Petition for Writ of Certiorari — Irene Pernsley v. Martin Harris
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84-1958 er Ee
JUN 17 1985
ALEXANDER L STEVAS,
CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
IRENE PERNSLEY, et al
Petitioners
1
MARTIN HARRIS, et al
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
BARBARA W. MATHER
RICHARD J. GOLD
AUGUST V. SELLITTO
PHILADELPHIA CITY
SOLICITOR’S OFFICE
1520 Municipal Services Building
Philadelphia, Pennsylvania 19102
(215) 686-5260
Counsel of Record for Petitioners
PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000
QUESTION PRESENTED FOR REVIEW
Whether the Court of Appeals for the Third Circuit's
refusal to apply Younger v. Harris abstention conflicts
with this Court’s decisions when the federal plaintiff
class admits that they are plantiff class members in an
ongoing state court proceeding challenging the condi-
tions of confinement in the Philadeiphia Prisons on both
federal and state constitutional grounds and when such
state court action is presently pending in the Pennsyl-
vania Supreme Court
LIST OF ALL PARTIES
Petitioners IRENE PERNSLEY
ROYAL L. SIMS
REV. ALBERT CAMPBELL
LABORA BENNETT
JAMES BARBER
MARK MENDEL
DONALD PADOVA
DAVID S. OWENS
JOHN DAUGHEN
RODNEY D. JOHNSON
HON. WILLIAM J. GREEN
CITY OF PHILADELPHIA
JAY C. WALDMAN
RONALD J. MARKS
Respondents: MARTIN HARRIS
VK/A ARTHUR CARMICHAF]
ALBERT ANTHONY
ORLANDO X. MC CREA
ANDRE MOORE
FRANK L. HANSFORD. JR
l'YRONE GLENN
CARLOS ROYSTER
AMIN ABDULLAH
KHALID ALLAH MUHAMMAD
ARNOLD FURTICK
Co-Defendants Waldman and Marks shall be requesting Cer
ulorarl by a separate petition
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ....... i
LIST OF ALL PARTIES...........-----+--+++55: ii
TABLE OF CONTENTS .........---+--++ee+05: iii
rABLE OF AUTHORITIES ...........---+++-- . iv
CITATION TO OPINIONS BELOW........... ae
BUJMISDICTION .... 2. occ ccc ccc ccc creer ecceees 2
STATEMENT OF THE CASE ........----+-+++ 2
RIO 6 og oc cb csc usewnvsenceyehecoccccees 4
|. The Younger Doctrine of Abstention Applies To
Ongoing Civil State Court Proceedings If The
Subject Matter Involves An Important State In-
eee be She ee eevee cecsccecs 6
11. The Third Circuit Is Incorrect In Finding That
The Younger Doctrine Does Not Apply to Pri-
vately Initiated State Proceedings.........---- 16
el Ue ee ee 17
APPENDIX
Judgment of the District Court Entered Decem-
ees eegeeenees A-]
Order and Opinion of the Third Circuit Entered
February 22, 1985 Reversing The District
tke ween ceecsecesnees A-17
Order of the Third Circuit Entered March 21,
1985 Denying Petitioner's Request for a
a cae uwbedeee Ss cto esones A-47
iil
TABLE OF AUTHORITIES
Cases: Page
Blue Cross and Blue Shield of Michigan v.
Baerwaldt, 726 F.2d 296 (6th Cir. 1984) ..... 15
Central Avenue News Inc. v. The City of Minot.
North Dakota, 651 F.2d 565 (Sth Cir. 1981).. 15
Champion International Corporation v. Brown. 731
F.2d 1406 (9th Cir. 1984)...... sl ae a8 keke 15
Craig v. Barney, 678 F.2d 1200 (4th Cir. 1982)... 15
DeSpain v. Johnston, 731 F.2d 1171 (5th Cir.
| ry ay ee ee Pe es ee aoe
First National Bank and Trust Co. of Wyoming v.
Lawing, 731 F.2d 680 (10th Cir. 1984)....... 15
Gresham Park Community Organization v. Howell.
652 F.2d 1227 (5th Cir. 1981)............ 16, 17
Harris v. Pernsley, No. 82-1847, slip op. (E.D. Pa.
December 30, 1983)........................ 3
Harris v. Pernsley, No. 84-1039, slip op. (3d Cir.
February 22, 1985)....... 4, 5, 12, 13, 14, 15, 16
Harris v. Pernsley, Sur Petition for Rehearing, No.
84-1039, slip op. (3d Cir. March 21, 1985)... 4. 7.
18
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)... 5. 6.
7, 8,9
Jackson v. Hendrick, No. 2437, slip op. (C.P. Phila.
April 7, 1972)................ 2, 3, 10, 11, 13, 17
J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981). _. 15
Juidice v. Vail, 430 U.S. 327 (1977)............ 8, 16
Kenner v. Morris, 600 F.2d 22 (6th Cir. 1979). ... 17
Levy v. Lewis, 635 F.2d 960 (2d Cir. 1980)...._.. 15
iv
TABLE OF AUTHORITIES— Contin ued )
CASES: Page
Middlesex County Ethics Committee v. Garden
State Bar Association, 457 U.S. 423 | 1982). . 6, 9,
10, 15, 16
Moore v. Sims, 442 U.S. 415 (1979)...-.-. 6, 8, 9, 16
Parker v. Turner, 626 F.2d 1 (6h Cir. je 17
Pennhurst State Schoo! and Hospital v. Halderman,
U.S. ___, 104 $.Ct. Fe. | } See 12
Samuels v. Mackell, 401 U.S. 66 (1971)....-.---- <)
Sekerez v. Supreme Court of Indiana, 685 F.2d 202
‘iy, A ® A. >) eee eRe 15
Trainor v. Hernandez, 431 U.S. 434 | gs Se 8
\Inited Books, Inc. v. Conte, 739 F 9d 30 (Ist Cir.
7 peer revere rrr Tr Tre erie ec 15
Williams v. Red Bank Board of Education, 662 F.2d
1008 (3d Cir. 1981).........-. eee ba tem OO
Youngberg v. Romeo, 457 U.S. 307 (1982). ney 12
Younger v. Harris, 401 U.S 37 (1971).. i, 3, 4, 5, 6, 7,
g§ 9 10, 13, 15, 16, 17
OTHER AUTHORITIES
L!) S. Const. amend. VIII > is
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
IRENE PERNSLEY, et al..
Petitioners
Uv.
