Petition — Toner v. Hanna

October Term, 1980

JOHN J. TONER,

IRVIN WIERZBINSKI,

and

MARTIN KELLEY,

Petitioners,

VS.

JONATHAN HANNA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Joun T. CorriGAn, Prosecuting Attorney

of Cuyahoga County

Tuomas P. G11, Chief Civil Division

Assistant Prosecuting Attorney

Counsel of Record

JEFFREY P, POSNER

Assistant Prosecuting Attorney

The Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

(216) 623-7730

Attorneys for Petitioners

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

Whether a District Court’s decision exercising its dis-

cretion to abstain in an action presenting allegations of

violations of state and federal civil rights in a state’s

facility for the temporary detention of juveniles was prop-

erly overturned by the Circuit Court.

Whether application of the equitable doctrine of

abstention is proper only in cases fitting precisely within

the limits of prior cases where abstention was found ap-

propriate.

PARTIES

Jonathan Hanna, by and through his next friend, Ruth

Hanna, and Todd Hansen were Plaintiffs in the District

Court and Appellants in the Court of Appeals.

John J. Toner (Administrative Judge of the Cuyahoga

County, Ohio, Juvenile Court), Irvin Wierzbinski, and

Martin Kelley were Defendants in the District Court, Ap-

pellees in the Court of Appeals, and Petitioners herein.

Lee P. Phillips was a Defendant in the District Court and

an Appellee in the Court of Appeals.

Ill

TABLE OF CONTENTS

IND SN ca sal ced ictelens emshta enmeeneoteieetbebsniie I

I aliases ila del ceils el cada a ida ten vapteddipeanicbstsiajenaodepenieenies II

RC EDIINTINT css pessshge lise dciw late apeh-nedhdeelllgndionedmmneitbaan 1

PII iis ineieiaihc tut ieaidichabcdasnligssbashodvslibnleastetsitienmbatteadinasiinies 2

Constitutional and Statutory Provisions Involved ........ 2

NN i a aoa cceniiplpienanonilh 5

Reasons for Granting the Writ .......................scsccsscsesseeseeees 7

SII serhcchicesndcisiacisess ah aan csvatneiitsbenissceenratniarstoiniraseanipiutiieenets 11

IITA: suscscs-sisesstaadsscspnccncasbccabassebeesrsiieainsicasbennmsacapvnciniacaestiaanananies Al

Opinion of the Court of Appeals for the Sixth Cir-

ORT CERIO Fy RID wistitteccensnteceisesisirmcatansanetonnte Al

Judgment of the Court of Appeals for the Sixth Cir-

cuit (filed as mandate September 23, 1980, filed

with the District Court September 26, 1980) ..... A8

Memorandum of the District Court (May 8, 1979) .. A9

Order of the District Court (May 22, 1980) .............. A20

First Amended Complaint in the District Court ...... A21

TABLE OF AUTHORITIES

Cases

Alabama Public Service Commission v, Southern Ry.

ral ee a, MR. CONIIED © lnidektctsdsablanccddemtinenceenainn 8

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ow... 8,9

California Bankers Association v. Schultz, 416 U.S.

Be PE aia icacideacchacateiceniediitencnetaaaedinsadaeemcbenaien 9

Colorado River Water Conservation District v. United

ORNRD, ID TE a, BRO CTBT) wnsesvceniesisssccnnesesttcatenntactinnes 8, 10

IV

Haines v. Kerner, 404 U.S. 519 (1972) 02... eee eee 7

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ................ 8

Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25

RIED RSet CAR ICR nce hoe ah oe aR 8

Procunier v. Martinez, 416 U.S. 396 (1974) ......20022... 7

Railroad Commission of Texas v. Pullman Co., 312 U.S.

RRR a etn oi Wane en a RO Es Ce 8,9

Securities and Exchange Commission v. Chenery Corp.,

TO SO i 9

Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978) 8

Younger v. Harris, 401 U.S. 37 (1971) ....................cceo-2s- 8

Constitution

Constitution of the United States, Eighth Amendment 2,5

Constitution of the United States, Fourteenth Amend-

SUID. cicis ircceustanchacapenasione uipubithiaigtnaessea scisaebusdcnebaiciasshcsomonsducweedasueeamoce 2,5

Statutes

RS) RDG RE Barca ee OR 2

I a aN a Bed 2,6

ER pS AR AO PD ee aN 3,6

A ER ESREEEER AE aa aed SO NEE 2

I ra ae ek 3,6

RE eee EE IE 4,9

Other Authorities

Burger, W.E., 1977 Report, 63 A.B.A.J. 504 (1977) ...... 10

Burger, W.E., Annual Report on the State of the Ju-

dicary - 1980, 66 A.B.A.J., 295 (1980) oo. 10

Friendly, H.J., Averting the Flood by Lessening the

Flow, 59 CorNELL L. REV. 634 (1974) ooo. 10

SABRC

Supreme Court of the United States

October Term, 1980

JOHN J. TONER,

IRVIN WIERZBINSKI,

and

MARTIN KELLEY,

Petitioners,

Vs.

JONATHAN HANNA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The Prosecuting Attorney of Cuyahoga County, on be-

half of the State of Ohio, the Juvenile Court of Cuyahoga

County, Ohio, John J. Toner, Irvin Wierzbinski, and Mar-

tin Kelley, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Sixth Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals for the Sixth

Circuit is unreported, but is printed in the Appendix,

infra, p. Al. The Opinion of the Federal District Court is

unreporied, but is printed in the Appendix, infra, p. A9.

to

JURISDICTION

The decision of the United States Court of Appeals

for the Sixth Circuit was filed September 2, 1980. The

mandate was issued September 23, 1980, and was filed

. in the District Court on September 26, 1980.

This Court has jurisdiction to grant this petition under

United States Code, Title 28, Sections 1254(1) and 2101(C),

which provides for review by writ of certiorari of any case

in the courts of appeal.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment of the United States Con-

stitution, which provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.

The Fourteenth Amendment of the United States Con-

stitution, which provides, in pertinent part:

(Section 1)

No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Title 28, sec. 1331(a) of the United States Code, which

provides:

Federal question; amount in controversy; costs

3

(a) The district courts shall have original juris-

diction of all civil actions wherein the matter in con-

troversy exceeds the sum or value of $10,000, exclusive

of interest and costs, and arises under the Constitution,

laws, or treaties of the United States except that no

such sum or value shall be required in any such action

brought against the United States, any agency thereof,

or any officer or employee thereof in his official ca-

pacity.

Title 28, section 1343, parts (3) and (4) of the United

States Code, which provide:

The district courts shall have original jurisdic-

tion of any civil action authorized by law to be com-

menced by any person:

* * o

(3) To redress the deprivation, under color of

any State law, statute, ordinance, regulation, custom

or usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any

Act of Congress providing for equal rights of citizens

or of all persons within the jurisdiction of the United

States;

(4) To recover damages or to secure equitable

or other relief under any Act of Congress providing

for the protection of civil rights, including the right

to vote.

Title 42, section 1983 of the United States Code, which

provides:

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinai ce, regulation, custom, or usage, of any State

or Terriiory, subjects, or causes to be subjected, any

4

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress.

