                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 23, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,
    ex rel. G ILB ER T TR UJILLO ;
    CH AD KILLIAN ; RO BERT L.
    JO SEPH ; A LFO N SO TR UJILLO;
    SAM ULE L. BEENE, as individuals,

                Plaintiffs-Appellants,

    v.                                                 No. 06-4305
                                                (D.C. No. 2:02-CV-162-TC)
    GROUP 4 FA LCK, a foreign                            (D. Utah)
    corporation and the Successor of The
    W ackenhut Corporation, a Florida
    corporation; JOHN CO NNELL; JEFF
    G RU EN D ELL; D EN N IS M U RRAY;
    RICHARD SM ITH , as individuals,

                Defendants-Appellees.

                             OR D ER AND JUDGM ENT *

Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiffs Gilbert Trujillo, Chad Killian, Robert L. Joseph, Alfonso Trujillo,

and Samuel L. Beene appeal from the district court’s orders denying their motions

for partial summary judgment, granting defendant Wackenhut Corporation’s 1

motion to dismiss their Racketeering Influenced and Corrupt Organizations

(RICO) claims, granting W ackenhut’s motion to dismiss Gilbert Trujillo’s

employment discrimination claims for failure to allege exhaustion of

administrative remedies, granting W ackenhut’s motion for summary judgment on

Joseph, Beene, and Alfonso Trujillo’s employment discrimination claims, and

denying plaintiffs’ motion to alter or amend the judgm ent. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                    Background

      The plaintiffs w ere all transit security officers w orking in the Utah Transit

Authority (UTA) public transit system. They were employed by W ackenhut, who

contracted with UTA to provide security services. The parties are familiar w ith

the plaintiffs’ factual allegations and no further discussion of them is necessary.

W e will, however, briefly discuss the somewhat complicated procedural

background of this case.

1
      Defendant-Appellee Group 4 Falck is the successor to W ackenhut
Corporation. During the district court proceedings, however, the district court
used the name W ackenhut to refer to this defendant. Because of this, we will use
W ackenhut’s name in this decision. W ackenhut is also used to collectively cover
the corporate defendant and its employees: John Connell, Jeff Gruendell, Dennis
M urray, and Richard Smith.

                                         -2-
      The plaintiffs’ initial complaint was filed against W ackenhut, UTA, and six

individual defendants: John Connell, David Lamph, John W ittmaak, Jeff

Gruendell, Dennis M urray, and Richard Smith. Before defendants answered the

original complaint, plaintiffs filed a First Amended Complaint alleging six causes

of action: 1) Employment Discrimination; 2) False Claim/W histle Blowing/En

Qui Tam; 3) Conspiracy to O bstruct Justice; 4) State W histle-Blow ing Claims;

5) Intentional Infliction of Emotional Distress; and 6) RICO.

      In January 2004, the district court granted UTA and Lamph’s motion for

summary judgment on all claims. Plaintiffs have not appealed from that decision.

In that same January 2004 order, the district court denied plaintiffs’ motions for

partial summary judgment. The plaintiffs have appealed from this decision. The

district court also granted Wackenhut’s motion to dismiss four of the six causes of

action: a) False Claim/En Qui Tam; b) Conspiracy to Obstruct Justice;

c) Intentional Infliction of Emotional Distress; and d) RICO. The plaintiffs have

only appealed the dismissal of their RICO claim.

      Plaintiffs then sought leave to file a Second Amended Complaint, which

restated their employment discrimination claims, eliminated their state w histle

blowing claim, added another claim under RICO, and eliminated UTA and Lamph

as defendants. In M ay 2004, the court denied plaintiffs’ request to add another

RICO claim, but granted the motion in all other respects. Plaintiffs then filed a

Third Amended Complaint that complied with the district court’s order.

                                         -3-
      In July 2004, the remaining defendants filed a motion to dismiss the

employment discrimination claims of Gilbert Trujillo and Killian for failing to

allege exhaustion of administrative remedies. The district court granted the

motion. On appeal, plaintiffs seek only to challenge the dismissal of Gilbert

Trujillo’s employment discrimination claims.

      In November 2005, defendants moved for summary judgment on the

remaining employment discrimination claims for Beene, Joseph and Alfonso

Trujillo. The district court granted the motion in an order entered in October

2006. Plaintiffs seek review of this decision. The district court’s order resolved

all remaining claims against all of the remaining parties and final judgment was

entered. Plaintiffs then filed a motion to alter or amend the judgment, which was

denied. Plaintiffs challenge this denial on appeal.

                                    Discussion

      W e review de novo the district court’s decisions denying plaintiffs’

motions for partial summary judgment, granting W ackenhut’s motion to dismiss

the RIC O claim, and granting W ackenhut’s motion for summary judgment.

Simms v. Okla. ex. rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir. 1999); Sutton v. Utah State Sch. for Deaf & Blind, 173

F.3d 1226, 1236 (10th Cir. 1999). W e review for abuse of discretion the district

court’s denial of plaintiffs’ motion to alter or amend the judgment. Brown v.

Presbyterian Healthcare Servs., 101 F.3d 1324, 1331 (10th Cir. 1996).

                                         -4-
      W e have reviewed the parties’ briefs, the district court’s orders, the record,

and the relevant legal authority. W e conclude that the district court correctly

resolved the bulk of the claims in this case and that no further discussion of those

claims is necessary. Accordingly, with respect to the district court’s decisions

denying plaintiffs’ motions for partial summary judgment, granting W ackenhut’s

motion to dismiss the RICO claim, granting W ackenhut’s motion for summary

judgment on the employment discrimination claims, and denying plaintiffs’

motion to alter or amend the judgment, we affirm the district court for

substantially the same reasons stated in its January 30, 2004 order, its October 18,

2006 order, and its November 8, 2006 order.

      W e are left with the district court’s dismissal of Gilbert Trujillo’s

employment discrimination claims. Normally, we would review such a claim de

novo. In this case, however, plaintiffs did not file a response to W ackenhut’s

motion to dismiss or object to the dismissal at any point during the district court

proceedings. Because of this, we review the district court’s decision for plain

error. See Royal M accabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1181

(10th Cir. 2005); Hidalgo v. Fagen, 206 F.3d 1013, 1020 (10th Cir. 2000); Glenn

v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994). In civil cases, “we

will reverse only if the error is one that seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Hidalgo, 206 F.3d at 1020 (quotation

omitted). “Plain error review presents an extraordinary, nearly insurmountable

                                           -5-
burden.” Royal M accabees, 393 F.3d at 1181 (quotation omitted). Plaintiffs must

show: “(1) an error, (2) that is plain or obvious under existing law, and (3) that

affects substantial rights.” Id.

      In W ackenhut’s motion to dismiss, it asserted that Gilbert Trujillo had

failed to allege in the Third Amended Complaint that he had exhausted his

administrative remedies. Plaintiffs argue on appeal that the record reveals that an

earlier filing in the case by one of the UTA defendants had an attachment that

included copies of M r. Trujillo’s charge of discrimination and right to sue letter

from the EEOC. Because of this, they contend that W ackenhut’s motion was filed

without merit and that the district court erroneously relied on W ackenhut’s

misrepresentation “when the record before the court should have informed it

otherw ise.” Aplt. Br. at 36.

      W hen reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the district

court’s role is to consider the well-pleaded allegations in the complaint, see, e.g.,

Benefield v. M cDowall, 241 F.3d 1267, 1270 (10th Cir. 2001), unless one of the

parties attaches additional materials to the motion or the response, see Prager v.

LaFaver, 180 F.3d 1185, 1188-1189 (10th Cir. 1999). Depending on the nature of

the materials, the court may consider them in resolving the motion to dismiss or

may convert the motion to dismiss into a motion for summary judgment. See id.;

Fed. R. Civ. P. 12(b). In this case, W ackenhut did not attach any additional

materials to its motion to dismiss; it simply argued that the allegations in the

                                          -6-
complaint were insufficient. Plaintiffs did not respond to the motion. The district

court concluded, based on the pleadings before it, that W ackenhut’s motion had

merit and should be granted. The proceedings in the district court continued for

over two years after Gilbert Trujillo’s dismissal. At no point during that time did

the plaintiffs raise this issue in the district court. Finally, plaintiffs filed a motion

to alter or amend the judgment, but did not raise this issue in that motion.

      On appeal, plaintiffs have not pointed to any allegations in the complaint

that would demonstrate that the district court erred in granting the motion to

dismiss. W hile it is true that the record submitted by the plaintiffs on appeal

shows that M r. Trujillo did exhaust his administrative remedies, this evidence was

submitted as part of another defendant’s pleading in an unrelated motion filed six

months earlier. W ithout a responsive pleading by the plaintiffs alerting the

district court to the existence of this evidence, the district court was under no

duty to comb through the prior filings as part of its consideration of the merits of

W ackenhut’s motion to dismiss. Plaintiffs have not shown that the district court

committed error and therefore they have failed to meet the first prong of the plain

error test. Accordingly, we affirm the district court’s decision granting

W ackenhut’s motion to dismiss Gilbert Trujillo’s employment discrimination

claims.

                                           -7-
The judgment of the district court is AFFIRMED.