MARTIN HARRIS, et al.,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
CITATIONS TO OPINIONS BELOW
The District Court for the Eastern District of Penn-
sylvania issued an unreported Memorandum and Order
on December 30, 1983 which is included in the Appen-
dix at page A-1. This order was appealed by Respondents
and was reversed by the Court of Appeals for the Third
Circuit in an Opinion filed on February 22, 1985 which
is included in the Appendix at page A-17. Petitioners re-
quested Rehearing and the Court of Appeals for the
Third Circuit denied Sur Petition for Rehearing in an
Opinion filed on March 21, 1985 which is included in the
Appendix at page A-47
2
JURISDICTION
The judgment order of the Court of Appeals for the
Third Circuit was entered on February 22, 1985 and the
order denying Petition for Rehearing was entered on
March 21, 1985. This Petition for a Writ of Certiorari was
filed within 90 days of the date of entry of the denial of
rehearing by the Court of Anpeals.
This Court’s jurisdiction is invoked pursuant to 28
U.S.C. §1254(1). Jurisdiction in the District Court was
based on 28 U.S.C. §1331 and jurisdiction in the Third
Circuit on 28 U.S.C. §1291.
STATEMENT OF THE CASE
Plaintiffs in this action are asking a federal district
court to duplicate on-going state court regulation of the
Philadelphia prison system. Despite the existence of
state court proceedings in Jackson v. Hendrick. an action
in which the federal plaintiff Harris admits he is a class
member, Harris has asked the federal courts to under-
take reform of the conditions of confinement in the Phil-
adelphia prisons. On behalf of the same class
represented in Jackson and all persons confined in the
Philadelphia prisons, he has asserted that overcrowded
conditions of confinement violate the Eighth Amend-
ment of the United States Constitution. The complaint
seeks extensive injunctive relief and monetary damages
for the individual inmates.
Exactly the same claims are presently before the
Pennsylvania courts in Jackson v. Hendrick.’ Jackson is
also a class action on behalf of all inmates in the Phila-
delphia prisons and the issue is whether the same Phil-
adelphia facilities are unconstitutionally overcrowded
under federal and state constitutional provisions. The
1. There is no claim for damages presently pending in Jackson
v. Hendrick, but there is also no bar to the assertion of such a claim
and indeed, requests for fines and damages have been made in the
recent past in Jackson
3
City officials charged with administering the Philadel-
phia prison system are defendants in both Harris and
Jackson.
In the fourteen year history of the Jackson case, the
state court has issued numerous remedial orders regard-
ing prison conditions. The three-judge trial court has or-
dered construction of new facilities which is presently
on-going. The state court continues to monitor renova-
tion construction and other prison conditions through
court hearings and reports by Petitioners and through a
prison master appointed by that court. The precise issue
of whether Pennsylvania law and constitutional precepts
require a “one-man, one-cell rule” is currently before the
Pennsylvania Supreme Court which has assumed ex-
traordinary plenary jurisdiction over the entire Jackson
case.
Despite the pendency of Jackson, in which the fed-
eral plaintiffs admit they are class members, they would
have the federal court undertake to duplicate this state
court regulation of the Philadelphia prisons.
The district court, recognizing the existence of a
substantial and ongoing state court proceeding involving
an important state interest, chose to abstain Harris
Pernsley, No. 82-1847, slip op. (E.D. Pa., December 30,
1983).
The Court of Appeals for the Third Circuit reversed
the District Court’s decision. In a single paragraph, the
majority discussed and dismissed the Petitioners’ con-
tention that the principles of abstention articulated in
Younger v. Harris, 401 U.S. 37 (1971) apply to the in-
stant matter. The court held that Younger did not apply
because:
‘(T}here are no state criminal pr-ceedings or nul-
sance proceedings antecedent to a criminal proceed-
ing involved here’. . . [and]
‘(W]here the pending state proceeding is a privately-
initiated one, the state’s interest in that proceeding is
not strong enough to merit Younger abstention. for it
is no greater than its interest in anv other litigation
that takes place in its courts’. [citations omitted
Harris v. Pernsley, No. 84-1039 slip op. at 13 (3d Cin
February 22, 1985). Judge Garth filed a forc eful dissent
Petitioners filed a Petition for Rehearing which was
denied by a sharply divided court Judges Adams
Hunter, Weis, Garth and Becker dissented from the de
nial. Judge Garth once again filed a dissenting opinion
and Judge Adams dissented from the denial because
Iihis case raises important questions regarding the
scope of the Younger abstention doctrine. and because it
appears that the state court proceedings involving the
Philadelphia County prison system are being conducted
in good faith and with due haste.” Harris 7 Pernsley
Sur Petition for Rehearing, No. 84-1039 slip op. at 2 (3d
Cir., March 21, 1985)
lhe Third Circuit's application of the Younger doc-
trine ignores the teachings of this Court. It fails to e, en
discuss a decade of Supreme Court precedent regarding
Younger. Instead, the majority opinion summarily con-
cludes that Younger applies only if the state proceeding
is Criminal or quasi-criminal and only if that proceeding
is not privately initiated
Petitioners contend that the Court of Appeais for the
'hird Circuit erred in failing to find the You nger absten-
tion doctrine applicable to this case and that its opinion
is contrary to the decisions of this Court
ARGUMENT
In refusing to abstain from exercising jurisdiction,
the Court of Appeals for the Third Circuit ignores this
Court's precedent and sanctions an outdated and narrow
reading of Younger v. Harris. 401 U.S. 37 (1971). In
disposing of the Younger doctrine. the Circuit Court
stated
7.)
The [trial] court also considered whether it should
decline to exercise jurisdiction on the ground that it
would be called on to restrain the enforcement of a
state court proceeding in which the state had a sig-
nificant law enforcement interest. See Huffman
Pursue. Ltd.. 420 U.S. 592 (1975); Younger %
Harris . 401 U.S. 37 (1971). Noting that “|t|}here are
no state criminal proceedings or nuisance proceed-
ings antecedent to a criminal proceeding involved
here.” App. 15, it declined to dismiss on the authority
of Younger v. Harris. The trial court’s holding in this
respect complies with the consistent holdings of this
court that “where the pending state proceeding is a
privately-initiated one, the state's interest in that
proceeding is not strong enough to merit Younger
abstention. for it is no greater than its interest in any
other litigation that takes place in its courts.”
[citations omitted] Since the municipal and state of-
ficials are defendants in the state proceeding resist
ing the enforcement of federal constitutional rights,
rather than plaintiffs or prosecutors seeking vindi-
cation of state law enforcement policies, the trial
court did not err in declining to dismiss on the au-
thority of Younger v. Harris and its progeny
Harris v. Pernsley, No. 84-1039, slip op. at 12-13 (3d
Cir., February 22, 1985)
The above interpretation is contrary to the emerging
principles enunciated by this Court. The circuit court
majority's decision rests on two incorrect propositions:
that Younger is applicable only when there are pending
state criminal or quasi-criminal proceedings and that
Younger is applicable only when the state proceeding is
not privately initiated.
6
I. The Younger Doctrine Of Abstention Applies To Ongo-
ing Civil State Court Proceedings If The Subject Matter
Involves An Important State Interest.
