1938, 167 Misc. 51, 3 N.Y.S.2d 348. Rulings in the Federal Court are to the same effect. Frye v. United States, D.C.Cir.1923, 54 App.D.C. 46, 293 F. 1013, 34 A.L.R. 145; Marks v. United States, 10 Cir., 1958, 260 F.2d 377, certiorari denied 1959, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302. In fact, a habeas corpus petition on this very ground has been dismissed in a District Court (United States ex rel. Szocki v. Cavell, D.C.W.D.Pa.1957, 156 F.Supp. 79).
The petitioner seems to feel that this court should independently review the testimony of the expert who testified at the voir dire in the state court trial. I cannot see where such a review would serve any purpose whatsoever. With the exception of People v. Kenny, supra, including the case of Boeche v. State, 1949, 151 Neb. 368, 37 N.W.2d 593, strongly relied upon by petitioner, the courts have universally rejected evidence of "lie detector" tests whether offered by the prosecution or the defense. cf. annotation 23 A.L.R.2d 1306, et seq.
The application to proceed in forma pauperis is granted.
The application for a writ of habeas corpus is denied.
It is so ordered.


December 17, 2019

                                                                         Supreme Court

                                                                         No. 2019-36-Appeal.
                                                                         (KD 18-58)
                                                                         No. 2019-38-Appeal.
                                                                         (KD 18-59)

          Midland Funding LLC, assignee of Chase       :
                     Bank USA, N.A.

                              v.                       :

                    Tammy Turcotte Raposo.             :

                      NOTICE: This opinion is subject to formal revision before
                      publication in the Rhode Island Reporter. Readers are requested to
                      notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                      Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                      3258 of any typographical or other formal errors in order that
                      corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2019-36-Appeal.
                                                                    (KD 18-58)
                                                                    No. 2019-38-Appeal.
                                                                    (KD 18-59)

   Midland Funding LLC, assignee of Chase            :
              Bank USA, N.A.

                       v.                            :

           Tammy Turcotte Raposo.                    :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Chief Justice Suttell, for the Court. The defendant, Tammy Turcotte Raposo, appeals

from the entry of two Superior Court judgments in favor of the plaintiff, Midland Funding, LLC

(Midland), in these consolidated credit-card debt collection appeals. Raposo contends on appeal

that the hearing justice erred in granting Midland’s motions for summary judgment. This case

came before the Supreme Court for oral argument pursuant to an order directing the parties to

appear and show cause why the issue raised in this appeal should not be summarily decided. After

a close review of the record and careful consideration of the parties’ arguments, we shall decide

the appeal at this time. For the reasons stated in this opinion, we affirm the judgments of the

Superior Court.

                                                 I

                                 Facts and Procedural History

       Midland filed two separate civil book-account actions in Third Division District Court

alleging that Raposo owed Midland, as the assignee of Chase Bank USA, N.A., the unpaid balance

due on two credit-card accounts. The first complaint sought to recover the sum of $2,200.82 plus

                                               -1-
costs. Raposo answered the complaint with a letter in which she “den[ied] any and all statements

set forth in [her] name” within Midland’s complaint and stated she had “no recollection or

knowledge of” the claims asserted against her. Midland filed a motion for summary judgment.

Raposo did not file an objection to the motion. The District Court granted Midland’s motion.

       The second complaint sought to recover the sum of $9,705.78 from a different credit-card

account in Raposo’s name. Raposo answered in a letter which stated that she had “no knowledge

of this complaint[.]” Midland filed a motion for summary judgment, to which Raposo again did

not file an objection. The District Court granted Midland’s motion.

       Raposo appealed to the Superior Court from the judgments in both cases. Midland filed a

motion for summary judgment in each appeal, to which Raposo objected, attaching identical

affidavits in which she stated that, “[t]o the best of [her] knowledge,” she had never opened the

accounts at issue or used the credit cards. Midland filed responses to Raposo’s objections,

including billing records that detailed purchases and payments made by Raposo on both accounts.

       The hearing justice consolidated the cases for argument. After reviewing the record and

hearing arguments, the hearing justice found that Raposo’s affidavit was not sufficient to create a

genuine issue of material fact. The hearing justice reasoned that, without more than a “self-

serving” statement that Raposo did not recall opening these accounts or using the credit cards,

there was no basis upon which he could find an issue of fact as to the ownership of the accounts.