                                          Entered for the Court

                                          Deanell Reece Tacha
                                          Chief Circuit Judge

                                -8-


797 F.2d 19
14 Soc.Sec.Rep.Ser. 301, Unempl.Ins.Rep. CCH  16,883Ernest S. AVERY, et al., Plaintiffs, Appellants,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 86-1080.
United States Court of Appeals,First Circuit.
Argued June 3, 1986.Decided July 16, 1986.

Judith C. Saltzman, Boston, Mass., with whom Sarah Anderson, Greater Boston Legal Services, and Linda Landry, Neighborhood Legal Services, Lynn, Mass., were on brief, for plaintiffs, appellants.
Susan G. Winkler, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.
COFFIN, Circuit Judge.

1
This appeal has been brought by six named plaintiffs, suffering from a variety of ailments, who allege that defendant Secretary of Health and Human Services failed to consider properly their subjective claims of pain when he evaluated their ability to engage in substantial gainful employment.  Consequently, they allege, their disability benefits under both Title II (Social Security Disability Insurance--SSDI) and Title XVI (Supplemental Security Income--SSI) of the Social Security Act, 42 U.S.C. Secs. 401-433, and Secs. 1381-1385, were wrongfully terminated.

2
Plaintiffs' first amended complaint was filed in July, 1983.  They sought certification of a class on several issues, including the propriety of the Secretary's evaluation of pain.  On April 12, 1984, the district court, after certifying a class on one of the issues, denied certification with respect to the pain issue, concluding that plaintiffs had not shown that Fed.R.Civ.P. 23(a)'s requirements of numerosity, commonality, typicality and adequacy of representation had been satisfied.  At the time of this ruling four of the named plaintiffs had been returned to payment status and were receiving disability benefits.  Subsequently, in September, 1984, the district court reversed the Secretary's termination of the two remaining plaintiffs' benefits and restored them to payment status.  In August, 1984, a seventh person, Frances Teague, who, unlike plaintiffs, had been denied initial benefits, sought to intervene.

3
In October, before the court ruled on the intervention request, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (the Act).  On November 7, 1984, the Secretary moved to dismiss the complaint, on the grounds that there were no remaining named plaintiffs with a pending claim on the pain issue and that the new Act established a clear and presently applicable standard of evaluating pain.  On December 4, 1984, plaintiffs filed their second amended complaint, alleging principally that the Secretary's Social Security Ruling 82-58 (SSR 82-58) violated the new Act.1   SSR 82-58, which we shall later examine in some detail, was characterized as requiring "in all cases so-called 'objective' documentation not merely of the cause of subjectively felt pain, but also of its intensity."    (Emphasis in original.)    The new complaint also alleged that the plaintiffs represented a class consisting of every Massachusetts disability benefits applicant with a physical or mental abnormality which causes pain whose claim was or will be denied or terminated "because the Secretary ... relied, at least in part, upon an absence or lack of clinical findings in determining that the pain is not disabling."    The prayers for relief were that SSR 82-58 be declared illegal and that a declaratory judgment proscribe the Secretary from conditioning disability benefits for "persons with medically documented abnormalities that cause pain ... [on] 'objective' or clinical documentation of the intensity of the pain."

4
The Act, after stating that a claimant's statement as to his pain "shall not alone be conclusive evidence of disability", requires first that

5
"there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain ... alleged...."  42 U.S.C. Sec. 423(d)(5).

6
It then provides that disability is established if such findings

7
"when considered with all evidence ... (including statements of the individual or his physician as to the intensity and persistence of such pain ... which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability."    Id.

8
The Act also calls for the appointment by the Secretary of a Commission on the Evaluation of Pain to conduct, in consultation with the National Academy of Sciences, a study concerning the evaluation of pain under Titles II and XVI.

9
On December 10, 1984, the district court issued a memorandum of decision dealing with a number of issues.  The specific decision with which we are here concerned was the court's ruling that plaintiffs' pain claims had been rendered moot.2   The court made essentially three points:  that the Act had established a standard for evaluating pain;  that it adopted all of the Secretary's regulations and policies, including, impliedly, 82-58;  and that in any event it would be premature to evaluate the policies before the Secretary had had an opportunity to measure them against the statutory standard.

10
We confess that we would be troubled if the consistency of 82-58 with the Act were to be dispositive of this appeal.  The Secretary draws comfort from a statement in the legislative history that Congress intended to adopt "the present regulatory policy on the use of evidence of pain in theevaluation of disability."    130 Cong.Record, H9829 (daily ed. Sept. 19, 1984).  Plaintiffs, however, construe "regulatory" as a reference to only regulations, not to rulings.  Our own view is that however expansive may have been the intent of Congress in embracing the Secretary's then existing policies, we see possible tension between the Act and 82-58.

11
The Act makes clear that, as a primary requirement, there must be a clinically determinable medical impairment that can reasonably be expected to produce the pain alleged.  It then goes on to provide that other evidence including statements of the claimant or his doctor, consistent with the medical findings, shall be part of the calculus.  If this second provision is to have any meaning, the statements of a claimant and his doctor must be additive to clinical or laboratory findings.3   This does not mean that any statements of subjective pain go into the weighing.  For example, the Act would not permit the acceptance, as possibly decisive evidence of disability, of complaints of violent headaches from a claimant whose medically determinable impairment indicating the probability of pain was confined to the lower extremities.  Nevertheless, so long as statements of a claimant or his doctor are not inconsistent with the objective findings, they could, if found credible by the adjudicator, permit a finding of disability where the medical findings alone would not.

12
SSR 82-58 gives us pause.  It seems to speak out of both sides of its mouth, the "objective only" side more than the side allowing consideration of certain "subjective" statements of pain.  To begin, its "Policy Statement", reproduced in the margin,4 ] starts off with the basic requirement of an objectively established medical condition that could reasonably be expected to produce the pain claimed.  Then it goes on to say that "symptoms are still not controlling" and that clinical and laboratory data must "reasonably account for the symptom."    The clear inference is that these data are in addition to the findings of an impairment that could be a likely source of pain.  If there were doubt on this score, the last three sentences quoted make it clear--or at least arguable--that any claim of intensity must be corroborated by, not merely be consistent with, clinical findings.

13
The discussion in SSR 82-58 on determining Residual Functional Capacity (RFC) points the other way.  It proceeds to recognize that "[s]ymptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective medical findings alone."    Consideration should, it continues, be given "alleged frequency and duration of [pain]" as well as precipitating factors, effect on daily activities, dosage and effects of medication, and recorded observations of others.  And denial decisions must state why subjective testimony of limitation of function because of pain is not supported by the evidence.

14
Finally, uncertainty is compounded by the two examples described, No. 1 "Effects of Pain Supported by the Evidence" and No. 2 "Effects of Pain Unsupported by the Evidence."    We have attempted our own comparative summary in the Appendix.  The only clear objective difference we see between the two examples is the presence of muscle spasm of paraspinal muscles in Example 1 and its absence in Example 2.  This is apparently the one factor--neither Example showing any sensory or motor loss, leg pain, or muscle wasting--that 82-58 deems sufficient to overcome the stronger factors in Example 2--the evidence of guarded movements, the treating physician's strong opinion that claimant could do no work, and the claimant's professed inability to do any household chores.  We confess as laymen that our reading of these examples indicates an extreme insistence on objective medical findings to corroborate subjective testimony of limitation of function because of pain.  We suspect that SSR 82-58 may encourage adjudicators to require a closer nexus between complaints of pain and observable medical findings than the Act now contemplates.

15
We are fortunately spared the task of making a definitive ruling on the compatibility between SSR 82-58 and the Act.  On August 1, 1985, the Secretary issued instructions for its Program Operations Manual System (POMS), DI T00401.570.  This is a seven page circular, its purpose being "to ensure that all adjudicators understand and consistently apply the existing policy (now codified in statute) for the evaluation of pain...."  Notwithstanding this disclaimer of policy change, it is obvious to us that the POMS instructions go considerably beyond 82-58 in recognizing subjective testimony of pain.

16
The instructions specifically contemplate a possible finding of disability in a case "where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings...."  In such cases a further exploration of other information is "consistent with recent court decisions, as well as with the statutory language [requiring consideration of statements of claimant or his physician consistent with medical findings]."  Specifically, when there is a claim of pain not supported by objective findings, the adjudicator is to "obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge."    Further, "it is essential to investigate all avenues presented that relate to subjective complaints...."

17
Finally, the examples set forth in POMS DI T00401.570F are not only much more general (leaving arguably more latitude to the adjudicator), but conclude with Example 2, a case where (1) the objective medical evidence does not substantiate the alleged degree of limitation due to pain, and (2) a further review of the medical evidence fails to show any objective findings typically associated with the limiting pain alleged.  In such a case the adjudicator cannot stop, but

18
"must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder.  Thus, before a complete evaluation of this individual's RFC can be made, a full description of the individual's prior work record, daily activities and any additional statements from the claimant, his or her treating physician or other third party relative to the alleged pain must be considered.  Only then is it possible to fully assess whether the pain is reasonably consistent with the objective medical findings and to determine RFC."