While this Court initially applied the Younger doc-
trine of abstention to allow a federal court to abstain
when there was a pending state criminal proceeding.
this Court has enlarged its meaning and application far
beyond the realm of criminal or quasi-criminal proceed-
ings. “The policies underlying Younger are fully appli-
cable to noncriminal judicial proceedings when
important state interests are involved.” Middlesex
County Ethics Committee v. Garden State Bar Associa-
tion, 457 U.S. 423, 432 (1982), citing Moore v. Sims. 442
U.S. 415, 423 (1979); Huffman v. Pursue, Ltd.. 420 U.S
592, 604-605 (1975). In the present case, the continuing
state court proceedings deal with an important state in-
terest — the administration of a county prison system
These proceedings, while not criminal or quasi-criminal
in nature, fit well within the boundaries of the expanded
Younger doctrine.
Since Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).
this Court has found repeatedly that the linchpin of the
Younger doctrine lies in the concept of “comity,” and in
the instant case, “comity” demands federal court absten-
tion. Here, the state court has issued numerous and re-
cent remedial orders requiring Petitioners to take
extraordinary measures to alleviate prison overcrowding.
The trial court continues to actively supervise the reme-
dial process and the operation of all the Philadelphia Pris-
ons. As Judge Garth stated in dissent:
Thus, not only have the lower state courts in Penn-
sylvania been actively engaged in controlling and su-
pervising the prison population and _ prison
conditions of the Philadelphia County prisons, but it
now appears that effective November 21, 1984. the
Pennsylvania Supreme Court itself has taken over all
proceedings filed in such actions. More importantly,
the Pennsylvania Supreme Court has directed com
pliance with court orders concerning 1) construc
tion of new facilities, (2) population caps, (3) release
of prisoners, and (4) conditions of confinement in
cluding double and triple celling
lhese are the very issues involved in the federal
proceeding before us and unless abstention is
ordered. the overall state court review of the Phila
delphia County prisons will be subject to ¢ onflicting
and contrary determinations respecting each of
these vital state concerns. Accordingly, as a matter of
federal court policy, | suggest that the panel majority
has erred in its failure to acknowledge consider
ations of comity due the Commonwealth
Harris v. Pernsley, Sur Petition for Rehearing No
84-1039, slip op. at 4-5 (3d Cir., March 21, 1985
In Huffman v. Pursue, Ltd., 420 U.S. 592 1975),
this Court extended Younger abstention to a state court
proceeding on an Ohio civil nuisance statute
[Cjonsiderations of federalism counsel
heavily toward federal restraint, since interference
with a state judicial proceeding prevents the state
not only from effectuating its substantive policies,
but also from continuing to perform the separate
function of providing a forum competent to vindicate
any constitutional objections interposed against
those policies. Such interference also results in du-
plicative legal proceedings, and can readily be inter-
preted ‘as reflecting negatively upon the state court's
ability to enforce constitutional principles.’ [citation
omitted |
The component of Younger which rests upon
the threat to our federal system is thus applicable to
a civil proceeding such as this quite as much as it is
to a criminal proceeding.
Id. at 604
Juidice v. Vail, 430 U.S. 327 (1977) and Trainor 7
Hernandez, 431 U.S. 434 (1977) broadened further the
expansion of the Younger doctrine. J uidice was an appeal
by New York state court judges of a federal district court
order enjoining the continued operation of New York’s
statutory civil contempt proceedings. The state court ac-
tion was initiated by a private party. In reversing the dis-
trict court's order, this Court applied Younger despite the
presence of a privately initiated state suit:
We now hold that the principles of Younger and
Huffman are not confined solely to the types of state
actions which were sought to be enjoined in those
cases | T|he ‘more vital consideration’ behind the
Younger doctrine of nonintervention lay not in the
fact that a state criminal process was involved but
rather in ‘the notion of comity.’ |citations omitted |
Id. at 334. Trainor involved a state court civil action
brought to recover welfare payments that allegedly had
been fraudulently obtained. The state court issued a writ
of attachment against the appellees who in turn filed a
federal suit alleging that the attachment was unconsti-
tutional. This Court characterized the state court action
as involving “important state policies such as safeguard-
ing the fiscal integrity of [welfare] programs,” and held
that “the principles of Younger and Huffman are broad
enough to apply to interference by a federal court with an
ongoing civil enforcement action .. .” Id. at 444.
Moore v. Sims, 442 U.S. 415 (1979) similarly broad-
ened the application of Younger abstention to a child
abuse proceeding, initiated in state court, the result of
which was to transfer temporary legal custody of several
minors to the Texas Department of Human Services
The parents of the minor children, with state court pro-
ceedings pending, filed a federal court action alleging
Y
that the Texas Family Code “unconstitutionally
infringe|d] upon family integrity.” Id. at 419 This Court
found abstention appropriate
The Younger doctrine, which counsels federal-court
abstention when there is a pending state proceeding
reflects a strong policy against federal intervention
in state judicial processes in the absence of great and
immediate irreparable injury to the federal plainuft
Samuels v. Mackell, 401 U.S. 66, 69, 27 L.Ed 2d 688,
91 S. Ct. 764 (1971). That policy was first articulated
with reference to state criminal proceedings, but as
we recognized in Huffman v. Pursue, Ltd., 420 U.S
592. 43 L.Ed 2d 482, 95 S. Ct. 1200 (1975), the basic
concern — that threat to our federal system posed by
displacement of state courts by those of the National
Government — is also fully applicable to civil pro-
ceedings in which important state interests are In-
volved.
Id. at 423.
This Court's most recent pronouncement regarding
the parameters of the Younger abstention doctrine was
prompted by the Third Circuit's refusal to apply Younger
abstention principles to a state bar disciplinary
proceeding? Middlesex County Ethics Committee (
Garden State Bar Association, 457 U.S. 423 (1982). In
Middlesex County, this Court unequivocally stated its
sentiment regarding the purpose of the Younger doc-
trine:
Younger v. Harris . . . and its progeny espouse a
strong federal-policy against federal-court interfer-
ence with pending state judicial proceedings absent
extraordinary circumstances. The policies underly-
ing Younger abstention have been frequently reiter-
29 The Circuit Court held Younger inapplicable because it con
cluded that there was no opportunity to raise federal claims in the
state forum.
