At page 618 Furnishing information to police not constituting state action70 citing casesThe mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.
- Marshall, No. 3:26-cv-02945 (D.S.C. Aug. 31, 2026).(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983 . . . .)
- Marshall, No. 3:26-cv-02945 (D.S.C. Aug. 11, 2026).(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983....)
- Van Horn v. Salvation Army, No. 24-3126 (10th Cir. May 7, 2026).unpublished(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.)
- Healy v. Planned Parenthood of Greater Ohio, No. 2:22-cv-02074 (S.D. Ohio Mar. 31, 2023).(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.)
- Anand v. Indep. Blue Cross, No. 2:20-cv-06246 (E.D. Pa. July 23, 2021).(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under [§ 1983])
- Carlson v. Town of Mountain Vill., No. 1:17-cv-02887 (D. Colo. Mar. 19, 2020).(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.)
- MacMaster v. Busacca, No. 2:21-cv-11052 (E.D. Mich. Jan. 27, 2025).The court also cited a Tenth Circuit case for the proposition that “[t]he mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1…
- Myles v. Walmart Inc., No. 5:22-cv-04069 (D. Kan. Aug. 18, 2023).Kan. 1991) (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983).
- McGregor v. Neodesha, No. 6:22-cv-01033, 2022 WL 6728149 (D. Kan. Oct. 11, 2022).Jan. 25, 2021) (citing Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009). 57 Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983). -18- D.
- Martin v. Bennett, No. 1:19-cv-02394 (N.D. Ohio Mar. 24, 2022).No. 52) at p. 8 (arguing that Martin is entitled to default judgment because Badell “knowingly fabricated allegations against Plaintiff that were made to retaliate against Plaintiff for his efforts to stop Defendant Badell from keeping jun…
Show 60 more citing cases
- Malone v. City of Murfreesboro, No. 3:21-cv-00218 (M.D. Tenn. June 17, 2021).Moreover, “[p]roviding information to the police [and] responding to questions about a crime . . . does not expose a private individual to liability for actions taken ‘under color of law.’” Moldowan v. City of Warren, 578 F.3d 351, 399 (6t…
- Jackson v. Beswick, No. 2:20-cv-02196 (D. Kan. June 18, 2020).Okla. 2015) (citing Carey v. Cont’l Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987); Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir. 1987); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)). 41 Benavidez, 722 F.2d at 618 . consp…
- Schwab v. Kobach, No. 2:18-cv-02488 (D. Kan. Apr. 28, 2020).“mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983”
- Yoast v. Pottstown Borough, 437 F. Supp. 3d 403 (E.D. Pa. 2020).publishedPa. Apr. 26, 2006) (citing Moore, 754 F.2d at 1352-53; Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983); Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir. 1979); Caswell v. BJ’s Wholesale Co., 5 F. Supp. 2d 312 , 318-19…
- Dipasquale v. Hawkins, No. 3:16-cv-00219 (S.D. Ohio Sept. 12, 2019).With regard to joint action, courts uniformly hold that merely “[p]roviding information to the police, responding to questions about a crime, and offering witness testimony at a criminal trial does not expose a private individual to liabil…
- Powell v. Miller, 104 F. Supp. 3d 1298 (W.D. Okla. 2015).publishedWhile the Tenth Circuit consistently has held citizens who merely make complaints or furnish information to police officers that result in arrests are not state actors (see, e.g., Carey v. Continental Air lines Inc., 823 F.2d 1402 (10th Ci…
- Carrillos v. Inc. Vill., 87 F. Supp. 3d 357 (E.D.N.Y. 2015).publishedSee Ginsberg, 189 F.3d at 272 ; Benavidez, 722 F.2d at 618.
- William M. Kelly, III v. Broward Sheriff's Off. Dep't of Det.'s, 560 F. App'x 818 (11th Cir. 2014).unpublished(The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.)
- Kristy Downing v. Life Time Fitness, Inc., No. 11-1699 (6th Cir. May 18, 2012).unpublishedMoldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983).