19
We have no doubt that these instructions correct whatever shortcomings existed in SSR 82-58 and conform faithfully to the Act.  But plaintiffs oppose our consideration of POMS.  They argue, first, that POMS is not binding on administrative law judges or the Appeals Council, citing legislative history of the Act.  H.R.Rep. No. 98-1039, 98th Cong., 2nd Sess. 35, reprinted in 1984 U.S.Code Cong. & Ad.News 3038, 3080, 3093.  Whatever may be the ordinary effect of POMS, these instructions have been presented to us unequivocally as the Secretary's policy and interpretation.5 We cannot believe that such a deliberate effort to "clarify" SSR 82-58 and its Example 2 would be intended to guide only the deciders of first instance.  We therefore construe POMS DI T00401.570 as being the latest word on departmental pain policy, committing the Secretary and superceding any inconsistent discussion and examples.6

20
Plaintiffs, in their reply brief, have included an affidavit from Kasper Goshgarian, the Deputy Commissioner of the Massachusetts Rehabilitation Commission, the official responsible for making disability determinations for SSI and SSDI applicants.  As of May 1, 1986, he avers, the application of SSR 82-58 "will continue to result in denial of benefits to persons with underlying complaints of pain if they are unable to provide 'objective' medical documentation or clinical tests showing the extent of the pain and the extent of the functional limitation caused by the pain."    He also states that the POMS instructions were not distributed to his agency until March or April, 1986, and, in any event, "have not removed this bottom line requirement of objective medical documentation of pain."

21
As stated above, we reach a different conclusion as to the impact of the POMS instructions in this case, and we cannot permit the statement of an official that is at odds with the stated policy of the Secretary to constitute a sufficient indication of vital signs in a controversy to preclude a ruling based on mootness.  At the same time, however, having found mootness based on the Secretary's assertion that the evaluation of pain will be made consistently with the POMS, we would not countenance any decision by the Secretary contrary to the liberalized modification of SSR 82-58 as contained in the POMS instructions.

22
Plaintiffs also urge that we consider the POMS instructions as new evidence not properly a part of the record on appeal.  But the instructions are not evidence relevant to the case at issue in the district court, but rather the event which removes that issue as a case or controversy.  They are like a "statute passed during the course of litigation [which] may make unnecessary a determination of the former controversy."    6A J. Moore, Moore's Federal Practice, p 57.13, at 57-127 (2d ed. 1985) (footnote omitted).  More precisely, the instructions constitute "an interpretation, not previously made, of the challenged [ruling]", which moots the controversy.   Free v. Landrieu, 666 F.2d 698, 703-704 (1st Cir.1981).   See also Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967) (petitioner tenant protested cancellation of tenancy without notice;  Court vacated and remanded case because of subsequent HUD directive to local housing authorities requiring notice, reasons, and opportunity to reply);  Rural America, Inc. v. Donovan, 597 F.Supp. 319, 321-22 (D.D.C.1984) (Department of Labor's assertion in brief and at hearing that organizations like plaintiff are entitled to due process hearing moots suit based on lack thereof);  Vann v. Housing Authority of Kansas City, Mo., 87 F.R.D. 642, 657-658 (W.D.Mo.1980) (city housing authority, with approval of HUD, adopted new tenant assignment policy, mooting the controversy).  We add that there has been no indication that the issue raised by plaintiffs meets the twofold test of being "capable of repetition, yet evading review."   Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).

23
We therefore hold that plaintiffs' challenge to SSR 82-58 is now moot, if it has not been so earlier.  We therefore remand with orders to vacate the judgment and dismiss the complaint.

24
No costs.

25
                                   APPENDIX
                        Comparison of Examples 1 and 2
                        in Social Security Ruling 82-58
  1. Effects of Pain Supported by the      2. Effects of Pain Unsupported by
  Evidence                                 the Evidence
  Disc excision at L4-5                    Disc excisions at L3-4, L4, L5-S1
  and back pain                            Spinal fusion of L3-S1
  Limitation of forward bending to 45      Limitation of forward bending to 50
  degrees;                                 degrees;
  extension to 5 degrees                   extension to 10 degrees
  No limp or difficulty in heel and toe    ** All movements guarded; no actual
  walking                                  difficulty in heel and toe walking
  * Difficulty in climbing onto            No "actual" difficulty in climbing
  examining table                          onto examining table
  Back pain if lying flat                  Back pain on straight-leg raising at
                                           60 degrees
  Straight-leg raising positive at 30      No radiation of pain into legs
  degrees on right, 70 degrees on left
  Depressed right achilles reflex          **  Absent left achilles reflex
  * Marked tenderness over right lumbar    Moderate tenderness to deep
  spine, with marked spasm of              palpation of lumbar paraspinous
  paraspinal muscles                       muscles, but no muscle spasm
  Increased back pain on forward           Leg circumferences equal
  flexion
  with splinting of lower spine            Solid fusion, no movement
  No motor or sensory loss                 No motor or sensory loss
  Wears brace                              Wears brace
  8-10 aspirin daily, occasional           **  15-20 aspirin daily, Darvon 4X
  codeine                                  daily
  Treating physician:                      Treating physician:
  Pain is significant in restrictions      ** Spinal fusion and back pain
                                           prevent all work indefinitely
  Patient to avoid heavy lifting
  Claimant:                                Claimant:
  Continued pain; can't walk over two      Constant pain; worse on walking or
  blocks; can't lift 2 year old            standing; unable ** to do any
  grandson; can do only light household    household chores.
  chores.
* Factors apparently supporting claimant in Example 1 more than claimant in
Example 2.
** Factors apparently supporting claimant in Example 2 more than claimant in
Example 1.
  Conclusion:                        Conclusion:
  Objective findings: limit          Because of spinal fusion, lifting limited
  lifting to 50 pounds, 25 pounds    to 50 pounds, 25 pounds frequently.  No
  frequently; no frequent            frequent bending.  In spite of complaints
  bending; clinical findings         and physician's opinion, "objective
  consistent with complaints.        medical evidence establishes the absence
  Therefore, can stand less than     of any findings (e.g., muscle spasm,
  6 hours a day.  Unlimited           sensory or motor loss, leg pain, or muscle
  sitting.  Can't do most medium      wasting, etc.)" associated with limiting
  or light jobs, because such        back pain.  Unlimited capacity to stand,
  requires more standing and         walk, sit.  Therefore, sedentary,
  bending than claimant can do.      substantially all light jobs, and medium
  Therefore, either sedentary        jobs if sitting and not frequent bending.
  jobs or light and  medium if
  done sitting.
  TRANSMITTAL NO. 19                 Audience: DDS: ADJ; ODO:
  SSA Pub. No. 68-0400401            DEC, DE, DS, RECONE; PSC:
  August 1, 1985                     DE; INTPSC: FDE, RECONE,
                                     FCR, ERE
                                     Originating Office: SJH-82

26
                       PROGRAM OPERATIONS MANUAL SYSTEM
                        Part 04 -- Disability Insurance
                Chapter 004 -- Case Development and Evaluation
       Subchapter 01 -- Developing and Evaluating Evidence of Disability
                                                No. of
  New Material                                  Pages
  Table of Contents
  (T00401.570) ..............................   1
  DI T00401.570.C.1 -- T00401.570.F (Cont.) .   5
-------------------------------------------------------------------------------
                                 Action Notes
  DI 00401.570 -- Cross-refer to DI T00401.570
  DI 00501.015C -- Cross-refer to DI T00401.570D
-------------------------------------------------------------------------------
                                  Background

27
Proper consideration of the effect of pain (and other symptoms) on an

28
individual's ability to work is an important part of the disability

29
evaluation process.  Because pain is subjective, the existence of pain and the

30
extent to which pain affects an individual's ability to work is difficult to

31
evaluate.

32
Under existing policy guidelines, as set forth in DI 00401.570ff. and in

33
Social Security Ruling 82-58, an individual's statements, or those of his or

34
her physician, regarding alleged pain must be considered by the adjudicator

35
along with all available evidence, medical and other, in evaluating

36
disability.

37
Section 3 of the Social Security Disability Benefits Reform Act of 1984

38
(Pub.L. 98-460) provides for inclusion in the statute of a statement on the

39
evaluation of pain or other symptoms which mirrors this basic policy.  At the

40
same time, the legislation calls for the establishment of a Commission on the

41
Evaluation of Pain to conduct a study, in consultation with the national

42
Academy of Sciences, concerning the evaluation of pain in determining

43
disability and to report their findings to the Secretary of Health and Human

44
Services.

45
                         Explanation of Manual Changes
  T00401.570 Evaluation of Pain and Other Symptoms
    This temporary transmittal is being issued to ensure that all adjudicators
  understand and consistently apply the existing policy (now codified in
  statute) for the evaluation of pain and to reemphasize the considerations
  which must be given to claimant's allegations and reports of pain and other
  symptoms when evaluating disability.
  U.S. Department of                          Effective Date: Upon Receipt
  Health and Human Services                   Selective Distribution C61
  Social Security Administration              Special PSC Distribution
  Office of Policy                            To adjust quantity requirements,
  SSA Pub. No. 68-0400401                     submit form SSA-1296, "Request
  I.C.N. 991515                               for Address or Distribution
                                                Change."
                               TABLE OF CONTENTS
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  T00401.570 Evaluation of Pain
                                                Section
  Evaluation of Pain and Other Symptoms ..... T00401.570
  T00401.570 Evaluation of Pain and Other Symptoms

A. General

46
Proper consideration of the effect of pain (and other symptoms) on an individual's ability to work is an important part of the disability evaluation process.  Because pain is subjective, the existence of pain and the extent to which pain affects the individual's functional ability to do basic work activities is difficult to evaluate.