10
ated by this Court. The notion of “comity” includes
a proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union
of separate state governments, and a continuance of
the belief that the National Government will fare
best if the States and their institutions are left free to
perform their separate functions in their separate
ways, quoting Younger v. Harris, 401 US. at 44
Id at 431. While once again emphasizing that abstention
is no longer restrained by the notion that state criminal
proceedings are somehow more sacrosanct than other
judicial proceedings, this Court articulated the following
test for the application of Younger abstention
Fljirst is there] an ongoing state judicial
proceding; second, do the proceedings implicate im-
portant state interests; and third, is there an ade
quate opportunity in the state proceedings to raise
constitutional challenges
ld at 432. Applying the test, this Court found You nger to
be applicable:“The State of New Jersey has an extremel
important interest in maintaining and assuring the pro-
fessional conduct of the attorneys it licenses.” Id at 434
Had the Court of Appeals correctly applied the
Middlesex County test to this case. it would have found
against federal intervention. First. Jackson irrefutably
involves an “ongoing state judicial proceeding.” The
State trial court continues to exercise jurisdiction over
the activities of the Petitioners with the use of a full-time.
court-appointed Prison Master, continues to hold com-
pliance hearings, and continues to issue remedial orders
Initially, Jackson resulted in a 172 page opinion in
which the trial court found the county prison conditions
of confinement to be unconstitutional. Jackson :
Hendrick, No. 2437, slip. op. (C.P. Phila. April 7, 1972)
1]
The three-judge state court panel retained jurisdiction
over the remedial process and appointed a Prison Master
to oversee the reformation of the prison system.
Numerous remedial orders and consent decrees fol-
lowed. In recent years, the state court’s remedial inter-
vention has been particularly more frequent and
noticeably more far-reaching:
1. On April 23, 1984, the Jackson court ordered an
emergency release program and an expanded program of
bail review hearings to expedite the release of detainees
who do not pose a threat to the community. That same
order required the City to construct two new prison fa-
cilities. adding more than 1000 cells in 1986 and 1987.
Respondents are currently constructing a 650 cell facil-
itv and a center city criminal justice facility, including a
holding facility with a capacity for at least 440 cells.
2 On June 22, 1984, the Jackson court imposed pop-
ulation caps on the existing Philadelphia prisons, effec-
tive October, 1984, to decrease the prison population
from 3600 to 2700 inmates.
3 On October 11, 1984, after finding that the City
was in contempt because the population exceeded the
court-ordered cap, the state court fined the City in excess
of $200,000 per month. In addition, the state court re-
leased approximately $300,000 in previously collected
fines from the City and established a committee to dis-
tribute these funds.
The City appealed the June 22, 1984 and the Octo-
ber 11. 1984 Orders. On October 17, 1984, the Chief
Justice of the Pennsylvania Supreme Court issued a stay
of these Orders pending their appeals. On November 22,
1984. the Pennsylvania Supreme Court assumed plenary
jurisdiction of the appeals at the request of the City. The
Supreme Court also agreed to consider the legality of the
“one man, one cell” prisoner housing rule which under-
lies all of the Jackson court’s orders. Petitioner is await-
ing a decision from the highest court in the state
12
regarding the underlying merits of the entire state court
case.
Second, the state proceeding involves an important
state interest. It implicates important state constitutional
issues as well as federal, and it deals with a critical func-
tion of state government. As Judge Garth stated:
I can think of no more weighty, vital or intimate
State interests than the administration of a state’s pe-
nological system. Indeed, the Supreme Court has
given the federal courts unambiguous instructions
to pay great deference to the States’ weighty interest
in administering their own prison systems. . .
Harris v. Pernsley, No. 84-1039, slip op. at 22-23 (3d
Cir., February 22, 1985). Judge Garth went on to note:
[ do not believe that Supreme Court teachings, co-
mity, or reason support a federal court’s intrusion
into a state’s administration of its prison system
when the state courts have been, and presently are,
exercising supervision over these institutions and
are doing so in accordance with state and federal
constitutional requirements.
The pleadings clearly reveal that since March
15, 1976, the Court of Common Pleas has not only
imposed corrective measures on the Common-
wealth’s prison administration, but has done so con-
tinuously through various consent decrees. As
recently as June 22, 1984, additional orders have
been entered by the state courts. For a federal court
to step in and ignore the state’s own corrective pro-
ceedings is, so far as I am concerned, as inappropri-
ate and wrong as it is for a federal court to run state
hospitals, see Pennhurst State School and Hospital
v. Halderman, U.S.____, 104 S. Ct. 908 (1984),
Youngberg v. Romeo, 457 U.S. 307 (1982). or
schools, see Williams v. Red Bank Board of Educa-
tion, 662 F.2d 1008, (3d Cir. 1981). This is so par-
13
ticularly where the state cour.s orders have been
strictly enforcing federal constitutional mandates.*
Id. at 18-19
Finally, had the lower court inquired, it would have
found that the Respondents have had, and continue to
have, the opportunity to raise constitutional challenges
in the state court as part of the Jackson plaintiff class.
The Jackson record is replete with instances in which
such issues were adjudicated. First, in the initial 172
page Jackson trial opinion, the court discussed, at
length, the Respondents’ contention that the conditions
of confinement violated the Eighth Amendment to the
United States Constitution. Second, Respondents have
had the opportunity to raise federal claims at each com-
pliance hearing, and they continue to possess the right to
petition the Jackson court for further compliance hear-
ings if they believe that their federal rights are being im-
paired in any way. Finally, the Jackson court has even
afforded the Respondents an additional forum in which
to raise such concerns: Respondents may report any
transgressions to the court-appointed Prison Master. Re-
spondents have vigourously exercised their opportunity
to present federal claims in the state court proceeding
3 In Williams v. Red Bank Board of Education, 662 F.2d 1008
3d Cir. 1981), the Third Circuit held that school disciplinary pro
ceedings embodied a weighty state interest and that the potential
disruption of those proceedings warranted Younger abstention. In
the instant case, the majority virtually ignores tne precedential
value of Williams. Instead, the opinion cites Williams as standing for
the proposition that privately initiated state proceedings cannot in
volve weighty state interests. However, the majority opinion in Wil
liams specifically states that the administrative proceeding was not
privately initiated. Id at 1019. Therefore, as Judge Garth's dissents
propose, abstention is proper, and at a minimum, the federal court
action should be placed in inactive status pending resolution of the
state court proceeding. Thus, the majority decision in this action
contradicts its own circuit's precedent
14
and as a result, the City of Philadelphia is currently con-
structing two new correctional facilities. As Judge Garth
points out in his dissent in Harris:
In the present case, the courts of Pennsylvania
have been overseeing the remedies directed to par-
ticular prison conditions and have been issuing re-
medial orders since at least March 15, 1976. They
have done so after consideration of prison conditions
which were alleged to violate both federal and Penn-
sylvania constitutions. Thus, the Pennsylvania
courts have not only been aware of, but have sought
to vindicate, federal concerns. Indeed, the complaint
recites that a total of $325,000 in fines has been lev-
ied by the court for failure to comply with various
corrective provisions of the consent decrees which
had been entered. The complaint further recites that
there have been four additional consent decrees that
have been approved by the Court of Common Pleas
as late as December 21, 1982. Moreover, as recently
as June 29, 1983 — more than one year after the
present federal action was commenced — the state
court entered still another order establishing a plan
of prison release to relieve overcrowding. That order
was followed by still additional orders entered by the
state courts as late as June 22, 1984.
Harris v. Pernsley, No. 84-1039, slip op. at 24 (3d Cir..