Section 2151.34 of the Ohio Revised Code, which pro-

vides in pertinent part:

In case a detention home is established as an

agency of the court, or a district detention home is

established by the courts of several counties as here-

inbefore provided, it shall be furnished and carried

on, as far as possible, as a family home in charge of

a superintendent or matron in a non-punitive neutral

atmosphere. The judge, or the directing board of a

district detention home, may appoint a superintendent,

a matron, and other necessary employees for such

home and fix their salaries. During the school year,

when possible, a comparable educational program with

competent and trained staff shall be provided for those

children of school age. A sufficient number of trained

recreational personnel shall be included among the

staff to assure wholesome and profitable leisure-time

activities. Medical and mental health services shall

be made available to insure the courts all possible

treatment facilities shall be given to those children

placed under their care. * * *

. 7 * * «

STATEMENT

On November 13, 1978, the named Plaintiffs, Jonathan

Hanna and Todd Hansen, filed a class action complaint

and a motion to certify the action as a class action. A

first amended complaint was filed November 14, 1978.

The named Plaintiffs were juveniles who had been

confined to the Cuyahoga County (Ohio) Juvenile Deten-

tion Home, a facility used for the temporary detention of

children pending juvenile court hearings or placement in

a permanent institution. The potential class was alleged

to be all children, past, present and future, who might be

or have been confined in the home.

The original complaint and the first amended com-

plaint named four defendants. Three of these are the

Petitioners herein, all of whom are or were involved in

the administration of the Cuyahoga County Juvenile De-

tention Home. The first amended complaint alleged that

the Petitioners herein failed to provide plaintiff Hansen

with a meaningful education (First Amended Complaint,

paragraphs 14-17), failed to provide adequate outdoor rec-

reation (First Amended Complaint, paragraphs 18-19), and

have failed to correct problems of excessive punishment

inflicted by their employees on the children confined in

the home (First Amended Complaint, paragraphs 20-26,

28). Additional claims were made that Petitioners have

failed to adequately select, train and supervise employees

(First Amended Complaint, paragraph 33), and that Pe-

titioners failed to provide children confined in the home

with adequate “treatment” (First Amended Complaint,

paragraph 31).

Causes of action were claimed under the Eighth and

Fourteenth Amendments to the United States Constitution,

6

under 42 U.S.C. § 1983, and under state law. Jurisdiction

was claimed pursuant to 28 U.S.C. 1343(3) and (4), and

28 U.S.C. § 1331.

The fourth Defendant, Lee Phillips, was an employee

at the Home who allegedly beat Plaintiff Hanna. He was

dismissed from this employment following investigation of

the incident.

On April 6, 1979, Plaintiffs moved for leave to file a

second amended complaint. If granted, the proposed sec-

ond amended complaint would have added two plaintiffs,

one defendant (the Cleveland Board of Education), and

would have expanded the original claims.

The District Court held a hearing on April 17, 1979,

styled a hearing on class certification. Testimony was

taken and depositions submitted.

On May 8, 1979, the District Court filed a memoran-

dum finding that the plaintiffs’ complaint ought be dis-

missed on grounds of abstention. A separate, final order

dismissing the action was entered May 22, 1979. No orders

had been entered with respect to the motion for class

certification or the motion for leave to file a second

amended complaint.

Appeal was taken to the United States Court of Ap-

peals for the Sixth Circuit. An opinion reversing the Dis-

trict Court’s order was filed September 2, 1980, together

on that date with a judgment which was issued as a

mandate on September 23, 1980 and filed with the District

Court on September 26, 1980.

REASON FOR GRANTING THE WRIT

The Court of Appeals’ restriction of the District Court’s

exercise of discretion here presents this Court with the

opportunity to deal with the abstention doctrine in the

context of conditions of juvenile confinement. The avail-

ability of the discretion to abstain in such cases is a mat-

ter of extreme importance to the District Courts in view

of the current explosion of litigation and the potential in-

terference both with state laws and with areas of important

state interests. The extent to which a District Court’s

discretion should be curtailed in such matters is an im-

portant question of federal jurisdiction which has not been,

but should be, settled by this Court.

1. This court has never dealt specifically with the

abstention doctrine as affirmatively applied to a civil

rights suit challenging conditions of confinement of in-

mates, whether the inmates be adults or, as here, juve-

niles. In cases such as Haines v. Kerner, 404 U.S. 519

(1972), dealing with dismissals of prisoners suits for fail-

ure to state a claim upon which relief can be granted, the

doctrine has not been discussed. In cases such as Procunier

v. Martinez, 416 U.S. 396 (1974), the issue has not been

resolved because the decisions below were against applica-

tion of the doctrine. Here, however, the District Court af-

firmatively exercised its discretion and applied abstention

in a conditions of confinement case. The Court of Appeals,

in reversing, dealt only with. that doctrine. This case

therefore presents this Court with a situation where the

application of the abstention doctrine is the only issue in-

volved, and the doctrine was applied in a context where

there has been no prior guidance from this Court.

2. The abstention doctrine in general remains one of

unsettled application and restrictions on it have been the

8

subject of controversy and confusion which ought be

settled.

The abstention doctrine became an important asset of

the District Courts with this Court’s decision in Railroad

Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).

The doctrine was continuously expanded by such decisions

as Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Younger

v. Harris, 401 U.S. 37 (1971); Louisiana Power & Light Co.

v. City of Thibodaux, 360 U.S. 25 (1959); and Burford v.

Sun Oil Co., 319 U.S. 315 (1943).

The Court of Appeals for the Sixth Circuit, in this

case, relied on dictum in Colorado River Water Conserva-

tion District v. United States, 424 U.S. 800 (1976), to con-

strict the doctrine and reverse the District Court. The

Colorado River case exhibits exactly the type of confusion

which requires re-examination of the restrictions on the

doctrine. In that case this Court first described the doc-

trine as one of limited application, then stated it applied

in three general categories of cases, and finally affirmed

a dismissal on what can be described as abstention applied

to a fourth category of cases. That category occurs where

concurrent state and federal civil actions are pending be-

tween the same parties on approximately the same subject,

and the federal question is not one exclusively confined

to consideration by federal courts. See also, Will v. Cal-

vert FireI surance Co., 437 U.S. 655 (1978).

This restriction of the doctrine by categorization or

pigeon-holing of its various aspects thus leads to con-

fusion. Three categories, and possibly a fourth, were out-

lined in Colorado River Water Conservation District v.

United States, supra. Abstention, however, is a question

of equitable discretion. Alabama Public Service Commis-

sion v. Southern Ry., 341 U.S. 341 (1951). It should there-

fore not be subject to a requirement that each application

9

of it fit precisely within a previously circumscribed stan-

dard.

The present case presents the opportunity to clarify

these considerations. The Court of Appeals found the Dis-

trict Court’s decision and Defendants’ claims were grounded

on the doctrine as applied in Burford v. Sun Oil Co., 319

U.S. 315 (1943), a case involving intrusion into an area

where a state had established its own elaborate review

system for actions pertaining to issuance of permits to

drill oil wells. The Court of Appeals gave a cursory treat-

ment to the other categories of abstention. Despite this

statement by the Court of Appeals, however, Defendants

had urged that Pullman-type abstention and general equi-

table considerations also supported abstention. <A party

may urge on appeal a reason for affirmance not relied on

by the Court below. California Bankers Association v.

Schultz, 416 U.S. 21, 71 (1974). The Court of Appeals

should have affirmed if the result below was right, even

though the trial court relied upon or gave a wrong rea-

son. See, Securities and Exchange Commission v, Chen-

ery Corp., 318 U.S. 80, 88 (1943).

The amended complaint herein presented questions of

state law which might have mooted or altered questions of

federal constitutional law.1 This case involves treatment

of juveniles, an area where states have traditionally a great

interest. It arguably presents difficult questions of state

law bearing on policy problems of substantiai public import

whose importance transcends the result in this case. This

case can be said then, to fit into traditional absten-

1. The amended complaint included problems of Defendants’

duties to maintain conditions described in the complaint and by

Ohio Rev. Code § 2151.34 as “nonpunitive”. The complaint also

requested an intrusion into the Detention Home’s educational and

recreational programs, also subjects of Ohio Rev. Code § 2151.34.