47
The Social Security Disability Benefits Reform Act of 1984 (Pub.L. 98-460), enacted on October 9, 1984, included statutory language which, as explained by Congress, mirrors the basic policies for the evaluation of pain in disability cases.  The legislation also called for the establishment of a Commission on the Evaluation of Pain to conduct a study, in consultation with the National Academy of Sciences, concerning the evaluation of pain in determining disability.  The report of this Commission may lead to changes in our policy for evaluating pain.

48
B. Need to Establish a Medically Determinable Impairment

49
Under existing guidelines (see DI 00401.570B), pain cannot be found to have a significant effect on a disability determination or decision unless medical signs or findings show that a medically determinable physical or mental impairment is present that could reasonably be expected to produce the pain alleged.  This policy has now been codified by the legislative language in Pub.L. 98-460, section 3(a)(1), which states, in part, "there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged...."

50
When medical findings do not substantiate any physical impairment capable of producing the alleged pain (and a favorable determination cannot be made on the basis of the total record), the possibility of a mental impairment as the basis for the pain should be investigated.

51
C. Consideration of Pain in Establishing the Severity of a Medically Determinable Impairment

52
Once a medically determinable physical or mental impairment is documented, the effects of pain must be considered as you proceed through each step of the sequential evaluation.

53
1. Is the condition severe?

54
To be found disabled, an individual must have a medically determinable severe impairment(s).  To be considered severe the impairment, or combination of impairments, must significantly limit the individual's physical or mental ability to do basic work activities.  In determining whether an impairment(s) is severe, full consideration is given to all material evidence, including signs, symptoms (such as pain), and laboratory findings.  Where the degree of pain reported is consistent with a level that can reasonably be associated with the objective findings presented, the conclusion that the impairment is severe must be based on a determination that the total evidence, including the alleged pain, establishes that the individual's ability to do basic work activities is significantly limited.  However, where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings, the allegation of pain must be carefully explored further in terms of any additional limitation(s) imposed by the pain on the individual's functional ability beyond those limitations indicated by the objective findings before any conclusions about severity can be reached.  (See DI A00401.410 and DI 00401.570B.)

55
2. Are the findings about the individual's impairment identical to those in the listing?

56
Disability may be established on a medical basis alone if the criteria of an impairment cited in the Listing of Impairments are met or equalled.  Some listed impairments include symptoms among the requisite criteria.  For example, Listing 1.04 requires a history of joint pain and stiffness.  When a symptom, such as pain, appears as a criterion (as in Listing 1.04), it is ordinarily essential only that the symptom be present in combination with the remaining criteria.  Unless specifically indicated (as in Listing 1.04A, which requires that abduction of both arms at the shoulders, including scapular motion, be restricted to less than 90 degrees), quantification or evaluation of the intensity or of the functionally limiting effects of that symptom is not required to determine whether the documented findings meet the requisite criteria.  (See DI 00401.570C.)

57
3. Are the findings about the individual's impairment(s) equivalent to those for an impairment(s) in the listing?

58
In considering whether documented findings and symptoms are of equivalent severity to the requisite findings and symptoms of a listed impairment, we look to see if the set of symptoms, signs, and findings present are of equal or greater significance than those in the listed criteria.  However, we cannot substitute an alleged or reported increase in the intensity of a symptom, no matter how severe, for a missing or deficient sign or finding to elevate impairment severity to equivalency to the listed impairment.  For example, a history of severe, persistent joint pain cannot be substituted for the required x ray evidence of either joint space narrowing with osteophytosis or bony destruction (with erosions or cysts) in Listing 1.04 to draw a conclusion of "equal."

59
D. Considerations of the Intensity and Persistence of Pain in Determining Functional Capacity

60
If the listing is not met or equalled, a residual functional capacity (RFC) assessment is necessary to determine the effects of the impairment, including any additional limitations imposed by pain, on the claimant's capacity to perform former work or other work.  Medical history and objective medical findings, such as evidence of muscle atrophy, reduced joint motion, muscle spasm, sensory and motor disruption, etc., are usually reliable indicators from which to draw reasonable conclusions about the intensity and persistence of pain and the effect such pain may have on the individual's work capacity.  Whenever available, this type of objective medical evidence must be obtained and, as expressed in Pub.L. 98-460, "must be considered in reaching a conclusion as to whether the individual is under a disability."

61
There are situations in which an individual's alleged on reported symptoms, such as pain, suggest the possibility of a greater restriction of the individual's ability to function than can be demonstrated by objective medical findings alone (see DI 00401.570D).  In such cases, reasonable conclusions as to any limitations on the individual's ability to do basic work activities can be derived from the consideration of other information in conjunction with medical findings.  This is consistent with recent court decisions, as well as with the statutory language which requires that statements of the claimant or his/her physician as to the intensity and persistence of pain or other symptoms "which may reasonably be accepted as consistent with the medical signs and findings" are to be included in the evidence to be considered in making a disability determination.

62
When the claimant indicates that pain is a significant factor of his/her alleged inability to work, and the allegation is not supported by objective findings in file, the adjudicator shall obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge.

63
In developing evidence of pain or other symptoms, it is essential to investigate all avenues presented that relate to subjective complaints, including the claimant's prior work record and information and observations by treating and examining physicians and third parties, regarding such matters as:1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;

64
2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);

65
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;

66
4. Treatment, other than medication, for relief of pain;

5. Functional restrictions;  and

67
6. The claimant's daily activities.

68
E. Importance of Considering Allegations of Pain and Explaining Conclusions Reached

69
In evaluating a claimant's subjective complaints of pain, the adjudicator must give full consideration to all of the available evidence, medical and other, that reflects on the impairment and any attendant limitations of function.

70
In the SSA-4734-F4 RFC assessment, the medical consultant is to describe the relationship between the medically determinable impairment and his/her conclusions of RFC which have been derived from the evidence, including a discussion of why reported daily activity restrictions are or are not reasonably consistent with the medical evidence.  (See DI 00501.015C.)

71
In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual's subjective complaints solely on the basis of such personal observations.  Rather, in all cases in which pain is alleged, the determination rationale is to contain a thorough discussion and analysis of the objective medical and nonmedical evidence, including the individual's subjective complaints and the adjudicator's personal observations.  (See DI 00501.125.)    The rationale is then to provide a resolution of any inconsistencies in the evidence as a whole and set forth a logical determination of the individual's capacity to work.

F. Consideration of Pain in Determining RFC

72
POMS DI 00401.570D contains two examples of situations in which allegations of pain are evaluated.

73
Example 1 presents a picture of an individual with a severe medically determinable impairment who alleges pain with attendant limitations of function as reflected in his stated restrictions in daily activities.  In this example, the clinical findings are consistent with both the complaints of pain and with the individual's stated limitations.  Thus, the adjudicator, in reviewing all of the available evidence, including the statements of the claimant and his treating physician, is free to conclude that the individual's allegations of pain are reasonably consistent with the medical signs and findings and would result in the stated restrictions in the individual's RFC.  The final decision in the case would then be based on the evaluation of the individual's ability to work in consideration of his RFC, and his age, education, and work experience.

74
In example 2, a different situation is presented.  In this example, the objective medical evidence supports a finding that the claimant has a severe physical impairment but does not substantiate the alleged degree of limitation due to pain.  As is proper, consideration has been given to the possibility of a mental impairment, but the treating physician states there is no psychiatric condition and the evidence supports this statement.  A further review of the medical evidence fails to establish the presence of any objective findings, (e.g., muscle spasm, sensory or motor loss, leg pain, or muscle wasting, etc.), typically associated with the type of functionally limiting back pain alleged by the claimant.  Thus, the evidence does not support a reasonable conclusion that additional pain-related physical or functional restrictions exist beyond those imposed by the effects of the documented spinal fusion.

75
However, the adjudicator, as explained in DI 00401.570D, must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder.  Thus, before a complete evaluation of this individual's RFC can be made, a full description of the individual's prior work record, daily activities and any additional statements from the claimant, his or her treating physician or other third party relative to the alleged pain must be considered.  Only then is it possible to fully assess whether the pain is reasonably consistent with the objective medical findings and to determine RFC.