Accordingly, the hearing justice granted summary judgment as to each of the two book-account

claims, and final judgments were entered in favor of Midland for the full balance of each account

plus costs. Raposo filed a timely notice of appeal from each judgment, and we consolidated the

appeals before oral argument.

                                               -2-
                                                  II

                                        Standard of Review

       This Court reviews the grant of a motion for summary judgment de novo. DiBattista v.

State, 808 A.2d 1081, 1085 (R.I. 2002). “We will affirm a summary judgment if, after reviewing

the admissible evidence in the light most favorable to the nonmoving party, we conclude that no

genuine issue of material fact exists and that the moving party is entitled to judgment as a matter

of law.” American Express Bank, FSB v. Johnson, 945 A.2d 297, 299 (R.I. 2008) (brackets

omitted) (quoting Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638 (R.I. 2005)). “[A] litigant

opposing a motion for summary judgment has the burden of proving by competent evidence the

existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in

the pleadings, mere conclusions or mere legal opinions.” Id. (quoting Tanner v. Town Council of

East Greenwich, 880 A.2d 784, 791 (R.I. 2005)).

                                                 III

                                             Discussion

       Raposo argues that the trial justice erred in granting Midland’s motion for summary

judgment as to both book-account cases because, she asserts, she has set forth facts that established

a genuine issue of material fact as to whether the credit-card accounts were in fact her accounts.

Midland counterargues that Raposo’s affidavit constituted only a conclusory denial and therefore

was insufficient to give rise to a genuine issue of material fact.

       Raposo asserts that her affidavit, in which she disclaims any memory of opening or using

the credit-card accounts, created an issue of fact as to whether the accounts at issue were hers.

However, it is well established that there is “an affirmative duty” on Raposo, as the adverse party

responding to a motion for summary judgment, “to set forth facts showing that there is a genuine

                                                 -3-
issue of fact that will be resolved at trial. Such party must act diligently and in good faith to rebut

the evidence presented in support of the motion.” American Express Bank, 945 A.2d at 300

(quoting Egan’s Laundry & Cleaners, Inc. v. Community Hotel Corporation of Newport, 110 R.I.

719, 723, 297 A.2d 348, 351 (1972)). The mere assertion that there are circumstances which, if

believed, would serve to nullify Midland’s claim without any factual context is insufficient to place

Raposo beyond the reach of summary judgment. See Egan’s Laundry & Cleaners, 110 R.I. at 723,

297 A.2d at 351.

        Raposo’s reliance on Mitchell v. Mitchell, 756 A.2d 179 (R.I. 2000), in which this Court

held that it could not pass on the weight or the credibility of evidence, even if weak or improbable,

is misplaced. In Mitchell, the Court found that there was a genuine issue of material fact as to

whether a mother and her son had forgiven a debt owed by the mother’s other son (the debtor) to

the family trust. Mitchell, 756 A.2d at 185. To establish the existence of a material fact, the debtor

put forth his own deposition testimony and authored an affidavit that described the conversation

in which his mother allegedly orally forgave the debt owed to the family trust. Id. at 184-85. The

debtor also put forth the affidavit of his wife, which alleged that she was present when the mother

orally waived the debt. Id. at 184. Moreover, the debtor pointed to context and clear assertions of

fact in the record, including that the debtor’s mother gifted a deed to family property to her other

son in an effort to reimburse him for the debt owed by the debtor. Id. at 184-85. The debtor asserted

that, when the other son accepted the property, he impliedly waived his brother’s (the debtor’s)

debt to the trust. Id. Lastly, the debtor put forth the affidavit of his mother’s close friend as support

that his mother gifted the property to her nondebtor son to “equal * * * out” the funds gifted to

each son. Id. at 183. The Court found that, however weak or improbable the debtor’s assertions

                                                  -4-
of “gift-giving” and “loan-forgiveness” appeared, enough evidence was asserted to create a

genuine issue of fact. Id. at 185.