February 22, 1985).4
4. Respondents also argue, and the circuit majority found per-
suasive, that the plaintiffs herein are asking for monetary damages
for their prison confinement which the state court has never or-
dered. Petitioners disagree on two basis: first, Petitioners agree with
Judge Garth that the request for money damages “. . . is by far the
most insignificant element of the plaintiffs’ charge. What the plain-
tiffs seek here is pure and simple equitable relief and they seek it on
federal constitutional grounds. The money damages, as I read the
Complaint, are incidental.” Id. at 27. Second, as Judge Garth noted
in a footnote, Respondents have continued to request monetary
15
Even beyond the Middlesex analvsis, this case rep-
resents a critical application of the comity concepts in-
tegral to Younger abstention. Here the local authoriues
are faced not only with federal usurpation of a critical
state interest in prison regulation but also with the very
real prospect of inconsistent regulatory comments from
state and federal courts. If comity has any purpose it is
that active state court regulation should not be subject to
review and revision by individual federal judges. The
Court of Appeals decision permits such review and revi-
sion
This Court has found Younger abstention applicable
to pending civil proceedings.® The doctrine is no longer
damages from Petitioners in the state court proceeding. The state
court has entertained the consideration of such requests but have
denied them. Id. at 28, n. 4
5. Virtually every other Court of Appeals has correctly inter
preted this Court's expansion of the Younger doctrine to civil pro
ceedings. For instance, in Blue Cross and Blue Shield of Michigan
». Baerwaldt. 726 F.2d 296 (6th Cir. 1984) the Michigan Commis
sioner of Insurance ordered an insurer to cease publishing certain
advertisements. The insurer appealed that order to the state court
and concurrently filed a 42 U.S.C. §1983 suit in federal court. The
Court of Appeals for the Sixth Circuit, in affirming the trial court's
decision to abstain, stated
Younger abstention, born in a criminal context, is now “fully
applicable to noncriminal judicial proceedings when important
state interests are involved” |citations omitted} The regula
tion of insurance companies clearly involves important state in-
terests
Id. at 299. See United Books, Inc. v. Conte, 739 F.2d 30 (1st Cir
1984): Levy v. Lewis, 635 F.2d 960 (24 Cir. 1980); Craig v. Barney,
678 F.2d 1200 (4th Cir. 1982); DeSpain v. Johnston, 731 F.2d 1171
(5th Cir. 1984); J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981);
Sekerez v. Supreme Court of Indiana, 685 F.2d 202 (7th Cir. 1982);
Central Avenue News Inc. v. The City of Minot, North Dakota, 651
F.2d 565 (8th Cir. 1981); Champion International Corporation %
Brown. 731 F.2d 1406 (9th Cir. 1984); First National Bank and
Trust Co. of Wyoming v. Lawing, 731 F.2d 680 (10th Cir. 1984). In
fact. the Third Circuit majority's decision in this action is contrary
16
limited by the facts of Younger and has emerged as the
guardian of our system of federalism. The Court of Ap-
peals for the Third Circuit failed to consider the decisions
expanding the Yuunger doctrine and did not address the
Middlesex County test. As Judge Garth stated in his dis-
sent:
The majority, in virtual defiance of Supreme
Court teachings that federal courts should not in
trude in vital state interests unless federal constitu-
tional concerns are being violated or ignored —
neither of which is the case here — has nevertheless
held that a federal court is to manage Philadelphia's
jails.
Harris v. Pernsley, No. 84-1039, slip op. at 17-18 (3d
Cir., February 22, 1985).
Il. The Third Circuit Is Incorrect In Finding That The
Younger Doctrine Dues Not Apply To Privately !niti-
ated State Proceedings.
In considering whether Younger abstention was ap-
propriate, the Court of Appeals presumed that, because
the state action was privately initiated, Younger was in-
applicable. See Harris v. Pernsley, No. 84-1039, slip op.
at 12-13 (3d Cir., February 22, 1985).
In Juidice, this Court applied Younger even though
that case was privately initiated. See Moore v. Sims, 442
U.S. 415 (1979). In addition, those circuit courts which
have addressed this issue have found Younger absten-
tion to be appropriate despite the existence of a privately
initiated state suit. See Gresham Park Community Or-
ganization v. Howell, 652 F.2d 1227 (5th Cir. 1981) (ab-
stention in favor of a private action by a store owner to
prevent picketing with the following observation: “|Wle
NOTES (Continued)
to its own decision regarding the application of the abstention doc-
trine. See Williams v. Red Bank Board of Education, 662 F.2d 1008
(3d Cir. 1981).
17
find no reason for limiting Younger to state initiated state
suits.” Id. at 1247-48): Kenner v. Morris, 600 F.2d 22
6th Cir. 1979) (abstention in favor of a divorce proceed-
ing because such proceedings were traditionally of deep
state concern and should not be invaded by federal in-
tervenvuion Accord. Parker v. Turner, 626 F.2d 1 (6th
Cir. 1980
Moreover, Jackson is not a simple private action. It is
a class action in which the three-judge trial state court
and prison master have actively supervised implemen-
tation of orders which directly address the constitutional
issues raised in Harris. Those same constitutional issues
are the basis for the claims raised in Jackson. Therefore
the Third Circuit's refusal to consider abstention in the
presence of a private suit directly conflicts with the de
cisions of this Court and purposely disregards the
“public” nature of the pending state court proceedings in
lackson
CONCLUSION
[The Third Circuit's treatment of Younger is in con-
flict with the teachings of this Court. The on-going state
court proceedings involve a vital state interest — the ad-
ministration of a county correctional system. Any intru-
sion upon those proceedings would engender conflict
and offend our system of federalism. As Judge Garth
noted
Under these circumstances, I ask the question
that the majority has never sought to answer — what
more, consistent with Supreme Court precedent and
directives, should, or could, a federal district court
do, to accomplish what is presently underway in the
Philadelphia court system? .. .
Indeed, in light of the current posture of the or-
ders which have been entered by the Pennsylvania
courts ... what actioms could a federal district court
18
judge possibly take (a) without upsetting and de-
stroying a viable program designed by the state
courts to correct the Philadelphia prison conditions
and (b) without trespassing on state court directives
that are presently in place and in effect.