1
 The resolution of allegations that 82-58 also violated case law from this circuit and the Secretary's own regulations would seem to be completely swallowed up by a resolution of the statutory violation issue

2
 This ruling appears to be the linchpin for the court's simultaneous denials of Teague's motion to intervene and of plaintiffs' motion to amend their first amended complaint to add a class action

3
 Other courts have similarly read the Act.   Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986);  Foster v. Heckler, 780 F.2d 1125, 1128-29 (4th Cir.1986);  Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir.1985);  Green v. Schweiker, 749 F.2d 1066, 1068-1070 (3d Cir.1984).   See also Herbert v. Heckler, 783 F.2d 128, 130-131 (8th Cir.1986) (interpreting requirements of Act, regulations, and SSR 82-58 in light of settlement agreement set forth in Polaski v. Heckler, 739 F.2d 1320, 1321-2 (8th Cir.1984) )

4
 "Policy Statement:  Symptoms will not have a significant effect on a disability determination or decision unless medical signs or findings show that a medical condition is present that could reasonably be expected to produce the symptoms which are alleged or reported.  However, once such a medical condition (e.g., disc disease) is objectively established, the symptoms are still not controlling for purposes of evaluating disability.  Clinical and laboratory data and a well documented medical history must establish findings which may reasonably account for the symptom in a particular impairment.  Objective clinical findings which can be used to draw reasonable conclusions about the validity of the intensity and persistence of the symptom and about its effect on the individual's work capacity must be present.  For example, in cases of back pain associated with disc disease, typical associated findings are muscle spasm, sensory loss, motor loss, and atrophy.  There must be an objective basis to support the overall evaluation of impairment severity.  It is not sufficient to merely establish a diagnosis or a source for the symptom."

5
 His brief on appeal contains the following passages:  "In the interim period [before the advent of new policies pursuant to the Pain Commission's report and actions of Congress], the Act and the Secretary's regulations, as explained in SSR 82-58 and as further articulated in the new POMS instruction is the national policy on pain."    (p. 20) (emphasis supplied).  "In the new POMS instructions, the Secretary also clarifies Example 2 of SSR 82-58.  In particular, the Secretary notes that the adjudicator must be aware that 'symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder.' "    (p. 21.)
Moreover, his counsel made the following oral argument to us:
"In August of 1985 after the district court ruled on the motion for reconsideration, the POMS instructions and circular were published.... and the Secretary shifted somewhat the degree of weight given.... to the subjective complaint of pain....
....
"I would argue that the plaintiff's claims are moot because the Secretary does what they've asked ... them [sic] to do, and in particular I would direct your attention to the plaintiffs' second amended complaint where the relief they asked for in this case is a declaratory judgment that the defendants [sic] will not require objective documentation of the intensity of pain as a necessary precondition of benefits.  If you look at the POMS instructions and SSR 82-58 in their entirety, they do not require such objective documentation regarding the intensity as a necessary precondition.  The subjective complaints of pain can be believed.  But the adjudicator is directed to take into account all the evidence...."

6
 Although ordinarily we would find no need to publish an administrative publication as an addendum to our decision, we do so in this case because it has been brought to our attention that POMS directives are not always available to the public and because the Secretary relies so substantially in this case on the content of POMS DI T00401.570


924 F.Supp. 653 (1996)
Kenneth RIDGEWAY, Plaintiff,
v.
The CITY OF WOOLWICH TWP. POLICE DEPT., The City of Woolwich, New Jersey, and Paul Ladd, Defendants.
Civ. A. No. 94-5557 (JEI).
United States District Court, D. New Jersey.
April 24, 1996.
*654 Kenneth Ridgeway, Camden, NJ, Plaintiff Pro Se.
Frank N. Yurasko, Somerville, NJ, for Defendants.

*655 OPINION
IRENAS, District Judge:
Plaintiff was shot in the back by Officer Paul Ladd while fleeing on foot after an extensive automobile pursuit. At the time of the shooting, Officer Ladd reasonably believed that the plaintiff had been involved in a robbery using a chemical spray, that he had fled the scene of the crime in a car, and that he had led two police cars on a high speed chase. Officer Ladd also was aware that plaintiff rammed his car into the police vehicles three times, and that after stopping his vehicle in a parking lot, plaintiff bent over in his car as if to pick something up and then fled the scene on foot. Plaintiff's back was to the officer at the time of the shooting, and it is disputed whether Officer Ladd issued any warning to plaintiff of his intention to shoot. Given these facts, which shaped Officer Ladd's perception of the incident, the Court finds that it was not feasible for Ladd to issue a warning before firing at Ridgeway, and that as a matter of law, Officer Ladd's use of deadly force was reasonable and not excessive. The Court will grant defendants' motion for summary judgment on plaintiff's claim against Ladd and on his claim against the city and police department for inadequate training.

I. PROCEDURAL HISTORY
On November 15, 1994, plaintiff filed a complaint in federal court pursuant to 42 U.S.C. § 1983 alleging violation of his constitutional rights at the time of his apprehension and arrest due to the defendant officer's use of excessive and deadly force and the police department's failure to properly train its officers in the use of deadly force. Plaintiff seeks compensatory and punitive damages in the sum of two million dollars for mental and physical injuries, as well as exemplary and injunctive relief. Defendants filed a motion for summary judgment on February 27, 1996, arguing that the actions of Officer Ladd in arresting plaintiff do not constitute excessive force, and that plaintiff has not set forth evidence sufficient to establish unconstitutional policies on the part of the police department. Plaintiff responded to the motion on March 13, 1996.

II. STATEMENT OF FACTS[1]
On December 29, 1992, Kenneth Ridgeway was driving in New Jersey with a friend, James Hall, on his way back to Chester, Pennsylvania. The two men stopped in a Thriftway parking lot. Plaintiff claims that while he moved to the passenger's seat of the car and slept for approximately twenty minutes, his friend went into the store and returned with a woman yelling at him because he had stolen her purse. The defendants claim that plaintiff himself robbed a woman in the parking lot by spraying a chemical substance in her face, grabbing her purse, and then dragging her 50 feet across the parking lot before the strap broke. According to plaintiff, Hall got into the driver's seat upon his return, drove away quickly, and nearly caused an accident before running the car into some bushes at the side of the road, at which time Hall jumped out of the car and ran away. Plaintiff then moved to the driver's side and fled the scene at high speed. Information about the incident was broadcast on the police radio.
Approximately five minutes later, plaintiff noticed a marked police car preparing to pursue him. Logan Township Ptl. George McErlain, who had heard the radio broadcast, was driving the police car. Ridgeway took the first exit from the road. He alleges that he had difficulty controlling his car due to wet and slippery road conditions. Plaintiff did a u-turn and headed back up the highway ramp. He then collided head-on with the police car which had been pursuing him, disabling the police unit. Plaintiff continued *656 to flee at a high rate of speed. McErlain broadcast these facts on the police radio.
Plaintiff states that he drove off toward Chester instead of stopping because he was scared. After about ten minutes, he saw that another police car was following him. Woolwich Tp. P.O. Paul Ladd was driving this police car. He had heard the police broadcast about Ridgeway and he began pursuing the plaintiff with overhead red lights and siren activated. On Pedrickton Road, near the residence of Dale Hurff, and in his sight, plaintiff made a u-turn and hit Ladd's police car. Hurff Statement, Defendants' Exhibit C, at 3-4. According to Hurff, Ridgeway deliberately struck the police car in a head-on collision. Id. at 4. Steam and smoke were coming from Ladd's car after the collision. Id. at 5. Ladd continued to pursue Ridgeway, followed by Hurff in his pick-up truck. Hurff had decided on his own initiative to assist the police.
Ridgeway proceeded through an intersection without stopping at the stop sign. Eventually he turned into a dead-end parking lot. In the lot, plaintiff did another u-turn and again directly aimed his car at Ladd's vehicle. Ladd tried to back up his car to avoid the collision. Plaintiff hit Ladd, causing plaintiff's car to be "more or less flipped sideways into the parking lot." Id. at 7. Hurff then pulled his truck between the police car and Ridgeway's car and trapped plaintiff in the parking lot.
Hurff and Ladd state that they saw Ridgeway lean over in his car toward the floor of the passenger's side before getting out, in a manner consistent with an attempt to locate a weapon. Ladd states that he drew his service weapon and ordered plaintiff out of his car. Hurff states that plaintiff appeared to be trying to point something at the officer, and the officer told plaintiff to halt or he would shoot. Plaintiff claims that Officer Ladd did not give him any warning that he was about to shoot. Plaintiff exited his vehicle and began to run away from Officer Ladd. The time of this incident was approximately 12:00 p.m. to 12:30 p.m.
Ladd fired 10-20 rounds at Ridgeway as he fled. The first bullet hit plaintiff in the back and he began to scream. Ladd continued to fire and plaintiff states that this caused him to keep running to avoid the shots. Hurff states that he heard plaintiff's hollering loudly and clearly as he ran away. Plaintiff jumped over a fence and continued running. He was later found by other police officers unconscious in a garbage dumpster. Plaintiff was arrested and taken to Cooper Medical Center for treatment. After 6 hours of surgery and a 6-day stay in the hospital, plaintiff was taken into custody. A crack pipe was later found in plaintiff's car, leading defendants to believe that plaintiff was under the influence of crack at the time of the incident.
Plaintiff was charged by the Logan Township Police Department with two counts of robbery, possession of a weapon for unlawful purposes, three counts of aggravated assault, two counts of eluding police, and two counts of criminal mischief. Plaintiff pleaded guilty to complicity to commit robbery and eluding police.
Ridgeway began receiving therapy for his injuries three months after the incident, and was still receiving therapy at the time he filed his complaint. A bullet from the incident is still lodged in his back. Plaintiff states that he has limited use of his left arm and shoulder, is in constant pain, and has been diagnosed with acute arthritis. Plaintiff's Response, Exhibit A.