       Here, in support of its motions for summary judgment, Midland presented billing records

and credit-card statements that detailed both purchases and payments made on the credit-card

accounts at issue. Those billing statements were addressed to Raposo at her home address.

Raposo’s affidavit did not challenge any of the evidence presented in support of Midland’s motion

and so failed to establish a material factual dispute to be resolved by a trier of fact. Raposo also

failed to make any additional argument that she had not received the billing statements or provide

any evidence to contest her liability as to the account balances. That Raposo was unable to

remember opening credit-card accounts or using said credit cards to make purchases does not

create a factual dispute regarding ownership of the accounts at issue. As such, Raposo failed to

establish a genuine issue of material fact in these cases.

                                                 IV

                                            Conclusion

       For the reasons stated in this opinion, we affirm the judgments of the Superior Court and

remand the papers to the Superior Court.

                                                -5-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS

                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Midland Funding LLC, assignee of Chase Bank USA,
Title of Case
                                     N.A. v. Tammy Turcotte Raposo.
                                     No. 2019-36-Appeal.
                                     (KD 18-58)
Case Number
                                     No. 2019-38-Appeal.
                                     (KD 18-59)
                                     December 17, 2019
Date Opinion Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell
                                     Kent County Superior Court
Source of Appeal

                                     Associate Justice Richard A. Licht
Judicial Officer From Lower Court
                                     For Plaintiff:

                                     Kara Thorvaldsen, Esq.
Attorney(s) on Appeal                Paul G. Manning, Jr., Esq.
                                     For Defendant:

                                     Stephen A. Robinson, Esq.

SU‐CMS‐02A (revised June 2016)


91 F.3d 133
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Charles Ulysses SMITH, Plaintiff--Appellant,v.UNITED STATES ARMY;  Board of Military Correction;  Board ofMilitary Review, Defendants--Appellees.
No. 96-1103.
United States Court of Appeals, Fourth Circuit.
Submitted June 20, 1996.Decided June 28, 1996.

Charles Ulysses Smith, Appellant Pro Se.
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
PER CURIAM:

1
Appellant appeals from the district court's order dismissing his pro se complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 2675-80 (1995).  We have reviewed the record and the district court's opinion and find no reversible error.  Accordingly, we affirm on the reasoning of the district court.  Smith v. United States Army, No. CA-95-3483-H (D. Md. Dec. 6, 1995;  Jan. 24, 1996).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

2
AFFIRMED.


                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00063-CR

KENNETH HOWELL KIRK,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee

                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2006-1240-C1

                          MEMORANDUM OPINION

      Kenneth Howell Kirk was convicted of two counts of Fraudulent Use of

Identifying Information and one count of Theft from the Elderly. See TEX. PENAL CODE

ANN. §§ 31.03(f)(3), 32.51 (Vernon 2006). He filed a notice of appeal. He has now filed a

Motion to Dismiss Appeal requesting this Court to withdraw the notice of appeal and

dismiss the appeal. Kirk personally signed the Motion to Dismiss.

      Accordingly, this appeal is dismissed. TEX. R. APP. P. 42.2(a).

                                         TOM GRAY
                                         Chief Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Appeal dismissed
Opinion delivered and filed April 1, 2009
Do not publish
[CR25]