Harris v. Pernsley, Sur Petition for Reconsideration, No
84-1039, slip op. at 6-7 (3d Cir., March 21, 1985)
For all of the foregoing reasons, this Court should
grant the instant Petition for a Writ of Certiorari
Respectfully submitted,
BARBARA W. MATHER
City Solicitor
Cie \ <b)
ED,
RICHARD J. GOLD
Divisional Deputy City Solicitor
AUGUST V. SELLITTO
Chief Assistant City Solicitor
City Solicitor’s Office
1520 Municipal Services Building
Philadelphia, Pennsylvania 19102
(215) 686-5260
Attorneys for Petitioners
DATED: June 14. 1985
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS
a/k/a ARTHUR CARMICHAEL
Prison Number 80-16203
ALBERT ANTHONY - #81-16129
ORLANDO X. McCREA - #81-14560
ANDRE MOORE - #4T-3223
FRANK L. HANSFORD, JR. -
#T-3219 T-3765
TYRONE GLENN - #80-11017
CARLOS ROYSTER - #81-13076
AMIN ABDULLAH - #82-00012
KHALID ALLAH MUHAMMAD -
#80-08 190
ARNOLD FURTICK - #80-16429
on behalf of themselves and all other
persons similarly situated
\
IRENE PERNSLEY, individually and in
her official capacity as Welfare
Commissioner of the City
of Philadelphia,
ROYAL L. SIMS, REV. ALBERT
CAMPBELL, LABORA BENNETT,
JAMES BARBER, MARK MENDEL.
DONALD PADOVA, each individually
and in his or her official capacity as a
member of the Board of Trustees of the
Philadelphia Prison System,
DAVID S. OWENS, individually and in
his official capacity as Superintendent of
the Philadelphia Prison System.
JOHN DAUGHEN, individually and in
his official capacity as Warden of
Holmesburg Prison,
A-1
CIVIL ACTION
RODNEY D. JOHNSON. individually
and in his official capacity as Managing
Director of the City of Philadelphia
HON. WILLIAM J. GREEN. individually
and in his official capacity as Mayor of the
City of Philadelphia
CITY OF PHILADELPHIA
JAY C. WALDMAN, individually and in
his official capacity as General Counsel for
the Commonwealth of Pennsylvania. and
RONALD J. MARKS. individually and in NO. 82-1847
his official capacity as Commissioner of
the Pennsylvania Bureau of Corrections
MEMORANDUM and ORDER
NORMA L. SHAPIRO, J DECEMBER 30, 1983
A-3
INTRODUCTION
Plaintiffs, when inmates at Holmesburg Prison
(“Hiolmesburg”) in Philadelphia, Pennsylvania, brought
this action pro se on behalf of a class of present and fu-
ture inmates to attack the constitutionality of conditions
of confinement at Holmesburg. Following the appoint-
ment of counsel, plaintiffs moved for a determination
that the action could be maintained as a class action
Plaintiffs then filed an Amended Complaint adding as
defendants the Commissioner of Pennsylvania Bureau of
Corrections (Ronald J. Marks) and General Counsel of
the Commonwealth of Pennsylvania (Jay C. Waldman)
All defendants filed motions to dismiss; upon oral argu-
ment, the court gave leave to file supplemental briefs on
any issue including whether Edward A. Aguilar, Es-
quire, the court-appointed Master in Jackson 1
Hendricks, Court of Common Pleas of Philadelphia
County, February Term, 1971, No. 2437, and/or David
Rudovsky, counsel for the plaintiffs in Jackson, should
be joined as parties in this case. Messrs. Aguilar and
Rudovsky both filed statements opposing their joinder
The action will now be dismissed for reasons set forth
herein
FACTS
In February, 1971, five inmates of the Philadelphia
prison system brought a class action in equity in the
Court of Common Pleas of Philadelphia County, Penn-
sylvania, that attacked the constitutionality of their con-
ditions of confinement and requested injunctive relief
against prison and City officials, and the City of Phila-
delphia. On April 7, 1972, a three-judge court in a 264
page Opinion heid that conditions in the Philadelphia
County prisons violated the rights of inmates under, in-
ter alia, the United States and Pennsylvania Constitu-
tions; the decree nisi appointed a Prison Master to
administer the court's corrective decree. On June 7,
A-4
1972, the decree became final; it was later affirmed by
the Pennsylvania Supreme Court, Jackson v. Hendricks.
457 Pa. 405, 321 A.2d 603 (1974). The state court re-
tained jurisdiction over the parties and the action and
has since issued remedial orders, including an order es-
tablishing 2 maximum inmate capacity for the Philadel-
phia prison, and approved consent decrees entered into
by the parties. The court issued its latest order regarding
a program of early release for sentenced prisoners on
September 9, 1983
Plaintiffs contend that, notwithstanding the state
court's remedial measures, unconstitutional conditions
continue at Holmesburg. They bring the present action
under 42 U.S.C. §1983 for deprivation, under color of
state law, of rights and immunities guaranteed by the
Cons:itution of the United States. Plaintiffs allege: chat
the defendants have acted or failed to act in ways that do
not correct and exacerbate the unconstitutional condi-
tions at Holmesburg; that the defendant City of Phila-
delphia has failed to honor the terms of various consent
decrees in Jackson and has deprived the plaintiffs of lib-
erty interests without due process of law: and that de-
fendants Waldman and Marks have deprived plaintiffs of
rights guaranteed by the Eighth and Fourteenth Amend-
ments by permitting the Philadelphia County prisons to
receive prisoners sentenced to terms of more than six
months but less than five years notwithstanding current
conditions at Holmesburg. Plaintiffs request both in-
junctive and monetary relief on behalf of a class of
present and future inmates
Che City defendants move to dismiss on grounds of
res judicata and comity because of the Jackson case. De-
tendants Waldman and Marks move to dismiss not only
on grounds of res judicata and comity but also because
the action is barred by the Eleventh Amendment and the
complaint is lacking in specificity. Marks further asserts
A-5
that he is immune from liability for money damages and
that the claims for injunctive relief on behalf of plaintiffs
no longer confined at Holmesburg are moot.
RES JUDICATA
[he doctrine of res judicata provides that “a final
sudement on the merits of an action precludes the par-
ties or their privies from relitigating issues that were or
could have been raised in that action.” Kremer v. Chem-
ical Construction Corp., 456 U.S. 461, 467 n.6 (1982).
See also, Allen v. McCurry, 449 U.S. 90, 94-95 (1980)
res judicata bars relitigation of issues that were or could
have been raised in a prior action). “[R]es judicata ap-
plies to repetitious suits involving the same cause of
action.” Commissioner v. Sunnen, 333 U.S. 591, 597
1948)
Res judicata and collateral estoppel have developed
to prevent the repetitive judicial consideration of the
same issues. Under the doctrine of collateral estoppel, a
final judgment on the merits in a prior suit “precludes
relitigation [in a second suit] of issues actually litigated
and determined, regardless of whether it was based on
the same cause of action as the second suit,” Lawlor v.
National Screen Service Corp., 349 U.S. 322, 326
1955); the principle of res judicata bars a second suit on
a cause of action if there has been final a judgment on
the merits in a prior lawsuit between the same parties on
their privies. Id. The parties are bound as to all matters,
fact and law, that were or might have been adjudicated
in the prior action. Morris v. Jones, 329 U.S 545 (1947).
But res judicata applies only if there were an indentity of
parties and indentity of issues in the prior action.
Plaintiffs, present or recent inmates of Holmesburg
prison, are members of the class certified in Jackson.