Plaintiffs further claimed Petitioners had a duty to provide a

“therapeutic” atmosphere in the home.

10

tion as generally described in the first two categories

treated in Colorado River, supra, even though it may not

fit precisely into the constrictions of any one case.

This Court can here clarify the restrictions on applica-

tion of the abstention doctrine, can resolve the confusion

caused by attempts to categorize aspects of abstention, and

can provide clearer guidelines to the Courts of Appeals in

reviewing cases where abstention has been ordered.

3. The decision of the Court of Appeals represents

an undue restriction on District Courts’ abilities to manage

their cases and decide what cases are most appropriate for

consideration in the state court systems. This emascula-

tion of District Courts’ power to exercise discretion merits

review.

The multiplication of litigation in the United States

severely hampers the effective administration of justice in

the federal courts. The Chief Justice of this Court has al-

ready commented on the increased burden of district judges

despite the addition of new judicial positions. See, W.E.

Burger, Annual Report on the State of the Judiciary-1980,

66 ABAJ. 295 (1980). As a method of alleviating the

burden currently imposed on Federal Courts, he has rec-

ommended elimination of diversity jurisdiction. W.E.

Burger, 1977 Report, 63 A.B.A.J. 504 (1977).

Another suggestion, by Judge Friendly of the Second

Circuit, would:

“* * * Require state prisoners complaining under the

Civil Rights Act with respect to the conditions of their

confinement to exhaust state administrative and ju-

dicial remedies, if these are adequate and effective, be-

fore bringing suit in the federal courts (footnote

omitted) .”

H. J. Friendly, Averting the Flood by Lessening the Flow,

59 CornELL L. Rev. 634, 643 (1974).

1]

Judge Friendly’s suggestion goes far beyond the prac-

tice which abstention currently allows, but it reveals that

the courts have been concerned with the type of case pre-

sented here.

This case presents the Court with the opportunity to

allow limited or total application of Judge Friendly’s plan

and to decide the extent to which "District Courts may defer

or decline jurisdiction where the matters involved are

amenable to state court proceedings.

In sum, the ruling below increases restrictions on and

confusion about the District Court’s abilities to apply the

abstention doctrine. This important area of federal prac-

tice and jurisdiction requires clarification by this Court.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that the Petition for Certiorari should be granted.

Respectfully submitted,

JOHN T. CorrIGAN, Prosecuting Attorney

of Cuyahoga County

THomas P. Guu, Chief Civil Division

Assistant Prosecuting Attorney

Counsel of Record

JEFFREY P. POSNER

Assistant Prosecuting Attorney

The Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

(216) 623-7730

Attorneys for Petitioners

Al

APPENDIX

OPINION OF THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT

(Filed September 2, 1980)

No. 79-3476

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

JONATHAN HANNA, et al.,

Plaintiffs-Appellants,

V.

JOHN J. TONER, et al.,

Defendants-Appellees.

AppEAL from the United States District Court for the

Northern District of Ohio, Eastern Division.

Before: Epwarps, Chief Judge, KrITH and Brown,

Circuit Judges.

Epwarps, Chief Judge. The federal courts were

created to vindicate the constitution and laws of the United

States, Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971); Bell v. Hood, 327 U.S. 678, 684 (1946), Marbury v.

Madison, 1 Cranch 137, 163, 177 (1803). The rule, of

course, is that their doors are open to complaints of viola-

tion of such laws. Exceptions to that rule are few and

narrowly drawn. Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 813 (1975); County of

Allegheny v. Frank Mashudda Co., 360 U.S. 185, 188-89

(1959). The exceptions would swallow the rule if a fed-

A2

eral court were required or allowed to close its doors to

a complaint charging, as here, abuse of the fundamental

constitutional rights of children in a county detention home.

The complaint in this case was filed under 42 U.S.C.

§ 1983 of the Civil Rights Act of 1871 against individuals

who have administrative responsibility for the operation of

the Cuyahoga County Juvenile Detention Home. Jurisdic-

tion is alleged under 28 U.S.C. §§ 1341 and 1343 (1976).

The named plaintiffs are four young people, repre-

sented by next of kin, who are alleged to have been sub-

jected to physical abuse, lengthy solitary confinement in-

flicted without hearing, “inhumane” conditions and de-

privation of education in the Detention Home—all in viola-

tion of Articles I, IV, VIII and XIV of the federal Con-

stitution. The suit is brought as a class action on behalf

of all young persons similarly confined; the plaintiffs

sought class certification, injunctive relief and compensa-

tory monetary damages. None of the allegations of this

complaint hav2 been heard or adjudicated and, of course,

we pass no judgment upon them. After a hearing on the

plaintiffs’ motion for class certification, the complaint was

dismissed without prejudice sua sponte by the District

Judge in reliance upon a rarely used abstention doctrine

which originated in the case of Burford v. Sun Oi: ©o.,

319 U.S. 315 (1943).

In Burford, the Supreme Court found an overriding

state concern and superior competence in the courts of

Texas to deal with a complex state regulatory scheme

for controlling the drilling of oil wells into a general un-

derground oil pool. Since we find the Burford doctrine

inapplicable to the facts cf this case, we reverse and re-

mand for trial on the merits.

A3

Settled federal law holds that allegations of violations

of the U.S. Constitution in state and local prisons and jails

are subject to the jurisdiction of the federal courts.

Zwickler v. Koota, 389 U.S. 241 (1967); McNeese v. Board

of Education, 373 U.S. 668 (1963); Procunier v. Martinez,

416 U.S. 678 (1978); Wolff v. McDonald, 418 U.S. 539

(1974); Hutto v. Finney, 437 U.S. 678 (1978); Bell v.

Wolfish, 441 U.S. 520 (1979). In Martinez, supra, the U.S.

Supreme Court said:

“TA] policy of judicial restraint cannot encompass

any failure to take cognizance of valid constitutional

claims whether arising in a federal or state institu-

tion. When a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts

will discharge their duty to protect constitutional

rights.”

416 U.S. at 405-406.

This court has squarely held that absention from

hearing claims of institutional violation of rights guar-

anteed by the U.S. Constitution is inappropriate and fed-

eral courts must hear federal constitutional claims. In

Jones v. Metzger, 456 F.2d 854, 855 (1972), this court said:

“With respect to the first argument, we recognize

that courts, especially federal courts, should be re-

luctant to become involved in the internal administra-

tion of state prisons. However, we are impressed that

the district court very carefully considered the deli-

cate balance of federal-state relations, as well as the

relationship between the judicial and executive

branches of our system of government, before deciding

to intervene. The court stated that

[i]t is well-settled that the administration of state

detention facilities is a state function. Federal

A4

courts have a natural reluctance to interfere with

such administration and will intercede only where

paramount federal constitutional or statutory

rights supervene. [Citations omitted.] Prisoners

do not lose all of their constitutional rights when

they enter a penal institution. Rather they retain

all of their constitutional rights except for those

which must be impinged upon for security or re-

habilitative purposes. [Citations omitted.]”

Many federal cases have recognized that federal courts

have exercised and should exercise jurisdiction over com-

plaints alleging federal constitutional abuse in state or

local institutions housing juveniles charged with or guilty

of criminal violations. McRedmond v. Wilson, 533 F.2d

757 (2nd Cir. 1976); Nelson v. Heyne, 491 F.2d 352 (7th

Cir. 1974), cert. denied, 417 U.S. 976 (1974). Harris v.