Kirk v. State                               Page 2


66 Cal.App.2d 750 (1944)
HARRY OWEN et al., Appellants,
v.
R. F. BEAUCHAMP, Respondent.
Civ. No. 14611.
California Court of Appeals. Second Dist., Div. Two.
Nov. 10, 1944.
 John C. Miles and Lee J. Myers for Appellants.
 Sidney A. Moss for Respondent.
 MOORE, P. J.
 The question for decision is whether the trial court correctly instructed the jury to find for defendant, a dentist, who allegedly had permitted dental wax to remain upon the floor of his office which was visited by appellant Elly [Owen] on November 9, 1942. On arriving there, plaintiff crossed the linoleum-covered floor in the reception hall and entered a carpeted room, a total distance of about 53 feet from the elevator. She then waited about an hour, during which time she observed that there was no foreign substance on her shoes. On being called for her treatment she walked across a portion of the same linoleum-covered floor for about 12 feet. At that point she stepped upon the wax, slipped and fell to her injury. Upon being removed to another room she found pink dental wax on the sole of her right shoe under the ball of the foot. It was proved at the trial that wax of the same quality as that *752 which adhered to appellant's shoe was used in respondent's laboratory and workrooms.
 Appellant contends (1) that from the presence of the wax at the point where she fell it was a necessary inference that the dental wax belonged to respondent; (2) that from such inference the presumption arises that it was through appellee's negligence that it was there when contacted by appellant; (3) that it is a fair inference that had respondent exercised the care commensurate with his duty to the public the wax would not have been in a place where it could be trodden by his patients; (4) that it was therefore incumbent upon appellee to explain the presence of the wax on the floor in order to overcome the presumption of his negligence.
 In making these contentions appellant overlooks certain established principles governing the rights and duties of those who maintain establishments to which the public are invited. [1] The invitor is obligated to exercise only ordinary care in keeping his premises in a safe condition. (Brown v. Holzwasser, Inc., 108 Cal.App. 483 [291 P. 661]; Corbett v. Spanos, 37 Cal.App. 200 [173 P. 769].) The owner of a place of business open to the public is not an insurer of the safety of his invitees. (Crawford v. Pacific States Savings & Loan Co., 22 Cal.App.2d 448 [71 P.2d 333].) [2] In order to establish the liability of the proprietor of a place of business to which the public are invited it is necessary that it be shown that the proprietor had knowledge of the presence of the dangerous condition of his premises (Crawford v. Pacific States Savings & Loan Co., supra; Williams v. Owl Drug Co., 10 Cal.App.2d 621 [52 P.2d 499]), or proof must be made that the condition had existed for such a period of time as to justify the inference that the proprietor had knowledge of its existence. (Gold v. Arizona Realty & Mtg. Co., 12 Cal.App.2d 676 [55 P.2d 1254]; Stoddard v. Roberts Public Markets, Inc., 27 Cal.App.2d 166 [80 P.2d 519]; Gabriel v. Bank of Italy, 204 Cal. 244 [267 P. 544].) In the Gold case it was held that since there was no showing that the substance which caused plaintiff's fall had been on the stairway any length of time or had been left there by defendant or his agent, a determination that its presence was due to the negligence of the defendant could be derived by conjecture only and for this reason plaintiff could not recover. In Spicknagle v. C. S. Woolworth & Co., 236 Pa. 496 [84 A. 909, Ann.Cas. 1914A 132], the plaintiff slipped and fell on an oiled floor. No specific *753 act of negligence having been proved, the judgment of nonsuit was affirmed. In Cartoof v. F. W. Woolworth, 262 Mass. 367 [160 N.E. 109], the plaintiff invitee could not recover for lack of any proof that the foreign substance had been upon the stairway for such time as would justify a finding that the proprietor should have seen and removed the substance prior to the accident.
 Appellant cites a number of California authorities to show that negligence may be inferred from the mere presence of a dangerous condition. (Clampett v. Shopping Bag Markets, 29 Cal.App.2d 410, 412 [84 P.2d 543]; Tuttle v. Crawford, 8 Cal.2d 126 [63 P.2d 1128]; Hatfield v. Levy Brothers, 18 Cal.2d 798 [117 P.2d 841]; DeGraf v. Anglo California National Bank, 14 Cal.2d 87 [92 P.2d 899].) These citations do not establish any such general rule. On the contrary they exhibit the true rule, to wit: that each case must be determined upon its own facts by the application of certain general principles which control the relationship of invitor and invitee. The Clampett and the Tuttle cases grew out of wet floors in public market places in each of which the existence of the dangerous condition could have been attributed to no agency other than that of the proprietor. The Hatfield case was based upon a slippery floor due to the application of an extra quantity of wax to the floor by the proprietor. In the DeGraf case the plaintiff was a tenant of the building where he was injured by falling into the shaft of the freight elevator left open by others. It was held that in the exercise of ordinary care the management of the building should have foreseen the likelihood of the use of the freight elevator by other tenants on the night plaintiff suffered his injuries.
 [3] Where there is evidence that the dangerous condition existed and that invitor had caused it or should have known of its presence by reason of the lapse of time, then the fact of liability is to be determined from all of the evidence. [4] But in the absence of such proof it is the duty of the court to direct a verdict for the defendant. (Stoddard v. Roberts Public Markets, Inc., supra; Perumean v. Wills, 8 Cal.2d 578 [67 P.2d 96].) [5] To constitute actionable negligence it must be shown that the defendant owed a duty to protect plaintiff from injury and that he failed to discharge it. (Brown v. Holzwasser, Inc., 108 Cal.App. 483 [291 P. 661].) That *754 defendant was occupant or owner of the visited premises is not in itself sufficient.
 The authorities cited by appellant in support of her argument that the presence of the wax on the floor imputed guilty knowledge and consequent liability on the part of defendant (Morton v. Manhattan Lunch Co., 41 Cal.App.2d 70 [106 P.2d 212]; General Petroleum Corp. v. City of Loss Angeles, 42 Cal.App.2d 591 [109 P.2d 754]; Baumann v. Harrison, 50 Cal.App.2d 173 [122 P.2d 591]; Blank v. Coffin, 20 Cal.2d 457 [126 P.2d 868]; Rovengo v. San Jose K. of C. Hall Assn., 108 Cal.App. 591 [291 P. 848]; Gish v. Los Angeles Railway Corp., 13 Cal.2d 570 [90 P.2d 792]) are all distinguishable. None of them holds that the mere injury of the invitee on an invitor's floor warrants the inference of negligence. The Gish case arose out of a streetcar accident which entitled the plaintiff to the application of the doctrine of res ipsa loquitur. [6] That doctrine is an exception to the general rule that negligence must be shown. (Lucid v. E. I. Dupont etc. Powder Co., 199 F. 377 [118 C.C.A. 61, L.R.A.1917E 182].) [7] It does not apply here and could not apply unless the instrumentality causing the injury was under the exclusive control of the party charged with responsibility. (Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [40 P.2d 873].) [8] The wax found on appellant's shoe could have been imported by another invitee or by an employee of respondent one minute before appellant fell, without the knowledge of respondent. Inasmuch as the evidence of the presence of the wax on the floor did not warrant an inference of appellee's negligence the court correctly instructed the jury to return a verdict for defendant. (Lacey v. Porter, 103 Cal. 597 [37 P. 635].)
 Judgment affirmed.
 McComb, J., concurred.
 WOOD (W. J.), J.
 I dissent.
 A jury could reasonably draw the inference that defendant or his employees carelessly dropped the dental wax upon the floor of his reception room, and that he "was negligent in permitting such a substance to be lying upon the floor. ..." (Williamson v. Hardy, 47 Cal.App. 377, 379 [190 P. 646], where the plaintiff slipped and fell upon the floor of the defendant's market through having *755 stepped upon a piece of oiled paper made slippery by the adhesion to it of scraps of fresh meat.)