The putative class here consists of “all persons who have
been inmates of Holmesburg prison since April 30, 1980,
and _all future inmates of Holmesburg prison.” Jack-
A-6
son was brought on behalf of plaintiffs therein and “all
others confined in Philadelphia prisons,” Jackson, supra,
457 Pa. 405, 406, 321 A.2d 603, 604 (1974). The Jackson
court has retained jurisdiction and continues to issue re-
medial orders regarding conditions in the Philadelphia
prison system; its decrees apply not only to those indi-
viduals who were inmates at the time it rendered its
judgment on the merits but also to all current inmates of
the Philadelphia prisons. !
The named plaintiffs here were not named plaintiffs
in Jackson, but they were and are members of the Jack-
son Class. Plaintiffs admit in their Amended Complaint
that, “the plaintiff class in Jackson v. Hendrick. . . in-
cludes the entire plaintiff class herein.” (450). Members
of a class as well as the named representatives are pre-
cluded from relitigating the same action, or any issues
that were or could have been raised therein, in a different
court on behalf of themselves, the same class as in the
intitial action, or a new class. Hansberry v. Lee, 311 U.S.
32 (1940); Giordano v. Radio Corp. of America, 183 F.2d
558 (3d Cir. 1950).
Res judicata bars this action by members of the
Jackson class because they also raise issues which were
or could have been raised in Jackson. Kremer, supra at
271 n.6. This suit arises out of alleged unconstitutional
conditions in the Holmesburg prison, the subject matter
of Jackson, and seeks the same relief as that in Jackson.2
1. The Jackson court asserted jurisdiction over inmates cur
rently incarcerated in the Philadelphia prisons as recently as June
29, 1983 (ordering, among other things, the parole of those persons
sentenced to a minimum of less than one year in the Philadelphia
prisons as of August 1, 1983)
2. Plaintiffs do seek monetary, in addition to injunctive, relief
To that extent, the relief sought is different from the declaratory and
injunctive relief sought in Jackson. Res judicata precludes plaintiffs
from raising any claim which was or could have been raised in a
prior case, Kremer, supra, at 467 n.6; Brown v. Felser, 442 U.S. 127,
;
:
:
A-7
See, Williamson v. Columbia Gas & Electric Corp., 186
F.2d 464, 470 (3d Cir. 1950). Plaintiffs admit that the
subject matter of this action and Jacksn are identical.
Memorandum of Plaintiffs in Oppos . to Motions to
Dismiss Amended Complaint; at 13.
However, plaintiffs contend that the unconstitu-
tional conditions at Holmesburg constitute a continuing
cause of wrongful conduct giving rise to more than one
cause of action. But the Jackson court has retained ju-
risdiction to deal with continuing conditions of confine-
ment of the present and future inmates who are
members of this plaintiff class. The matters which were
litigated or could have been litigated in Jackson cannot
be relitigated here; the Jackson court's retention of ju-
risdiction over current inmates is a bar to this action.
Plaintiffs do not actually seek to relitigate the factual
determinations and legal conclusions of Jackson; they
seek the relief to which Jackson entitles them but which
they claim has not been promptly provided. Plaintiffs in
effect petition this court to enforce the Jackson orders
and consent degrees with more deliberate speed. How-
ever, the jurisdiction of this court cannot be invoked to
modify or enforce orders of a state court, especially
where that court has retained jurisiction over the parties
and cause of action. Plaintiffs must petition the Jackson
court to enforce its decision or punish any contempt of its
decrees.
If this were a new cause of action, a “continuing
wrong,” as alleged, the question whether unconstitu-
tional conditions continue at Holmesburg would have to
be litigaged. If Jackson has not decided the issue pre-
sented by plaintiffs, plaintiffs would be unable to rely on
the Jackson decision as having determined liability. This
court would be obligated to ascertain whether, in light of
131 (1979). Plaintiffs’ claim for monetary damages could have been
raised in the prior action so that the difference in the relief sought
does not preclude the defense of res judicata.
A-8
other current authority, unconstitutional conditions now
prevail at Holmesburg; it could not rely on Jackson as
having already made that determination for this court.
See, Union County Jail Inmates, et al. v. DiBuono, et al..
713 F.2d 984 (3d Cir. 1983). See also, Rhodes v. Chap-
man, 452 U.S. 337 (1981) and Bell v. Wolfish, 441 U.S.
920 (1979). Cf. Memorandum of Plaintiffs in Opposition
to Motion to Dismiss Amended Complaint, p. 13.
Res judicata binds both parties and may be invoked
by either to prevent relitigation of the same action. The
doctrine of res judicata “rests upon considerations of
economy of judicial time and public policy favoring the
establishment of certainty in legal relationships.” Sun-
nen, supra at 597. The rule is intended to prevent need-
less and duplicative litigation, conserve judicial
resources and encourage reliance on adjudication by
preventing inconsistent decisions. Allen, supra at 94.
These considerations are implicated even when it is as-
serted by the party that did not prevail but was held liable
in the prior proceeding. Therefore, res judicata bars
plaintiffs’ action against the City defendants. parties or
privies to parties in the Jackson case.
ABSTENTION/COMITY
Because there are substantial and continuing state
proceedings in this case, the exercise of federal jurisdic-
tion would not be appropriate whether or not the decision
in Jackson in res judicata. The doctrine of abstention
permits a federal court in its discretion to decline or post-
pone the exercise of its jurisdiction. It has been limited
by the Supreme Court to three general categories. Col-
orado River Water Conservation District v. United
States, 424 U.S. 800, 814-817 (1976),
First, “|a]bstention is appropriate ‘in cases present-
ing a federal constitutional issue which might be mooted
or presented in a different posture by a state court de-
termination of pertinent state law.’” Id. at 814 (citation
A-9
omitted). This is known as “Pullman abstention.” See,
Railroad Commission of Texas v. Pullman Co., 312 U.S.
496 (1941). Second, abstention is appropriate where the
exercise of federal jurisdiction would substantially inter-
fere with state regulation of matters of significant im-
portance to the state. See, Buford v. Sun Oil Co., 319 U.S.
315 (1943); Balti:snore Bank for Cooperatives v. Farmers
Cheese Cooperative, 583 F.2d 104 (1978). Finally, ab-
stention is appropriate where, absent bad faith, harass-
ment, or a patently invalid state statute, federal
jurisdiction is sought to restrain state criminal proceed-
ings. See, Huffman v. Pursue, Ltd., 420 U.S. 592 (1975);
Younger v. Harris, 401 U.S. 37 (1971).
The present case does not fall within any of these
categories. Although a federal constitutional issue is pre-
sented for decision, there is no pertinent state law which
would preclude the need to decide the constitutional is-
sue. The administration of the state prison system is a
matter of significant importance to the state* but there
are no state claims made in this case; the court action in
Jackson was premised on federal not state constitutional
rights. There are no state criminal proceedings or nui-
sance proceedings antecedent to a criminal proceeding
involved here. Therefore, a stay or dismissal cannot be
supported under any of the traditional formulations of
the abstention doctrine.