Bell, 402 F.Supp. 469 (W.D. Mo. 1975). Inmates of Boy’s

Training School v. Affleck, 346 F.Supp. 1157 (E.R.I. 1972).

The highest authority on federal law has, however,

written the text on the distinctions between and the lim-

ited circumstances which make abstention proper under

(a) the Pullman doctrine, Railroad Commission of Texas

v. Pullman Co., 312 U.S. 496 (1941), (b) the Burford doc-

trine, Burford v. Sun Oil Co., 319 U.S. 315 (1943) and

(c) the Younger doctrine, Younger v. Harris, 401 U.S.

37 (1971).

In Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 813 (1975), the U.S. Supreme Court

discussed our instant problem thoroughly and in authorita-

tive language:

“Abstention from the exercise of federal jurisdic-

tion is the exception, not the rule. ‘The doctrine of

abstention, under which a District Court may decline

A5

to exercise or postpone the exercise of its jurisdiction,

is an extraordinary and narrow exception to the duty

of a District Court to adjudicate a controversy prop-

erly before it. Abdication of the obligation to decide

cases can be justified under this doctrine only in the

exceptional circumstances where the order to the par-

ties to repair to the State court would clearly serve

an important countervailing interest.’ County of Alle-

gheny v. Frank Mashuda Co., 360 U. S. 185, 188-189

(1959). ‘[I]t was never a doctrine of equity that

a federal court should exercise its judicial discretion

to dismiss a suit merely because a State court could

entertain it.’ Alabama Pub. Serv. Comm’n v. Southern

R. Co., 341 U. S. 341, 361 (1951) (Frankfurter, J.,

concurring in result). Our decisions have confined

the circumstances appropriate for abstention to three

general categories.

“(a) Abstention is appropriate ‘in cases present-

ing a federal constitutional issue which might be

mooted or presented in a different posture by a state

court determination of pertinent state law.’ County

of Allegheny v. Frank Mashuda Co., supra, at 189.

See, e. g., Lake Carriers Assn. v. MacMullan, 406 U. S.

498 (1972); United Gas Pipeline Co. v. Ideal Cement

Co., 369 U. S. 134 (1962); Railroad Comm’n of Texas

v. Pullman Co., 312 U. S. 496 (1941).

“(b) Abstention is also appropriate where there

have been presented difficult questions of state law

bearing on policy problems of substantial public import

whose importance transcends the result in the case

then at bar. Louisiana Power & Light Co. v. City

of Thibodaux, 360 U. S. 25 (1959), for example, in-

volved such a question. In particular, the concern

there was with the scope of the eminent domain power

of municipalities under state law. See also Kaiser

A6

Steel Corp. v. W. S. Ranch Co., 391 U. S. 593 (1968);

Hawks v. Hamill, 288 U. S. 52 (1933). In some cases,

however, the state question itself need not be deter-

minative of state policy. It is enough that exercise

of federal review of the question in a case and in

similar cases would be disruptive of state efforts to

establish a coherent policy with respect to a matter

of substantial public concern. In Burford v. Sun Oil

Co., 319 U. S. 315 (1943), for example, the Court

held that a suit seeking review of the reasonableness

under Texas state law of a state commission’s permit

to drill oil wells should have been dismissed by the

District Court. The reasonableness of the permit in

that case was not of transcendent importance, but

review of reasonableness by the federal courts in that

and future cases, where the State had established its

own elaborate review system for dealing with the

geological complexities of oil and gas fields, would

have had an impermissibly disruptive effect on state

policy for the management of those fields. See also

Alabama Pub. Serv. Comm’n v. Southern R. Co., supra.

* * * * *

“(c) Finally, abstention is appropriate where, ab-

sent bad faith, harassment, or a patently invalid state

statute, federal jurisdiction has been invoked for

the purpose of restraining state criminal proceed-

ings, Younger v. Harris, 401 U. S. 37 (1971); Douglas

v. City of Jeannette, 319 U. S. 157 (1943); state nui-

sance proceedings antecedent to a criminal prosecution,

which are directed at obtaining the closure of places

exhibiting obscene films, Huffman v. Pursue, Ltd.,

420 U. S. 592 (1975); or collection of state taxes, Great

Lakes Dredge & Dock Co. v. Huffman, 319 U. S.

293 (1943) .”

(footnote omitted).

A7

We find no basis in our present case for abstention.

Abstention is clearly not justified by the Pullman doctrine.

Neither the defendants nor the District Judge has relied

upon it and no one has pointed to any interpretation by

the state’s highest court which might avoid a federal consti-

tutional adjudication. The same conclusions may be

reached in relation to the Younger v. Harris doctrine. The

instant case represents no interference or intervention in

state judicial processes — criminal or otherwise.

Defendants and the District Judge specifically relied

upon the Burford doctrine. We do not, however, deal

here with any complex state scheme for allocation of prop-

erty rights as to which the federal courts might lack ex-

pertise. Indeed, plaintiffs’ claims of federal constitutional

violation represent the exact sort of disputes over citizens

rights with which the federal courts were created to deal.

The Supreme Court has recognized clearly that abstention

merely to avoid conflict with a state policy is not appro-

priate. In Zablocki v. Redhail, 434 U.S. 374, 380 n.5

(1977), the Supreme Court said: “there is of course no

doctrine requiring abstention merely because resolution

of a federal question may result in the overturning of

a state policy.”

The judgment of the District Court is reversed and

the case is remanded for further proceedings consistent

with this opinion.

A8

JUDGMENT ENTRY OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed September 2, 1980; Filed in the District Court

September 26, 1980)

No. 79-3476

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

JONATHAN HANNA, et al.,

Plaintiffs-Appellants,

V.

JOHN J. TONER, et al.,

Defendants-Appellees.

Before: Epwarps, Chief Judge, Ketrn and Brown, Circuit

Judges.

JUDGMENT

APPEAL from the United States District Court for

the Northern District of Ohio

THIS CAUSE came on to be heard on the record

from the United States District Court for the Northern

District of Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be and the same

is hereby reversed and the cause remanded for further

proceedings.

No costs taxed.

Entered by Order of the Court

/s/ JOHN P. HEHMAN

Clerk

[Issued as Mandate September 23, 1980. ]

AQ

MEMORANDUM AND ORDER OF THE UNITED

STATES DISTRICT COURT

(Filed May 8, 1979)

Civil Action No, C78-1506

THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN HANNA, et al.,

Plaintiffs

Vv.

JOHN J. TONER, et al.,

Defendants

MEMORANDUM AND ORDER

KRUPANSKY, J.

This cause was initiated as a class action to challenge

various conditions of confinement at the Cuyahoga County

Juvenile Detention Home (Detention Home). The pro-

posed class consists of all minors who have been, are,

or will be confined in the Detention Home. Jurisdiction

is asserted on the bases of 28 U.S.C. §§1343(3) and

(4), which confer upon the district courts original juris-

diction over suits authorized by 42 U.S.C. §1983.

Plaintiffs allege in their First Amended Complaint

deprivations of rights guaranteed under the Eighth and

Fourteenth Amendments. Specifically, plaintiffs assert

that the Detention Home staff adheres to a practice of

administering arbitrary, inhumane, and excessive punish-

Al0

ment, and that the Detention Home fails to provide ade-

quate or meaningful educational and recreational programs

to minors therein confined.’ Plaintiffs have also recently

sought leave of the Court to file a Second Amended Com-

plaint, whereby the scope of the instant action would be

expanded appreciably. Therein, plaintiffs posit further

deprivations under the First, Fourth, Fifth, Eighth and

Fourteenth Amendments, alleging: (1) censorship of mail;

(2) solitary confinement without adequate procedural safe-

guards; (3) failure to utilize the least restrictive environ-

ment in confining certain class members; and (4) mainte-

nance of generally deficient institutional conditions, includ-

ing, inter alia, overcrowding, inadequate nutrition, restric-

tions on visitation, lack of counseling, and inadequate psy-

chiatric and medical care.