III. DISCUSSION

A. Standard of Review on Summary Judgment
Under Fed.R.Civ.P. Rule 56(c), "summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 *657 L.Ed.2d 202 (1986). There is no issue for trial unless sufficient evidence favoring the nonmoving party exists such that a reasonable jury could return a verdict for that party. Id.
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring).

B. Excessive Force
Ridgeway asserts that Officer Ladd violated his constitutional rights by using excessive force in effectuating his arrest. When a police officer uses more force than necessary with an intention of depriving another of his constitutional rights, the act constitutes a violation of federal law pursuant to 42 U.S.C. § 1983. See United States v. Delerme, 457 F.2d 156, 161 (3d Cir.1972). The use of deadly force to effectuate an arrest implicates the Fourth Amendment protection against unreasonable seizures. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Whether an officer's use of force is "excessive" must be measured under an objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Reasonableness is judged "from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight...." Id. at 396, 109 S.Ct. at 1872. A court should consider only those facts and circumstances known to the officer at the time of his or her action. Rodriguez v. City of Passaic, 730 F.Supp. 1314, 1322 (D.N.J.), aff'd 914 F.2d 244 (3d Cir.1990). The Court must balance the degree of intrusion on a citizen's Fourth Amendment rights against the government's interest in effectuating the detention. Tennessee v. Garner, 471 U.S. at 7-8, 105 S.Ct. at 1699. Factors to consider in evaluating an officer's use of force include the severity of the crime at issue, whether the suspect poses an immediate threat to the officer's safety or that of others, and whether the suspect is actively resisting arrest or trying to evade arrest by flight. Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir.1995) (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1871). Additionally, the Supreme Court has noted that decisions about deadly force "must embody allowance for the fact that police officers are often forced to make split second judgments  in circumstances that are tense, uncertain and rapidly evolving." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872.
According to Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), a police officer may not use deadly force to effectuate the arrest of all fleeing felons. The Court found that "where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Generally, the use of deadly force is reasonable under the following circumstances:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if ... there is probable cause to believe that the suspect committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used to prevent escape, and if, where feasible, some warning has been given.
Garner, 471 U.S. at 11-12, 105 S.Ct. at 1701.

1. Was the Use of Deadly Force Reasonable?
In applying the standards set forth by the Supreme Court, the Court must first consider the reasonableness of Officer Ladd's determination that deadly force was necessary to apprehend Ridgeway. In response to one *658 of plaintiff's interrogatories, Officer Ladd stated:
Plaintiff's participation in a robbery by force and violence, and his use of an automobile to assault two police officers, including myself (twice), while in marked police cars, his extended resistance to arrest, his appearing to have reached for an unidentified object that might have been a weapon, and his flight on foot despite my verbal orders and warning and initial shot, gave me reason to believe that the plaintiff was an escaping violent felon who posed a grave danger to the public.
Answer to Interrogatories, Defendants' Exhibit D, ¶ 11. An elaboration of the factors raised by Ladd will demonstrate whether his actions were reasonable.
Officer Ladd first learned about Ridgeway over the police radio when he heard that Ridgeway was a suspect in a robbery carried out with a chemical spray, that he had fled the scene of the crime at high speed in a car, and that he had eluded one pursuing police officer by ramming the police vehicle with his car. These facts could have reasonably led Officer Ladd to conclude that Ridgeway was a violent felon who was willing to use deadly force against others. This conclusion would have been reinforced by Ladd's own pursuit of the plaintiff, which included two head-on rammings by Ridgeway.
Officer Ladd also knew that the plaintiff had shown no intention of voluntarily submitting to police authority. Officer McErlain had pursued Ridgeway in a marked police vehicle with sirens flashing, a clear indication that the police wanted Ridgeway to pull to the side of the road, and he responded by ramming the police car and fleeing. He repeated this response to an assertion of police authority when Officer Ladd signaled that Ridgeway should pull over. Ladd could reasonably conclude that Ridgeway was not likely to submit to police authority, and that he would take evasive measures to avoid capture.
Both Hurff and Ladd state that after Ridgeway was trapped in the parking lot, he leaned to the side in his car and reached down, in a manner consistent with picking up a weapon. Given that Ridgeway openly had exhibited a total willingness to commit dangerous acts against police officers, and given his apparent disregard for innocent bystanders  as demonstrated in the suspected robbery and as displayed by the high speeds he drove and his failure to obey a traffic signal  Officer Ladd could have reasonably believed that Ridgeway would be willing to use a weapon to cause harm to Officer Ladd himself, to Dale Hurff who was nearby, or to other innocent bystanders he might encounter as he fled.
Given the circumstances as viewed by Officer Ladd at the time of the shooting, his belief in the necessity of deadly force to apprehend Ridgeway was reasonable. Ridgeway was suspected of a robbery that included brutal force against a woman. His actions posed an immediate threat to Officer Ladd, Dale Hurff, and possibly to other innocents. Finally, Ridgeway was actively resisting arrest and trying to evade arrest by flight. See Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir.1995) (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1871); Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir.1988) (officer's belief that deadly force was necessary was reasonable where suspect (1) had committed felony involving threat of deadly force, (2) was armed with deadly weapon, and (3) was likely to pose danger of serious harm to others if not immediately apprehended). In sum, Ridgeway had demonstrated to Officer Ladd that he was the type of person with a dangerous disposition who would cause fatal injury to others, and it was objectively reasonable for Ladd to make a split-second determination in the heat of the moment that deadly force was necessary to stop Ridgeway.

2. Necessity of Deadly Force to Prevent Escape
Next the Court must consider whether the use of deadly force was necessary to prevent escape. The police made a prolonged effort to apprehend Ridgeway. Two police officers pursued him in marked police vehicle with lights and sirens activated. Plaintiff did not respond to these commands to pull over and continued his high speed *659 escape. When Ridgeway's car was blocked into the parking lot, he jumped out of his car and fled on foot. Given plaintiff's failure to ever respond to the signaling of police to pull over, and his immediate response of continuing escape on foot, the Court finds that it was necessary to use deadly force to prevent Ridgeway's escape.

3. Feasibility of Warning
Finally, Garner requires the officer using deadly force to give a warning "where feasible." Ladd and Hurff contend that a warning was issued to plaintiff to halt or the officer would shoot. Ridgeway denies that a warning was issued. Given this genuine factual dispute, the Court will consider whether the issuance of a warning was even feasible. The Court notes that the existence of a warning is only relevant in cases where the use of deadly force is justified.
The Supreme Court is yet to clarify its assertion in Garner that, prior to the use of deadly force, a warning should be given "where feasible." In interpreting the meaning of "feasible" in the context of Garner, one court has suggested that it means the warning is "capable of being performed without prolonging or compounding the threat presented by a suspect." Maravilla v. United States, 867 F.Supp. 1363, 1378 (N.D.Ind. 1994), aff'd by 60 F.3d 1230 (7th Cir.1995). In Liebenstein v. Crowe, 826 F.Supp. 1174, 1186 (E.D.Wis.1992), police officers were aware that numerous criminal complaints had been filed against the suspect in the past, he was known to be violent when drunk and he was drunk at the time of the incident, he had made threats against the police in the past, and he was a good shot. Noting that the use of "feasible" implies that officers need to make a judgment call when using deadly force, the court concluded that "where it was not clear whether a warning would result in further violence and perhaps bloodshed, it is not apparent that a warning would have been feasible." Liebenstein, 826 F.Supp. at 1186. Finally, the Eighth Circuit has concluded that where a suspect was given several warnings during a pursuit, the lack of a warning immediately preceding the shooting did not render the use of deadly force constitutionally unreasonable given the "urgent circumstances" facing the officer. Krueger v. Fuhr, 991 F.2d 435, 440 (8th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993).
There are essentially two inquiries to be made by a court in evaluating when it is both feasible and appropriate for a police officer to issue a warning prior to using deadly force to apprehend a fleeing suspect. An officer first should consider whether the suspect is aware that the police are trying to apprehend him, such that he has knowledge that he should stop. For example, if a suspect has just fled from a home at night after burglarizing it, and no police siren or verbal warning would indicate that a police officer is pursuing the person, it would be appropriate for a police officer to issue a warning to give the suspect an opportunity to stop and surrender to police custody prior to the officer's use of deadly force. On the other hand, if police cars with lights and sirens activated are pursuing a suspect, who deliberately rams those police cars, an officer could reasonably conclude that the suspect has knowledge that the police want him to stop and that continued flight might bring about the use of deadly force by the police to capture him.
A court's second inquiry should be what the police might anticipate the suspect's reaction will be if a warning is issued about the impending use of deadly force. If an officer reasonably believes, based on the suspect's prior conduct, that such a warning would not cause the suspect to surrender, but rather would provoke the suspect to engage in violent and life-threatening behavior, or to increase his or her efforts to flee, then a warning is not feasible. In the cool aftermath, it is deceptively easy to say: "What harm can come from giving a warning?" In the split-second reality of a deadly police chase, that warning (whether verbal or a shot in the air) might permit the suspect to turn and fire a weapon or otherwise facilitate his escape, putting at risk innocent police and civilians who he encounters in the path of his flight.
Application of these factors to the case at hand establishes that it was not feasible *660 for Officer Ladd to issue a specific warning to Ridgeway prior to the use of deadly force. First of all, it was clear to Officer Ladd that Ridgeway knew he was being pursued by police. Two police cars with sirens and lights activated had pursued Ridgeway in a manner that made it crystal clear that the police wanted him to stop. In addition, Officer Ladd could have reasonably concluded that Ridgeway knew deadly force might be used against him. He had deliberately eluded two police cars, and used deadly force (in the form of three direct rammings) against two police officers during the chase. His actions were such that Officer Ladd would believe Ridgeway was aware of the type of force that would be employed to stop him.
Secondly, Officer Ladd had been given no indication by Ridgeway that he would submit to police authority upon the issuance of a verbal warning. To the contrary, as the police pursuit continued, Ridgeway continued his escape attempts and demonstrated a willingness to inflict harm and break the law. Ladd reasonably believed that Ridgeway possessed a weapon, and that he would use such a weapon. Based on this information, Ladd could have reasonably concluded that the issuance of a warning would cause the plaintiff to turn and use his weapon in a manner that would threaten the officer or others.
The Court finds that it was not feasible for Officer Ladd to issue a warning prior to his use of deadly force. Thus, while there may be a genuine dispute as to whether a warning was issued by Officer Ladd, it is not a dispute that could lead a jury to find in the favor of the nonmoving party here. The Court will therefore grant defendants' motion for summary judgment on plaintiff's claim against Officer Ladd for use of excessive force.[2]