- Kristy Downing v. Life Time Fitness, Inc., 483 F. App'x 12 (6th Cir. 2012).unpublishedMoldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- McFadyen v. Duke Univ., 786 F. Supp. 2d 887 (M.D.N.C. 2011).publishedMoreover, courts have held that “provision of background information to a police officer does not by itself make [a private actor] a joint participant in state action under Section 1983.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F…
- Young v. Suffolk Cnty., 705 F. Supp. 2d 183 (E.D.N.Y. 2010).published Young, and Joseph Quatela, planned and executed a warrant-less invasion and search of Deborah Young’s residence in direct violation of her Fourth Amendment rights .... ” (Id. ¶ 21 (emphasis added).) As noted earlier, the Court recognizes t…
- Jones v. Wet Seal Retail, Inc., 519 F. Supp. 2d 1164 (D. Kan. 2007).publishedJones v. Wal-Mart Stores, No. 93-5240, 1994 WL 387887, at *3 (10th Cir. July 27, 1994) (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Carey v. Cont’l Airlines, 823 F.2d 1402, 1404 (10th Cir.1987); Lee v. Town of Estes Par…
- Arline v. City of Jacksonville, 359 F. Supp. 2d 1300 (M.D. Fla. 2005).publishedBenavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Loeks v. Reynolds, 34 F. App'x 644 (10th Cir. 2002).unpublishedBenavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Tobias v. Cnty. of Putnam, 191 F. Supp. 2d 364 (S.D.N.Y. 2002).publishedSee, e.g., Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir.1999) (“Where, as here, a police officer exercises independent judgment in how to respond to a private party’s legitimate request for assistance, the privat…
- Seeds v. Lucero, 177 F. Supp. 2d 1261 (D.N.M. 2001).published(furnishing information to enforcement officials insufficient to render private citi *1269 zens liable as state actors under Section 1983)
- Weaver v. Boyles, 172 F. Supp. 2d 1333 (D. Kan. 2001).published(An individual does not act under color of law merely by reporting an alleged crime to police officers who take action thereon)
- Heaning v. NYNEX-New York, 945 F. Supp. 640 (S.D.N.Y. 1996).published(the mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.)
- Peterson v. Barnes, 92 F.3d 1197 (10th Cir. 1996).unpublishedThe court found Peterson failed to assert any facts in support of his jurisdictional assertions under 42 U.S.C. § 1985 (2), failed to state a claim under 42 U.S.C. § 1985 (3), see Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993), cert…
- Gilbert v. Sears, Roebuck & Co., 899 F. Supp. 597 (M.D. Fla. 1995).publishedBenavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Bisbee v. Bey, 39 F.3d 1096 (10th Cir. 1994).publishedOn several occasions, this court has applied the doctrine of qualified immunity in section 1985 cases without addressing the predicate question of whether the immunity is applicable. 1 See, e.g., Langley v. Adams County, 987 F.2d 1473, 148…
- Kenneth L. Bisbee v. John Bey, in His Individual Capacity James Johnson, in His Individual Capacity & E.E. Vanbuskirk, in His Individual Capacity, & Converse Cnty. Bd. of Cnty. Commissioners, Kenneth L. Bisbee v. John Bey, in His Individual Capacity James Johnson, in His Individual Capacity E.E. Vanbuskirk, in His Individual Capacity & Converse Cnty. Bd. of Cnty. Commissioners, 39 F.3d 1096 (10th Cir. 1994).publishedOn several occasions, this court has applied the doctrine of qualified immunity in section 1985 cases without addressing the predicate question of whether the immunity is applicable. 1 See, e.g., Langley v. Adams County, 987 F.2d 1473, 148…
- Seamons v. Snow, 864 F. Supp. 1111 (D. Utah 1994).publishedSwoboda v. Dubach, 992 F.2d 286 (10th Cir.1993); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Jones v. Wal-Mart Stores, Inc., 33 F.3d 62 (10th Cir. 1994).publishedBenavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Occhino v. Lannon, 150 F.R.D. 613 (D. Minn. 1993).publishedSarmiento v. Texas Board of Veterinary Medical Examiners, 939 F.2d 1242 , 1246 n. 5 (5th Cir.1991); Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir.1988); Sims v. Jefferson Downs Racing Association, 778 F.2d 1068, 1078-79 (5th Cir.1985);…