557 So.2d 1311 (1989)
Ex parte James Harvey CALLAHAN.
(Re James Harvey Callahan v. State).
88-1139.
Supreme Court of Alabama.
November 17, 1989.
Rehearing Denied January 12, 1990.
Harold P. Knight and Charles E. Caldwell, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
Petitioner, James Harvey Callahan, was convicted on November 7, 1987, of the capital offense of murder during a kidnapping in the first degree, or an attempt thereof, and was sentenced to death. Ala.Code 1975, § 13A-5-40. The Court of Criminal Appeals affirmed; see Callahan v. State, 557 So.2d 1292 (Ala.1989).
This petitioner was previously before this Court in Ex parte Callahan, 471 So.2d 463 (Ala.1985), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). There, this Court reversed the judgment and remanded that cause for a new trial because the State had failed to lay the proper predicates in attempting to admit statements made by the defendant. Specifically, the State had failed to show that the statements had been made voluntarily and after the proper Miranda warnings had been given. However, as pointed out in the Court of Criminal Appeals' most recent opinion, the record in the instant case clearly shows that the proper predicate was laid for admission of each of Callahan's statements.
After carefully reviewing the record from the trial court, after reviewing the Court of Criminal Appeals' thorough opinion, especially its treatment of the admissibility of the defendant's statements, and after considering carefully the propriety of the death penalty, we can find no error. The judgment of the Court of Criminal Appeals is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.