Named as defendants in plaintiffs’ First Amended

Complaint are: John J. Toner, Administrative Judge of

the Cuyahoga County Juvenile Court; Irvin Wierzbinski,

Administrator of the Juvenile Court; Martin Kelley, Super-

intendent of the Detention Home; and Lee P. Phillips,

an employee of the Detention Home. All are sued both

individually and in their respective official capacities.

Plaintiffs in addition seek in the Second Amended Com-

plaint to join as defendant the Cleveland Board of Educa-

tion.

Plaintiffs pray for both comprehensive injunctive re-

lief and compensatory damages for individually named

1. In addition to these federal claims, plaintiffs ask the

Court to exercise pendent jurisdiction over two claims premised

on state law. Plaintiffs allege first that an employee of the

Detention Home tortiously assaulted plaintiff Jonathan Hanna,

and secondly, that certain supervisory defendants, identified

below, have negligently exercised their statutory responsibilities

properly train, control and supervise Detention Home em-

ployees.

All

plaintiffs. With regard to the former, plaintiffs ask this

Court to:

3. Enter a preliminary and permanent injunction

requiring defendants Toner, Wierzbinski and Kelley

to:

(a) Exercise their duties to select, hire, fire,

train, supervise and control Detention Home em-

ployees and to set Detention Home policy so as

to eliminate reading and censorship of mail; in-

vasions of privacy; overcrowding; the use of exces-

sive force; the infliction of arbitrary, inhumane,

physical brutality and bizarre punishments; and

the abusive imposition of solitary confinement in

the Detention Home.

(b) Provide adequate education, treatment,

nutrition, sanitation, recreation, and other condi-

tions for children confined in the Detention Home.

(c) Confine all children only in the least

restrictive setting appropriate to the child’s needs.

4. Order the defendant Cleveland Board of Ed-

ucation to provide adequate education for children

confined in the Detention Home.

(Second Amended Complaint at 14-15).

In light of plaintiffs’ prayer for extensive injunctive

relief, and their resort to a federal forum, it is apparent

that there are “delicate issues of federal-state relationships

underlying this case.” Mayor of City of Philadelphia v.

Educational Equality League, 415 U.S. 605, 616, 94 S.Ct.

1323, 1331 (1974). ‘Where, as here, the exercise of au-

thority by state officials is attacked, federal courts must

be constantly mindful of the ‘special delicacy of the ad-

justment to be preserved between federal equitable power

Al2

and State administration of its own law.’” Rizzo v. Goode,

423 U.S. 362, 379, 96 S.Ct. 598, 607 (1976), quoting Stef-

anelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120 (1951).

The Court observes further that state courts enjoy

concurrent jurisdiction with federal courts over civi! rights

actions brought pursuant to 42 U.S.C. §1983. Loag v. Dis-

trict of Columbia, 469 F.2d 927 (D.C. Cir. 1972); Spence v.

Latting, 512 F.2d 93 (10th Cir.) cert. denied 424 U.S. 896,

96 S.Ct. 198 (1975). In view of the availability of a state

forum wherein plaintiffs may be afforded complete proce-

dural due process, and in deference to the obligation of

the federal courts to avoid “needless conflict in the federal-

state relationship” Forest Hills Utility Company v. City of

Heath, 539 F.2d 592, 595 (6th Cir. 1976) quoting Gay v.

Board of Registration Commissioners, 466 F.2d 879 (6th Cir.

1972), this Court determines that plaintiffs’ claims are

properly the subject of judicial abstention.

The propriety of considering abstention sue sponte is

well established. Bellotti v. Baird, 428 U.S. 132, 143 n. 10,

96 S.Ct. 2857, 2864 n. 10 (1976). See Muskegon Theatres,

Inc. v, City of Muskegon, 507 F.2d 199, 201 (6th Cir. 1974);

AFA Distributing Company, Inc. v. Pearl Brewing Com-

pany, 470 F.2d 1210, 1213 (4th Cir. 1973). This is derived

from the strong “‘public policy underlying the application of

the abstention doctrine.” Id. at 1213.

The primary reference on abstention is the decision

of the Supreme Court in Railroad Commission of Texas v.

Puliman Company, 312 U.S. 496, 61 S.Ct. 643 (1941).

There the Court, reasoning in support of abstention by the

federal courts, stated:

Few public interests have a higher claim upon the dis-

cretion of a federal chancellor than the avoidance of

needless friction with state policies, whether the policy

relates to the enforcement of the criminal law

7

. 7 *)

Al3

or the administration of a specialized scheme for liqui-

dating embarrassed business enterprises . . .; or the

final authority of a state court to interpret doubtful

regulatory laws of the state.... These cases reflect a

doctrine of abstention appropriate to our federal sys-

tem whereby the federal courts, ‘exercising a wise dis-

cretion”, restrain their authority because of “scrupu-

lous regard for the rightful independence of the state

governments” and for the smooth working of the fed-

eral judiciary. Id. at 500-501 [citations omitted].

The Supreme Court’s most recent comprehensive pro-

nouncement respecting the abstention doctrine was pro-

vided in Colorado River Water Conservation District v.

United States, 424 U.S. 800, 96 S.Ct. 1236 (1976). There

the Court, while noting that ‘‘[a]bstention from the exer-

cise of federal jurisdiction is the exception, not the

rule’, acknowledged that abstention is justified “ ‘in the ex-

ceptional circumstances where the order to the parties to

repair to the state court would clearly serve an important

countervailing interest’”. Id. at 814, quoting County of

Allegheny v. Frank Mashuda Company, 360 U.S. 185, 188-

189, 79 S.Ct. 1060, 1063 (1959). In describing one of the

three general categories of cases where abstention has

been sanctioned, the Court explained:

Abstention is also appropriate where there have been

presented difficult questions of state law bearing on

policy problems of substantial public import whose im-

portance transcends the result in the case then at bar.

Louisiana Power & Light Co. v. City of Thibodaux,

360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), for

example, involved such a question. In particular, the

concern there was with the scope of the eminent do-

main power of municipalities under state law.... In

some cases, however, the state question itself need

Al4

not be determinative of state policy. It is enough that

exercise of federal review of the question in a case

and in similar cases would be disruptive of state ef-

forts to establish a coherent policy with respect to a

matter of substantial public concern. In Burford v.

Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed.

1424 (1943), for example, the Court held that a suit

seeking review of the reasonableness under Texas state

law of a state commission’s permit to drill oil wells

should have been dismissed by the District Court.

The reasonableness of the permit in that case was not

of transcendent importance, but review of reasonable-

ness by the federal courts in that and future cases,

where the State had established its own elaborate re-

view system for dealing with the geological complexi-

ties of oil and gas fields, would have had an imper-

missibly disruptive effect on state policy for the man-

agement of those fields. Colorado River Water Conser-

vation District v. United States, supra at 815-816 [Cita-

tions omitted].

Federal abstention of the nature described above has

been characterized by many courts as Burford-type absten-

tion, taking its name from the leading case of Burford v.