- Urbanic v. Rosenfeld, 616 A.2d 46 (Pa. Commw. Ct. 1993).publishedIn considering the application of these principles, we keep in mind that the act of furnishing information to the police does not constitute joint action under color of state law which would render a defendant liable under Section 1983, se…
- Michael C. Washington v. Russell Hall, 989 F.2d 508 (10th Cir. 1993).publishedSooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); see Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230-31 (10th Cir.1990); Reed v. Dunham, 893 F.2d 285, 287 (10th Cir.1990); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir…
- Bankston v. Pass Road Tire Ctr., Inc., 611 So. 2d 998 (Miss. 1992).published (finding no state action where a private citizen furnished information to the police officer and there is no further evidence of collusion or a plan between the private citizen and state officials)
- Taliaferro v. Voth, 774 F. Supp. 1326 (D. Kan. 1991).published Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Linda Wray Lord v. Richard Riley, 921 F.2d 272 (4th Cir. 1991).unpublishedDaniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir.1988); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Johnson v. Miller, 680 F.2d 39, 40-41 (7th Cir.1982). 6 It is true that an otherwise private action may come within the scope…
- Thomas v. Beth Israel Hosp. Inc., 710 F. Supp. 935 (S.D.N.Y. 1989).publishedSee Haag v. Cuyahoga County, 619 F.Supp. 262, 283 (N.D.Ohio 1985), aff'd, 798 F.2d 1414 (6th Cir.1986); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Daniel Francis Carey v. Cont'l Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987).publishedBenavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983).
- Tauvar v. Bar Harbor Congregation of Jehovah's Witnesses, Inc., 633 F. Supp. 741 (D. Me. 1986).published(Report of a state crime not considered action under color of state law)
- Stephenson v. Esquivel, 614 F. Supp. 986 (D.N.M. 1985).publishedSooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (per curiam); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977); Harley v. Oliver, 539 F.2d 1143, 1146 (8th Cir.…
- LeSavage v. White, 755 F.2d 814 (11th Cir. 1985).published“[tjhis is a practical answer to a difficult question”
- Audrey Lesavage & Bernard Lesavage v. Gerald White & Phyllis White, James E. Carpenter, Pasco Cnty., Defendants- Bernard Lesavage v. James Carpenter, Gerald White & Phyllis White, 755 F.2d 814 (11th Cir. 1985).published“[t]his is a practical answer to a difficult question”
- Greg Myers v. R. Kathleen Morris, 810 F.2d 1437 (8th Cir. 1987).published
- Stewart Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268 (2d Cir. 1999).published
- Moldowan v. City of Warren, 573 F.3d 309 (6th Cir. 2009).published
- Bryant-Bruce v. Vanderbilt Univ., Inc., 974 F. Supp. 1127 (M.D. Tenn. 1997).published
- Rodgers v. Lincoln Towing Serv., Inc., 596 F. Supp. 13 (N.D. Ill. 1984).published
- Swayne v. L.D.S. Soc. Servs., 795 P.2d 637 (Utah 1990).published
- Jeffrey Moldowan v. Maureen Fournier, 570 F.3d 698 (6th Cir. 2009).published
- Jeffrey Moldowan v. Maureen Fournier, No. 07-2117 (6th Cir. July 23, 2009).
- Jeffrey Moldowan v. Maureen Fournier, 578 F.3d 351 (6th Cir. 2009).published
- Schaffer v. Salt Lake City Corp., 814 F.3d 1151 (10th Cir. 2016).published
- Welch v. Saunders, 720 F. App'x 476 (10th Cir. 2017).unpublished
- Romero v. Brown, 859 F. App'x 245 (10th Cir. 2021).unpublished
- Lockhead v. Weinstein, 24 F. App'x 805 (9th Cir. 2001).unpublished
- Young v. Suffolk Cnty., 922 F. Supp. 2d 368 (E.D.N.Y. 2013).published
- VanHorn v. Salvation Army, No. 2:23-cv-02009 (D. Kan. Mar. 25, 2024).
- Serna v. Webster, No. 1:23-cv-00083 (D.N.M. Mar. 31, 2023).
- Serna v. Webster, No. 1:23-cv-00083 (D.N.M. Apr. 18, 2023).