C. Claim Against Woolwich Township and the Woolwich Police Department  Failure to Train as a Constitutional Violation
In light of the Court's determination that Officer Ladd acted reasonably under the circumstances when he shot Ridgeway on December 29, 1992, it need not address plaintiff's failure to train claim. The Court will grant summary judgment to defendants on the claim against the city and police department.

IV. CONCLUSION
The Court finds that under the circumstances as known to Officer Ladd at the time he shot Ridgeway, the officer acted in a manner that was objectively reasonable. Furthermore, the Court finds that it was not feasible for Officer Ladd to issue a warning about his use of deadly force immediately prior to shooting the plaintiff. As there is no dispute over a genuine issue of material fact, the resolution of which would result in a finding for the plaintiff, defendants' motion for summary judgment on the claim against Officer Ladd will be granted. Summary judgment also will be granted on plaintiff's claim of inadequate training by the city and police department.
NOTES
[1]  In accordance with Rule 12G, the defendants submitted a Statement of Uncontested Facts. Plaintiff has not objected to this statement of facts and the Court will accept them as uncontested. Plaintiff did not submit an affidavit in opposition to the motion for summary judgment. As he did attach a signed declaration to his brief in opposition to the motion, the Court will adopt the facts set out therein as plaintiff's statement of facts. The Court notes, however, that the facts asserted by plaintiff in his Complaint cannot be used by him to defeat the summary judgment motion. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
[2]  It has been established that "government officials performing discretionary functions generally are shielded from liability for civil damages [in a section 1983 action] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Defendants did not move for summary judgment on the basis of qualified immunity and the Court will therefore not make a judgment on this basis, but it does note that it appears that defendants may have a strong basis for summary judgment due to the principle of qualified immunity. While Garner, 471 U.S. 1, 105 S.Ct. 1694, clearly established that a law enforcement officer may not use force against a nondangerous suspect causing no threat, the law remains murky as to when the issuance of a warning is feasible when preparing to use deadly force against a dangerous suspect, and what type of warning should be given. Taking the facts here in the light most favorable to plaintiff  that no warning was issued  it seems Officer Ladd may have had a qualified immunity from suit due to the lack of clarity in the law as to when a warning is required before the use of deadly force.


572 So.2d 656 (1990)
Cynthia Breaux, Wife of/and Jerry J. BREAUX
v.
Robert KLEIN, XYZ Insurance Company, Patrick G. Gabrayel, and ABC Insurance Company.
No. 90-CA-458.
Court of Appeal of Louisiana, Fifth Circuit.
December 12, 1990.
Writ Denied January 31, 1991.
*657 Henry Leon Sarpy, John A. Kopfinger, Jr., Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant-appellant Louisiana Ins. Guar. Ass'n.
Robert A. Caplan, Lewis & Caplan, New Orleans, for plaintiffs-appellees Cynthia Breaux, wife of/and Jerry J. Breaux.
W. Monroe Stephenson, New Orleans, for defendant Robert Klein.
Before KLIEBERT, BOWES and DUFRESNE, JJ.
KLIEBERT, Judge.
The plaintiffs originally filed a suit for damages arising out of an automobile accident against the alleged tortfeasors. Subsequently, upon belief that "one or more of the defendants in this matter is either uninsured or underinsured," plaintiffs amended their petition to name as an additional defendant their uninsured motorist carrier, Champion Insurance Company. Notwithstanding a policy coverage defense, on May 17, 1989, after trial, judgment was rendered in favor of plaintiffs, casting Champion, under its uninsured motorist policy provision, for $10,000.00 plus interest and costs. Additionally, under a finding Champion had been arbitrary and capricious in denying plaintiffs' claims, the court, pursuant to the provisions of LSA-R.S. 22:658 B.(1), assessed a penalty of 10% and attorney fees of $2,000.00 against Champion.
On June 5, 1989 Champion was declared insolvent and all actions involving Champion were stayed by the bankruptcy court from June 5, 1989 through October 3, 1989. Thereafter, on or about December 29, 1989, plaintiffs filed a supplemental and amending petition naming Louisiana Insurance Guaranty Association (LIGA) as party defendant after the fact. When settlement negotiations[1] were unfruitful, plaintiffs moved for summary judgment contending that LIGA was obligated to pay the full amount for which Champion was cast by the May 17, 1989 judgment. The trial court rendered judgment on April 5, 1990 in favor of plaintiffs, casting LIGA for the same amount Champion was cast in the May 17, 1989 judgment, which included the statutory penalties and attorney fees imposed under LSA-R.S. 22:658 B.(1).
LIGA appealed, raising two issues: (1) whether the May 17, 1989 judgment against Champion can be enforced against LIGA in the manner effected here, and (2) under any condition is LIGA responsible for the statutory penalties and attorney fees assessed against Champion under LSA-R.S. 22:658. For the reasons hereinafter stated we hold Champion acquiesced in and hence is bound by the procedure followed, but is not liable for the statutory penalties and attorney fees.
With respect to the first issue, LIGA, citing Cohen v. Grace, 219 La. 91, 52 So.2d 297 (1951), contends the trial judge erred in granting the motion for summary judgment because LIGA was not a party to the suit when the judgment against Champion was rendered. However, we note that LIGA became a party to the suit by a supplemental and amending petition on December 29, 1989, which it answered. Thus, it had an opportunity to defend and respond and, by answering, acquiesced in the procedure. Moreover, since it paid all but the statutory penalties and attorney fees, it is apparent the intended substantive issue on the appeal is LIGA's responsibility for the statutory penalty and *658 attorney fees assessed against Champion; therefore, we focus our attention on that issue.
After notification of loss and awareness of insolvency, R.S. 22:1384(1), LIGA's obligation to individual insureds is enunciated under R.S. 22:1382(1)(a), (b), which defines the duties of LIGA in part as follows:
"(1) The association shall:
"(a) Be obliged to the extent of the covered claims existing prior to the determination of the insurer's insolvency, or arising after such determination but prior to the first to occur of the following events:
(i) expiration of thirty days after the date of such determination of insolvency,
(ii) expiration of the policy, or
(iii) replacement or cancellation of the policy at the instance of the insured if he does so within thirty days of the determination, but such obligation shall include only that amount of each covered claim, except return premiums, which is in excess of one hundred dollars and is less than one hundred fifty thousand dollars, per claim, subject to a maximum limit of three hundred thousand dollars per accident or occurrence, nor shall a claim for the portion of unearned premiums in excess of ten thousand dollars be allowed.... In no event shall the association be obligated to a policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy from which the claim arises...."
"(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent."
Thus, the only statutorily limiting language relating to payment of covered claims is the $100.00 deductible, the obligation of the insurer, a $150,000.00 maximum per claim, and a $300,000.00 maximum per occurrence, all as provided for by the above quoted provisions.
"Covered claims" refers to claims covered by the policy of an insolvent insurer. R.S. 22:1379(3).[2] The right of an insured to recompense for a covered insurance claim arises under the Insurance Guaranty Fund, established by Act 1970, No. 81, which enacted LSA-R.S. 22:1375-1394. These statutes are to be liberally construed to affect the stated purpose. R.S. 22:1378.
LIGA contends the claim for penalties and attorney fees which it was ordered to pay is not a "covered claim" within the language of the R.S. 22:1382(1)(a). Instead, it contends the claim is a separate and distinct cause of action created by separate legislation in the Insurance Code, namely, R.S. 22:658. For jurisprudential support LIGA cites Cantrelle Fence and Supply Co., Inc. v. Allstate Insurance Company, 515 So.2d 1074 (La.1987). There, the Louisiana Supreme Court noted the suit involved an obligation arising out of the penalty statute, R.S. 22:658, and held such a claim to be separate and distinct from the insurer's contractual obligation under the insurance policy.
Plaintiff, on the other hand, contends that LIGA is liable for pre-insolvency and post-insolvency penalties and attorneys' fees when the insolvent insurer and/or LIGA acted arbitrarily, capriciously, or without probable cause. "Covered claims," according to plaintiff, encompass the insurance claim as well as attendant penalties and attorneys' fees imposed on Champion.
*659 Plaintiffs argue that LIGA is responsible for the statutory limit of the judgment, including interest, costs, penalties, and attorneys' fees exceeding the policy limit. It cites Aramburo v. Travelers Insurance Co., 438 So.2d 274 (4th Cir.1983), writ denied, 443 So.2d 1110 (La.1983) in support of its position. There, the Fourth Circuit held that even though the statutory limit applied only to the original amount of the claim (exclusive of interest and costs) LIGA still owed the interest and costs under its additional "obligation" imposed by R.S. 22:1382(1)(b).
As we view it, under the rationale of the Cantrelle case, supra, the obligation arising out of the penalty statute is separate and distinct from the obligation arising out of the insurer's contractual obligation. Thus, the present cause of action for penalties and attorneys' fees imposed on Champion falls outside of the "covered claims" contemplated by R.S. 22:1382(1)(a). Hence, LIGA is not responsible for the statutory penalties and attorney fees imposed on Champion. To hold otherwise would be contrary to the very purpose underlying the statutes which is "to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer...." R.S. 22:1376.
We fear that to expose LIGA to the possible thousands of claims for arbitrary and capricious non-payment by insolvent insurers, particularly in the wake of Champion's demise, could potentially threaten the very existence of the insurance guaranty fund which has as its avowed statutory purpose the avoidance of excessive delay in payment and the avoidance of financial loss to claimants or policyholders. We note further that under the 1990 amendment to R.S. 22:1379[3] statutory penalties and attorney fees are specifically excluded from a covered claim.
We do not pass on the issue of whether LIGA was responsible for statutory penalties and attorneys' fees for its own actions, for there is no evidence of such a contention contained in the record.
Accordingly, we hold LIGA is only responsible for covered claims arising under the insured's insurance policy and "covered claims" does not include statutory penalties and attorneys' fees imposed under R.S. 22:658.
Therefore, we amend the judgment to remove that portion of the April 5, 1990 judgment ordering LIGA to pay the 10% statutory penalties and $2,000.00 attorneys' fees imposed against Champion under the provisions of R.S. 22:658 and affirm the judgment in all other respects.
AMENDED AND, AS AMENDED, AFFIRMED.
NOTES
[1]  At some time (it is not clear when) LIGA paid plaintiffs the sum of $10,927.43, computed as $9,900.00 plus interest.
[2]  LSA-R.S. 22:1379(3), prior to June 29, 1990, provided as follows:

(3) "Covered claim" means an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970 and (a) the claimant or insured is a resident of this state at the time of the insured event; or (b) the property from which the claim arises is permanently located in this state. "Covered claim" shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.
[3]  On June 29, 1990, the Louisiana Legislature approved an amendment to R.S. 22:1379 which reads in part as follows:

(c) "Covered claim" shall not include any claim based on or arising from a pre-insolvency obligation of an insolvent insurer, including but not limited to contractual attorneys' fees and expenses, statutory penalties and attorneys' fees, court costs, interest and bond premiums, or any other expenses incurred prior to the determination of insolvency.


466 S.W.2d 907 (1971)
BURKS MOTORS, INC., Appellant,
v.
INTERNATIONAL HARVESTER COMPANY, Inc., et al., Appellees.
No. 5-5425.
Supreme Court of Arkansas.
March 1, 1971.
Rehearing Denied May 10, 1971.
Wootton, Land & Matthews, Hot Springs, for appellant.
Wright, Lindsey & Jennings, Little Rock, for appellees.
FOGLEMAN, Justice.
This is an appeal by Burks Motors, Inc., from that part of the judgment involved in International Harvester Company v. Pike, 249 Ark. ___, 466 S.W.2d 901 (1971), relating to contribution by International to Burks. This judgment in favor of Pike was against appellant and appellee, jointly and severally, for $87,000. Burks was *908 granted judgment against International for contribution of 91% of the judgment. Burks appealed from this judgment, contending that it was entitled to a greater contribution by International. Burks does not question the issues of liability or the amount of the judgment, but seeks only to modify the judgment in respect to contribution. It asserts that it was liable to Pike for negligence only, that the jury found that Burks' negligence and that of International Harvester contributed only 10% to the cause of Pike's damages, and that Burks' only responsibility was limited to 9% of the negligence involved as a concurring cause. We do not agree with appellant's construction of the jury verdict.
Pike's cause of action against both Burks and International was based upon both breach of warranty and negligence. Burks prayed for determination of relative fault between it and International, and judgment over against International under the Uniform Contribution among Tortfeasors Act [Ark.Stat.Ann. § 34-1001, et seq. (Repl.1962)] for its proportionate liability. Burks also asked judgment over against International for any recovery for breach of warranty.
The case was submitted to the jury upon interrogatories. No interrogatory was submitted as to whether Burks was liable for breach of warranty, because it was clearly entitled to judgment over against International for any breach of implied warranty. The circuit judge stated that he would be willing to submit further interrogatories to the jury after it had answered those submitted, if any were necessary to have further information from it to avoid any confusion.
Before any interrogatory was submitted, it was agreed by all parties that, if the jury found that International was guilty of negligence which was a proximate cause of Pike's damages, and answered other interrogatories submitted, the court would then submit a final interrogatory requiring allocation of International's liability between negligence in design on the one hand and negligence in assembly and repair on the other for the purpose of an action by International against Hendrickson Manufacturing Company, the alleged supplier of the torque rod assembly.[1] When the jury first retired, the only interrogatories submitted were directed to findings whether International Harvester was guilty of negligence constituting a proximate cause, whether Burks was guilty of such negligence, whether International was guilty of a breach of warranty which was a proximate cause, and whether Pike assumed the risk of his own injury. After these interrogatories were answered, the circuit judge submitted an interrogatory calling for apportionment of responsibility between International and Burks. The interrogatory and the answer are as follows:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
          ANSWER: International Harvester  91%
                  Company
         Burks Motors, Inc.              9%
          Total                               100%
         s/C. O. Shuffield,
           Foreman
This interrogatory was requested by Pike. Objection was made by Burks only on the ground that it failed to submit the issue of negligence on the part of Pike.
The circuit judge then submitted interrogatories as to damages. After answers to these were returned into court, he then submitted the interrogatory as to apportionment of negligence of International between *909 negligence in design and negligence in assembly and repair.
This interrogatory to which no one objected, either as to form or substance, was answered as follows:
INTERROGATORY NO. 11
Having answered Interrogatory No. 1 in the affirmative finding International Harvester negligent, you will now again using 100 as a percentage figure, apportion the degree of fault as between negligence in design and negligence in assembly or repair.
      90% Design
      10% Assembly or repair
     100%
             s/C. O. Shuffield
             Foreman
Judgment was then entered. In it, Burks was given judgment against International for 91% contribution.
Appellant argues that because the jury attributed 90% of International's negligence to negligence in design, appellant could only be liable to Pike for its pro rata part (9%) of the negligence in assembly and repair and was entitled to contribution for all of the judgment over and above that percentage (0.9%).
There is no question but what Burks was entitled to judgment over against International for any liability for breach of warranty and no objection was made by anyone to the circuit judge's statement that, upon a finding that there was such a breach which was a proximate cause, he would enter judgment against International in Burks' favor.
We do not agree with appellant's construction of the interrogatories and their answers. Liability for breach of warranty could be said to overlap or include negligence in both design and assembly, but not negligence in repair. Thus, International's breach of warranty could have contributed more than 90% to the cause of the occurrence. But this is consistent with the jury's finding that 91% of the responsibility for the occurrence lay upon International and 9% on Burks. That finding of responsibility must have included both liability for breach of warranty and negligence on the part of International, but as to Burks' responsibility, only negligence could have been considered by the jury. The plain language of the interrogatory, when considered along with the answers to the interrogatories, can lead to no other conclusion. If this was not clear, Burks had the opportunity to request further interrogatories, even after interrogatory 11 was answered. The record does not indicate that any such request was made.
Appellant's prayer for modification of the judgment is denied.
NOTES
[1]  International filed a third party complaint against Hendrickson. Quashing of the service thereon by the trial court was reversed in International Harvester Co. v. Hendrickson Mfg. Co., 249 Ark. ___, 459 S.W.2d 62 (1970).


166 P.3d 719 (2007)
STATE
v.
DAUENHAUER.
No. 79355-7.
Supreme Court of Washington, Department I.
September 5, 2007.
Disposition of petition for review denied.


Court of Appeals
of the State of Georgia

                                                              ATLANTA, March 23, 2020

The Court of Appeals hereby passes the following order

A20D0317. QUANG TRINH VAN TRUONG et al. v. GLYNN KEATON.

     Upon consideration of the Application for Discretionary Appeal, it is ordered that it be

hereby DENIED.

LC NUMBERS:

19A05460

                                      Court of Appeals of the State of Georgia
                                           Clerk's Office, Atlanta, March 23, 2020.

                                           I certify that the above is a true extract from the minutes
                                      of the Court of Appeals of Georgia.

                                           Witness my signature and the seal of said court hereto
                                      affixed the day and year last above written.

                                                                         , Clerk.