Sun Oil Company, supra. It is clear that the Burford

variety of absiention counsels federal abdication in order

to avoid needless conflict with the administration by a state

of its own internal affairs. See Kelly Services, Inc. v.

Johnson, 542 F.2d 32 (7th Cir. 1976); BT Investment Man-

agers, Inc. v. Lewis, 559 F.2d 950, 954 (5th Cir. 1977); cf.

Forest Hills Utility Company v. City of Heath, supra. Ac-

cordingly, “under Burford-type abstention, the federal

courts defer primarily because of the nature of the state

regulatory interest in a particular subject matter and the

potential for disruption engendered by federal interven-

tion” Construction Aggregates Corp. v. Rivera de Vicenty,

Al5

573 F.2d 86, 90 (1st Cir. 1978). See also Wynn v. Carey,

582 F.2d 1375, 1382-1383 (7th Cir. 1978). As the Fifth

Circuit stated in BT Investment Managers, Inc. v. Lewis,

supra at 955:

[A] court invoking Burford-type abstention essentially

defers to a state’s overriding interest in the matters

sub judice and, concomitantly, to the superior com-

petence of the state’s courts to adjudicate such matters.

Thus, usually at issue in Burford-type cases are state

regulatory matters such as regulation of natural re-

sources, education, or eminent domain, where a para-

mount state interest is apparent, where the history of

state judicial experience in the area indicates special

reliability, or, even absent an established regulatory

scheme, where the intrusion of federal adjudication

might handicap state government. Unlike Pullman-

type abstention, Burford-type abstention requires

neither the presence of a state issue nor unclarity in

pertinent state law. Rather, a court abstaining under

Burford relegates a federal issue to state court adjudi-

cation because the federal issue touches some over-

riding state interest such as those just described.

(footnotes omitted)

In light of the relevant case law, and upon review of

the record in the instant case, this Court is constrained to

conclude that federal abstention is necessary herein to avoid

needless interference with the administation of the State

of Ohio’s juvenile justice system. It is this Court’s firm

conviction that federal intervention in this and similar cases

will prove disruptive of this State’s efforts to maintain “a

coherent policy with respect to a matter of substantial pub-

lic concern.” Colorado River Water Conservation District

v. United States, supra at 815.

Al6

In evaluating the propriety of abstention here, it can

hardly be disputed that the care, education, and protection

of juveniles is both a traditional local concern and a matter

of substantial public importance. Moreover, it is apparent

from an examination of pertinent Ohio statutory provisions,

and court interpretations thereof, that the State of Ohio

strictly adheres to a policy of vesting with local juvenile

judges, such as defendant Toner in the instant proceeding,

broad powers over the maintenance and administration of

the state juvenile detention facilities. A review of the

relevant state law is instructive.

By virtue of §2151.34, O.R.C.,? the very power to estab-

lish county juvenile detention homes lies within the ex-

clusive discretion of the local juvenile court judge. See

33 O. Jur. 2d Juvenile Courts §27. Upon his recommenda-

tion, the county must provide a suitable facility, and man-

damus will lie to compel compliance. State ex rel. Ray v.

South, 176 Ohio St. 241, 198 N.E. 2d 919 (1964); State ex

rel, Johns v. Board of County Commrs. of Richland County,

29 Ohio St. 2d 6, 278 N.E. 2d 19 (1972).

Once a detention home is established, it is considered

an agency of the juvenile court, and the juvenile judge is

authorized by statute to “appoint a superintendent, a

matron, and other necessary employees for such home and

fix their salaries.” §2151.34, O.R.C.’ Moreover, under

2. §2151.34, O.R.C., provides in material part: “Upon the

advice and recommendation of the judge, the board of county

commissioners shall provide, by purchase, lease, construction, or

otherwise, a place to be known as a detention home... where

delinquent, unruly, dependent, neglected, abused children or

juvenile traffic offenders may be detained until final disposition,”

3. §2151.10, O.R.C., provides in material part:

“The board of county commissioners shall appropriate

such sum of money each year as will meet ail the admin-~

istrative expense of the juvenile court, ... and such sum

(Continued on following page)

Al7

§2151.10, O.R.C., as construed by the Ohio Supreme Court,

wide latitude is conferred upon the juvenile judge both in

determining the budgetary requirements of the juvenile

court and the detention home, and in enforcing those deter-

minations. Thus, it has been consistently held that the

determination of the necessary expenses of the local ju-

venile justice system is committed to the sound discretion

of the juvenile judge, with the board of county commis-

sioners having no authority to substitute its judgment for

that of the juvenile judge. State ex rel. Moorehead v.

Reed, 177 Ohio St. 4, 201 N.E. 2d 594 (1964); State ex rel.

Foster v. Board of County Commrs. of Lucas County, 16

Ohio St. 2d 89, 242 N.E. 2d 884 (1968); State ex rel. Mil-

ligan v. Freeman, 31 Ohio St. 2d 13, 285 N.E. 2d 352 (1972).

Further, mandamus is available to enforce the duty of the

board of county commissioners to appropriate the amount

requested by the juvenile judge. Id.

In addition to the mandamus remedy, the Ohio Su-

preme Court has held that, upon the failure or refusal of

the responsible governmental body to provide necessary

appropriations, the juvenile court affected thereby pos-

sesses “the inherent power to order such appropriation

and to enforce its order by contempt proceedings.” State

ex rel. Edwards v. Murray, 48 Ohio St. 2d 303, 358 WN.E.

577, 579 (1976). The decision in State ex rel. Edwards

was most recently reaffirmed in State ex rel. Board of

County Commrs. of Cuyahoga County v. Juvenile Division

Footnote continued—

each year as will provide for the maintenance and opera-

tion of the detention home, the care, maintenance, education,

and support of neglected, abused, dependent, and delinquent

children, . . . and for necessary orthopedic, surgical, and

medical treatment, and special care as may be ordered by

the court for any neglected, abused, dependent, or delinquent

children. All disbursements from such appropriations shall

fal upon specifically itemized vouchers, certified to by the

judge.”

Al8

of the Court of Common Pleas of Cuyahoga County, 54

Ohio St. 2d 113, 374 N.E. 2d 1369 (1978), wherein the

Supreme Court of Ohio upheld the jurisdiction of the

Court of Common Pleas to proceed in a contempt action

brought to compel the county commissioners to appropriate

funds requested for the operation of the very juvenile

justice system involved in the instant litigation.

It is clear from the foregoing that, under Ohio statu-

tory and decisional law, scrupulous regard for the inde-

pendence of local juvenile judges in the performance

of their responsibilities respecting the maintenance and

administration of juvenile detention facilities is mandated.

This mandate may well reflect a legislative judgment

that the primary responsibility for the care, protection,

and treatment of minors is best entrusted to local juvenile

court judges, who are vested with broad discretion to

better implement the specialized expertise they can right-

fully be expected to acquire.

It is equally clear, moreover, that federal intervention

in the case at bar and in similar cases would seriously

threaten the independence of local juvenile judges, and

jeopardize the application of their expertise. Accordingly,

and in view of the principles articulated above, this Court

finds that abstention is herein required to “avoid any pos-

sible irritant in the federal-state relationship.” Reetz v.

Bozanich, 397 U.S. 82, 88, 90 S.Ct. 788, 790 (1970). While

the Court recognizes that plaintiffs raise substantial fed-

eral claims, the Court observes, as it must, that ours is a

“system in which there is sensitivity to the legitimate

interests of both State and National Governments,

and in which the National Government, anxious

though it may be to vindicate and protect federal

rights and federal interests, always endeavors to do

Alg

so in ways that will not unduly interfere with the

legitimate activities of the States.”

Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750,

quoted in Ohio Bureau of Employment Services v. Hodary,

431 U.S. 471, 97 S.Ct. 1898, 1904 (1977). In view of the

availability of a state court system where plaintiffs’ rights

may be fully vindicated, with complete procedural due

process afforded, this Court declines to exercise its jur-

isdiction in such a manner as to occasion “needless con-

flict in the federal-state relationship” Forest Hills Utility

Company v. City of Heath, supra.

Abstention being warranted out of “proper regard

for the rightful independence of state governments in

carrying out their domestic policy”, Burford v. Sun Oil

Company, supra at 318, quoting Commonwealth of Penn-

sylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 385,

the “surrender of federal jurisdiction, not its mere post-

ponement” is appropriate. Construction Aggregates Corp.

v. Rivera de Vicenty, supra at 89. See Baltimore Banks

For Cooperatives v. Farm Cheese Cooperative, 583 F.2d 105,

108 (3d Cir. 1978); BT Investment Managers, Inc. v. Lewis,

supra at 955. Accordingly, plaintiffs’ complaint is hereby

dismissed.

IT IS SO ORDERED.

/s/ RoBERT B. KRUPANSKY

United States District Judge

A20

ORDER OF THE UNITED STATES

DISTRICT COURT

(Filed May 22, 1979)

No. C78-1506

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN HANNA, et al.,

Plaintiffs,

vs.

JOHN J. TONER, et al.,

Defendants.

ORDER

KRUPANSKY, J.:

In accordance with the Memorandum and Order filed

herein on May 8, 1979,

IT IS ORDERED that the complaint herein is dis-

missed without prejudice without costs.

/s/ Rosert B. KRuUPANSKY

United States District Judge

—

=

A21

FIRST AMENDED COMPLAINT FILED IN THE

DISTRICT COURT

Case No. C78-1506

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN HANNA, by and through his next friend

RUTH HANNA, individually and on behalf of all

others similarly situated,

and

TODD HANSEN, individually and on behalf of all

others similarly situated,

Plaintiffs,

VS.

JOHN J. TONER, individually and in his official ca-

pacity as Administrative Judge of the Cuyahoga

County Juvenile Court,

and

IRVIN WIERZBINSKI, individually and in his of-

ficial capacity as Administrator of the Cuyahoga

County Juvenile Court,

and

MARTIN KELLEY, individually and in his official

capacity as Superintendent of the Cuyahoga County

Juvenile Detention Home,

and

LEE P. PHILLIPS, individually and in his official

capacity as an employee of the Cuyahoga County

Juvenile Detention Home,

Defendants.

JUDGE KRUPANSKY

A22

FIRST AMENDED COMPLAINT FOR MONEY DAM-

AGES AND INJUNCTIVE RELIEF

NATURE OF CASE

1. This class action challenges the inhumane condi-

tions, physical violence, and lack of adequate education

and recreation in the Cuyahoga County Juvenile Detention

Home. Plaintiff Jonathan Hanna, a 16-year old boy, was

brutally beaten in the Juvenile Detention Home on May

29, 1978, by a Detention Home staff member. Plaintiff

Todd Hansen, who is 18 years old, has been confined in the

Detention Home for over 100 days since April, 1978. Like

the class of children confined at the Detention Home which

plaintiff seeks to represent, plaintiff Hansen has not re-

ceived any meaingful education or recreation. The class

of children has also been subjected to or threatened with

acts of violence similar to that suffered by plaintiff Hanna.

Plaintiffs seek injunctive relief on behalf of the class and

monetary damages for the named plaintiffs.

JURISDICTION

2. Jurisdiction is conferred on this Court by 28 U.S.C.

§§1343 (3) and (4), which confer original jurisdiction upon

the United States District Courts in all suits authorized

by 42 U.S.C. §1983 for deprivation under color of state

law of civil rights. This Court also has jurisdiction over

this action under 28 U.S.C. §1331. The amount in con-

troversy exclusive of interest and costs exceeds $10,000,

and the suit arises under the Constitution and laws of the

United States. Jurisdiction over plaintiff Hanna’s state

law claims is allowable under the doctrine of pendent

jurisdiction.

A23

PARTIES

3. Plaintiff Jonathan Hanna is a 16 year old citizen

of the United States and the State of Ohio. He is a resi-

dent of the City of Cleveland but is currently placed in

the Buckeye Youth Center, an Ohio Youth Commission

facility in Columbus, Ohio. He brings this suit through

his mother and next friend, Ruth Hanna. He was confined

in the Cuyahoga County Juvenile Detention Home (here-

inafter “Detention Home”) from May 20, 1978 to June 7,

1978.

4. Plaintiff Todd Hansen is a citizen of the United

States and the State of Ohio who is currently confined in

the Detention Home. He became 18 on September 29,

1978. He has been confined in the Detention Home since

September 26, 1978. Over the past six months he has

been confined in the Detention Home for more than 100

days.

5. Defendant John J. Toner is, and was at all times

relevant hereto, the Administrative Judge of the Juvenile

Court Division of the Cuyahoga County Court of Common

Pleas. He is sued individually and in his administrative

capacity as the person in charge of the Detention Home

pursuant to §2151.34 O.R.C.

6. Defendant Irvin Wierzbinski is, and was at all times

relevant hereto, the Court Administrator of the Juvenile

Court. As such, he shares responsibility with defendant

Toner for the administration and supervision of the De-

tention Home.

Lad

i. Defendant Martin Kelley is and was at all times

relevant hereto the Superintendent of the Detention Home.

8. Defendant Lee P. Phillips was at all times relevant

hereto employed by the other defendants to supervise

children confined in the Detention Home.

A24

9. At all times relevant hereto, all of the defendants

acted un r color of state law.

CLASS ACTION ALLEGATIONS

10. The named plaintiffs bring their first and second

claims individually and on behalf of all children who have

been or will be confined in the Cuyahoga County Juvenile

Detention Home. The plaintiff class consists of thousands

of persons and is so numerous that joinder of all members

is impracticable. Questions of law and fact, such as the

nature and constitutionality of defendants’ policies and

practices in the treatment of children confined in the De-

tention Home, are common to all members of the class.

The claims of the named plaintiffs are typical of those

of the class. There are no known conflicts between the

named plaintiffs and the proposed class, and the named

plaintiffs will adequately represent the interests of the

plaintiff class.

11. This suit seeks to require defendants to adhere

to a uniform standard in the treatment of children con-

fined in the Detention Home. The prosecution of separate

actions by individual members of the class would create

a risk of varying adjudications with respect to individual

members of the class which would establish inconsistent

standards of conduct by the defendants.

12. The defendants have acted and refused to act

on grounds generally applicable to the class, thereby mak-

ing appropriate final injunctive relief and corresponding

declaratory relief with respect to the class as a whole.

FACTUAL ALLEGATIONS

13. The Detention Home is a facility maintained by

defendants under authority of §2151.34 O.R.C. for the tem-

porary confinement of children. Most children in the De-

A25

tention Home are awaiting trial. Others have been found

delinquent, unruly, dependent, neglected, or abused, and

are being held while a placement is sought.

14. Lack of Education. The Detention Home fails

to provide any adequate or meaningful educational pro-

gram for young people confined there, even though the

confinement may extend for months. Children are allowed

to attend three hours a day of “class” in Detention Home

during the school year. Children are assigned to these

classes by size and age rather than by school level. The

“instruction” is entirely non-academic and has no relation

to the child’s normal school program. It consists of mo-

tion pictures about football and other subjects; elementary,

routine word puzzles; and an occasional lecture about find-

ing jobs. Children in the Detention Home are not allowed

to attend regular classes in the public schools.