- Payne v. Sultzer, No. 4:19-cv-00414 (N.D. Okla. Aug. 13, 2019).
- Payne v. Sultzer, No. 4:19-cv-00414 (N.D. Okla. Sept. 30, 2019).
- Engel v. Engel, No. 3:21-cv-03020, 2022 WL 2208875 (D.S.D. June 21, 2022).
- Robinson v. Bailey, No. 3:19-cv-05551 (W.D. Wash. May 14, 2021).
- Fernandez v. Greyhound Lines, No. 24-2095 (10th Cir. June 2, 2025).unpublished
- Salmon, No. 5:25-cv-03268 (D. Kan. Jan. 16, 2026).
At page 617 Determining reasonable cause for police action5 citing casesdistrict attorney is not absolutely immune from suit for giving legal advice to police officers
- Cathy Burns v. Rick Reed, 894 F.2d 949 (7th Cir. 1990).published (district attorney is not absolutely immune from suit for giving legal advice to police officers)
- Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir. 1987).publishedSee Lavicky v. Burnett, 758 F.2d at 476 ; Benavidez v. Gunnell, 722 F.2d 615, 617 (10th Cir.1983); Coleman v. Turpen, 697 F.2d 1341, 1346 (10th Cir.1982).
- Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir. 1987).publishedSee Lavicky v. Burnett, 758 F.2d at 476 ; Benavidez v. Gunnell, 722 F.2d 615, 617 (10th Cir.1983); Coleman v. Turpen, 697 F.2d 1341, 1346 (10th Cir.1982).
- Jimmy Henderson v. Sophia Lopez, 790 F.2d 44 (7th Cir. 1986).published
- Flavel v. Logsdon, 718 F. Supp. 836 (D. Or. 1989).published
v.
Franklin L. GUNNELL, Individually and in his official capacity as Cache County Attorney Ray Oldham, Mel Mower, Keith Wertman and Craig Johnson, Individually and in their official capacities as Police Officers of the Logan City Police Department H. Sanford Campbell, Heber Sharp and E. Wayne Wright
This is an action under §§ 1983 and 1985 of the Civil Rights Act. The essential facts are as alleged in the complaint and as shown by the affidavits of the various parties. The district court gave judgment for each of the defendants and the plaintiffs appeal. We affirm.
Mrs. Jeanine Moss was the daughter of plaintiff Marylee Benavidez and sister of plaintiffs Jason and Jose Benavidez. Mrs. Moss was a member of the Church of Jesus Christ of Latter-Day Saints, LDS, and H. Sanford Campbell was her Bishop. She related to him her mental problems and asked for assistance for herself and her two children, aged five and seven years. She received counseling from defendants E. Wayne Wright and Heber Sharp who were both psychologists and members of LDS.
In the fall of 1979, her problems increased, ultimately requiring hospitalization. On October 12, 1979, she executed a standard form “Natural Parent Foster Care Agreement,” which provided for the voluntary placement of the children through the child placement agency of LDS. Through this agency, the children, who had been staying in the Wright home through an informal agreement with Mrs. Moss, were formally placed there.
Early, in the evening of October 14, 1979, the plaintiffs, Mrs. Benavidez and her two sons, appeared at the Wright home and demanded the children. Bishop Campbell was called. An argument ensued. Mrs. Benavidez left with the two children.
Shortly thereafter defendant Sharp and defendant police officers arrived at the scene. They were told that the children had been placed in the Wright home under the LDS agreement and that the Benavidez knew this. At the request of the police officers, a telephone call was put in to County Attorney Gunnell, the local prosecuting attorney, at his home. After being informed of the facts, he told officer Old-ham that the.officers should go to the Be-navidez home, retrieve the children, and return them to the Wrights. He said that they did not need a search warrant because it was a felony kidnapping. They were to gain entrance to the Benavidez home through cooperation, if possible, and should use whatever force was necessary to handle the situation as if it were a kidnapping. They were entitled to credit the statements made to them by the Bishop and the others.