15. Plaintiff Todd Hansen is 18 and would have en-

tered twelfth grade in a public high school this fall had

he not been confined in the Detention Home. He has

always achieved passing grades in school. During his

term in the Detention Home, he has received no education

with any relation to any twelfth grade courses. He is now

hopelessly behind in twelfth grade studies. Even if he

were released from the Detention Home immediately and

allowed to attend a public school, it would be almost im-

possible by now for him to complete twelfth grade on

schedule. A high school diploma is crucial for him if he

is to pursue a career.

16. Defendants’ failure to provide plaintiff Hansen

with meaningful education significantly impairs his ability

to obtain a high school diploma and to pursue a meaning-

ful career. This danger is grave, immediate, increasing,

and irreparable.

A26

17. Other children who are or have been confined in

the Detention Home are similarly denied meaningful

education and have suffered or are threatened with similar

irreparable injury.

18. Lack of Recreation. Children in the Detention

Home are denied reasonable opportunity for recreation,

specifically including outdoor exercise. Neither plaintiff

Hansen nor the other children in his unit have been outside

once for recreation since plaintiff Hansen’s current con-

finement began on September 16, 1978.

19. The denial of outdoor recreation is harmful both

psychologically and physically to children confined in

the Detention Home. Children who are or have been

confined in the Detention Home have suffered or are

threatened with continuing irreparable harm because of

the defendants’ failure to allow them outdoor exercise.

20. Physical Violence and Inhumane Punishment.

The Detention Home staff follows, and has followed at all

times relevant hereto, a pattern or practice of inflicting

inhumane, arbitrary, excessive physical violence and bi-

zarre and barbaric punishment upon children confined

there. Children, including plaintiffs Todd Hansen and

Jonathan Hanna, have been repeatedly subjected to such

practices while confined in the Detention Home.

21. On May 29, 1978, while showing a friend that he

had been issued and was wearing two pairs of pants be-

cause both had holes in them, plaintiff Jonathan Hanna

was accused by defendant Lee Phillips and another guard

of exposing himself. Plaintiff Jonathan Hanna denied the

accusations but was not given an opportunity to be heard

or contest the charges. Nor had he ever been informed of

the punishment that would follow from this or other de-

fenses [sic].

A27

22. After making these accusations, defendant Phil-

lips and another Detention Home employee took plaintiff

Hanna to a solitary “lockup” room maintained in the De-

tention Home by defendants. Defendant Phillips then

brutally kicked, hit, and beat Jonathan Hanna, without

cause. Defendant Phillips slashed plaintiff Hanna’s scalp

by beating him with the sharp heel of a platform shoe.

23. Plaintiff Hanna was left bleeding and in severe

pain in the solitary “lockup” room as a result of this beat-

ing, until other Detention Home staff members came to

his assistance. He was taken to St. Vincent Charity Hos-

pital where he received emergency treatment, including

stitches.

24. As a direct and proximate result of the physical

assault upon him on May 29, 1978, plaintiff Hanna suf-

fered and continues to suffer extreme pain, physical harm,

shock, mental anguish, and emotional distress. In com-

pliance with §2307.42 O.R.C., he states that he has re-

ceived no benefits as a result of said beating and the

ensuing treatment.

25. In approximately the third week of October, 1978,

plaintiff Todd Hansen’s unit was “floored” by the Denten-

tion Home staff as punishment for the misbehavior of one

child. All of the furniture except the beds was removed

from the unit and the children were confined to the unit

for three days. During the days they had to stand, squat,

or sit on the floor. They were allowed no writing material,

games, or recreation. Their food was brought into the unit

on plates, which were placed on the floor for them to eat

from.

26. The Detention Home employees follow a practice

of “floorirg” units from time to time as punishment. This

punishment is cruel, arbitrary, inhumane, and degrading.

All children in the Detention Home are subject to a con-

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tinuing threat that this or other bizarre punishments will

be imposed upon them for their own misbehavior or that

of another child.

27. Defendants’ Responsibilities. Defendants Toner,

Wierzbinski, and Kelley are responsible for selecting, hir-

ing, firing, instructing, training, supervising and controlling

all Detention Home employees and setting all Detention

Home policies. They also have a duty to maintain a

therapeutic and nonpunitive atmosphere in the Detention

Home. They have knowingly failed to exercise their re-

sponsibilities in a way to avoid and control the practices

described in paragraphs 13 through 26 of this complaint.

28. Defendants Toner, Wierzbinski and Kelley have

knowledge of the denial of education, the denial of recrea-

tion, and the infliction of base, excessive physical force

and degrading, inhumane punishment in the Detention

Home. They have not taken steps to correct these prac-

tices but have acquiesced in or condoned them.

29. The injuries and threatened future injuries to

plaintiffs Jonathan Hanna and Todd Hansen, and to the

other children in the Detention Home, are proximately

caused by the actions and nonfeasance of defendants Toner,

Wierzbinski, and Kelley. Defendants Toner, Wierzbinski

and Kelley have acted deliberately and with gross and

reckless negligence, and have displayed deliberate indif-

ference to the needs of these young people.

FIRST CLAIM

30. The infliction of arbitrary, inhumane physical

brutality and punishment upon plaintiffs and other class

members constitutes cruel and unusual punishment and

deprives thern of their rights under the Eighth and Four-

teenth Amendments to the United States Constitution,

causing them irreparable injury.

A29

SECOND CLAIM

31. The denial of adequate education, treatment, and

recreation to plaintiffs and other class members deprives

them of their rights under the Eighth and Fourteenth

Amendments to the United States Constitution, causing

them irreparable injury.

THIRD CLAIM

32. Defendant Phillips tortiously assaulted plaintiff

Jonathan Hanna, proximately causing him injury.

FOURTH CLAIM

33. Defendants Toner, Wierzbinski, and Kelley, by

failing to establish and enforce rules of conduct for the

Detention Home, by acquiescing in and condoning the

pattern and practices of Detention Homie employees and

by failing to exercise in a proper manner their power to

select, hire, fire, train, supervise and control Detention

Home employees, have negligently breached a duty owed

to plaintiff Jonathan Hanna, proximately causing him in-

jury.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court:

1. Accept jurisdiction of this action;

2. Certify this action as a class action;

3. Enter a preliminary and permanent injunction re-

quiring defendants Toner, Wierzbinski and Kelley to:

a. Exercise their duties to select, hire, fire, train,

supervise and control Detention Home employees and to

set Detention Home policy so as to eliminate the use of

excessive force and the infliction of arbitrary, inhumane,

A30

physical brutality and punishment upon children confined

in the Detention Home.

b. Provide adequate education and recreation for

children confined in the Detention Home.

4. Award plaintiff Jonathan Hanna $50,000 in com-

pensatory damages and $100,000 in punitive damages

against defendants Phillips, Toner, Wierzbinski, and Kelley;

5. Award plaintiff Todd Hansen $50,000 in compen-

satory damages against defendants Toner, Wierzbinski,

and Kelley;

6. Award plaintiffs a reasonable attorney’s fee, and

costs and disbursements;

7. Enter such other and further relief as this Court

deems proper.

Respectfully submitted,

CAROLYN C. McTIGHE

CHARLES M. DELBAUM

K. D. Petrey

SHEILA TEW

C. LYONEL JONES

1223 West Sixth Street

Cleveland, Ohio 44113

687-1900

Marcaret L. TERRY

THomas W. WEEKS

3408 Lorain Avenue

Cleveland, Ohio 44113

961-6630

Attorneys for Plaintiffs