Joined by two other officers, defendants Wertman and Johnson, the officers went to the Benavidez home. The Benavidez brothers demanded a search warrant. The officers said that they had none. A scuffle ensued. The brothers were handcuffed. The house was searched without finding the children. The brothers were taken to the[*617] police station. The brothers then became cooperative and told the officers they would try to locate the children. After making telephone calls, they learned that the children were at the home of a stepsister. The officers went there, found the children, and returned them to the Wrights’ home. The Benavidez brothers were then released. No charges were filed against them. They were in custody about three hours. See brief of appellants, p. 21.
On the basis of these facts shown by the amended complaint and the affidavits of the parties, the court entered a summary judgment of dismissal in favor of all the defendants. We shall discuss the problem as it affects each class of defendants.
The prosecuting attorney claims absolute immunity. He was called at his home after business hours and asked by the officers what they should do when there was a taking of children with threats of violence from the home of the person in whom they were under a custodial agreement with the mother. He told the officers that they should retrieve the children and return them to the Wright home. He further said that they did not need a search warrant since this was a felony kidnapping, that they should gain cooperation, if possible, to enter the Benavidez home, and that they should use whatever force necessary and should handle the situation as if it were a kidnapping.
The County Attorney claims absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. The Court in Imbler held that a prosecutor is absolutely immune from a § 1983 damage suit for his conduct in “initiating a prosecution and in presenting the State’s case,” 424 U.S. at 431, 96 S.Ct. at 995, but explicitly refused to determine “whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.” The prosecutor did not have absolute immunity in giving advice to the police officers.
In Pierson v. Bay, 386 U.S. 547, 555-557, 87 S.Ct. 1213, 1218-1219, 18 L.Ed.2d 288, the Court held that the defense of good faith and probable cause was available to police officers in an action under § 1983. Although this is an affirmative defense which may be raised before a jury, when a motion for summary judgment is properly supported by affidavits, the adverse party may not rest upon the allegations of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Kipps v. Ewell, 4 Cir., 538 F.2d 564, 566.
The Utah Code Ann., § 76-5-301, states that “(1) [a] person commits kidnapping when he intentionally or knowingly and without authority of law and against the will of the victim:-(d) [djetains or restrains a minor without consent of its parent or guardian.”
Acting upon the information given by reliable persons, the prosecutor and officers had reasonable cause to believe that a kidnapping had occurred. The prosecutor told the officers to go to the Benavidez home and make a search for the children using whatever force was necessary and that they should handle the situation as if it were a kidnapping. The police officers went to the Benavidez home and were met by the Bena-videz brothers who demanded a search warrant. Upon being told that the officers had no warrant, they blocked passage with their hands in their pockets. A scuffle ensued with the brothers being thrown to the ground and handcuffed. A search of the house did not reveal the children. They took the brothers to the police station where the brothers became cooperative and, after telephone calls, told the officers that the children were in the home of a stepsister. The children were retrieved, returned to the Wrights, and the brothers were released with no charges filed against them. They were in custody but a few hours.
On the basis of the facts presented to them, the prosecutor and police officers had good cause to act as they did. They secured the children and returned them to their foster home. Nothing in the affida[*618]vits submitted shows to the contrary. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, a case involving Presidential assistants, the Court reviewed the standard of qualified immunity and said, 457 U.S. at 819, 102 S.Ct. at 2739, “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken, ‘with independence and without fear of consequences.’ ” Citing Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288. This is a practical answer to a difficult situation. From our review of the allegations of the amended complaint and the affidavits, we are convinced that the prosecutor and the police officers have established, without contradiction, that they acted in good faith and with cause. Accordingly, they were entitled to summary judgment on the ground of qualified immunity.
Plaintiffs further contend that the private parties, Campbell, Wright, and Sharp, conspired with the prosecutor and police officers to deprive the plaintiffs of their constitutional rights in violation of §§ 1983 and 1985. The allegations of the amended complaint are in conclusory language which is not enough. Be that as it may, they reported to the police that the Wrights had custody under the child placement agency of the LDS and that the children had been taken with threats of force. In so doing, they were reporting a state crime only. We know of no case in which the report of a state crime is action under color of state law under § 1983.
The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985. See Butler v. Goldblatt Bros., Inc., 7 Cir., 589 F.2d 323, 327, cert. denied, 444 U.S. 841, 100 S.Ct. 82, 62 L.Ed.2d 53.
Affirmed.