However, the Supreme Court has also recognized a
fourth category of cases in which federal courts may de-
cline to exercise their jurisdiction. While not denominat-
3. This has been recognized by Congress in the Civil Rights of
Institutionalized Persons Act which provides that if the Attorney
General has certified that there are state administrative remedies for
prisoner grievances in substantial compliance with minimal accept-
able standards promulgated in accordance with the Act, the district
court shall, if it believes that such a requirement would be appro-
priate and in the interests of justice, continue cases for a period not
to exceed ninety days in order to require exhaustion of such plain,
speedy, and effective administrative remedies as are available. 42
U.S.C. §1997e(a\(1)
A-10
ing it “abstention,” the Court has stated that, “there are
principles unrelated to considerations of proper consti-
tutional adjudication and regard for federal-state rela-
tions which govern in situations involving the
contemporaneous exercise of concurrent jurisdictions,
either by federal courts or by state and federal courts.
These principles rest on considerations of ‘{[w}ise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.’ ”
Colorado River, supra at 817 (citation omitted). Al-
though “the circumstances that justify dismissal of a fed-
eral suit because of the presence of a concurrent state
proceeding for reasons of wise judicial administration”
are limited because of the “virtually unflagging obliga-
tion of the federal courts to exercise the jurisdiction
given them .. ., |such] circumstances ... do neverthe-
less exist.” Id. at 817-818.
The decision whether to defer to “the concurrent ju-
risdiction of the state court is committed to the court’s
discretion. Will v. Calvert Fire Insurance Co., 437 U.S.
655 (1978); Bullhart v. Excess Insurance Co., 316 U.S.
491 (1942). In assessing the appropriateness of dis-
missal in the event of an exercise of concurrent
jurisdiciton, a federal court may consider such factors as
the inconvenience of the federal forum, the desirability
of avoiding piecemeal litigation, and the order in which
jurisdiction was asserted. “|N]o one factor is necessarily
determinative; a carefully considered judgment taking
into account both the obligation to exercise jurisdiction
and the combination of factors counselling against that
exercise is required.” Colorado River. supra at 818-819.
In Colorado River, the United States brought an ac-
tion in federal court for a declaration of the government's
rights to Colorado River water. The United States was
subsequently made a party to state court proceedings
which would adjudicate all the claims -brought by the
government in the federal action. The district court then
dismissed the case because of the pendency of the state
A-11
proceedings. The Supreme Court determined that the
dismissal could not be supported under abstention doc-
trines formulated at that time but nevertheless affirmed
dismissal for reasons of wise judicial administration in
view of the pendency of the state proceedings. The Court
found that the McCarran Amendment, 43 U.S.C. §666,
an expression of congressional policy favoring resolution
of federal water claims in state courts, counselled against
the exercise of federal jurisdiction. The Court also found
significant that the proceeding in the federal court was
in its initial stages;* there was a 300-mile distance be-
tween the state and federal court; the federal action
would occasion extensive involvement in state water
rights; and the government had participated in similar
state proceedings in previous instances.
In this case, several factors likewise counsel against
exercise of jurisdiction. First, the state court, which ex-
ercised jurisdiction prior to this court, has rendered a
final judgment declaring conditions in the Philadelphia
prison system unconstitutional. There have been no
pruceedings of substance in this court.“ The constitu-
tionality of conditions at Holmesburg would have to be
relitigated if this court were to exercise jurisdiction; such
action might result in a decision contrary to that ren-
dered in Jackson. Interests of comity are implicated be-
cause this action would result in duplicative litigation
and create the possibility of conflict with regard to
defendants’ legal duties. The Jackson court has retained
jurisdiction over the parties and the cause of action and
has continued to issue remedial orders. Any action by
4. Only a complaint and motion to dismiss had been filed in the
federal action. 424 U.S. at 820, and n.25
5. The state court's remedial orders of this year reaffirm that
court’s determination that current conditions in the Philadelphia
prison system require continuing Court intervention
6. The only actions taken have been the filing of the complaint
(subsequently amended), and plaintiff's motion for class certifica
tion, the mections to dismiss, and argument thereon
A-12
this court would necessarily conflict with the state
court’s ongoing remedial process, and would disregard
considerations of comity and harm our federalism.
While the court is mindful of the obligation of a fed-
eral court to exercise the jurisdiciton given it, there are
“exceptional circumstances” here that justify dismissal.
See, Colorado River, supra. Plaintiffs are not left without
protection by the dismissal of this suit. In view of the
extensive exercise of supervisory powers by the Jackson
court, this court cannot say that the constitutional inter-
ests of the inmates in the Philadelphia prisons, including
Holmesburg have not been or will not be protected by the
state courts. Acceptance of jurisdiction now, when there
is an active and ongoing state remedial process imple-
menting a final state court judgment, would not only
needlessly injure federal-state re)«ti:ons but would result
in wasteful, duplicative and piecemeai litigation. This
court's exercise of jurisdiction would not be in the inter-
ests of “wise judicial administration.”
Although defendants Waldman and Marks are not
parties to the Jackson case, and the action against them
was not and could not have been brought in Jackson, the
above discussion as to abstention and comity applies
equally to them. Plaintiffs claim that Waldman and
Marks have exacerbated the existing unconstitutional
conditions at Holmesburg by classifying Holmesburg el-
igible to receive persons sentenced to prison terms of not
less than six months and not more than five years. Plain-
tiffs seek damages and injunctive relief.
The claim for damages cannot survive a motion to
dismiss. The claims for damages against the state defen-
dants in their individual capacities do not contain alle-
gations of sufficient specificity to defeat their qualified
immunity as state officials with discretionary powers
See, Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1981)
The claim for damages against the state defendants in
their official capacities is barred by the Eleventh Amend-
ment. There is a justiciable claim for prospective injunc-
A-13
tive relief: if it were adjudicated by this court and
defendants were found liable, the relief sought would
conflict with the Jackson court's substantial and con
tinuing corrective orders to implement its prior decree
Ihis is not in the interests of federalism or the effective
administration of justice. The case will therefore be dis
missed in its entirety
An appropriate Order follows
A-14
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS CIVIL ACTION
a/k/a ARTHUR CARMICHAEL
Prison Number 80- 16203
ALBERT ANTHONY - #81-16129
ORLANDO X. McCREA - #81-14560
ANDRE MOORE - #T-3223
FRANK L. HANSFORD. JR. -
#T-3219 T-3765
TYRONE GLENN - #80-11017
CARLOS ROYSTER - #81-13076
AMIN ABDULLAH - #82-00012
KHALID ALLAH MUHAMMAD -
#80-08 190
ARNOLD FURTICK - #80-16429
on behalf of themselves and all other
persons similarly situated
V
IRENE PERNSLEY, individually and in
her official capacity as Welfare
Commissioner of the City
of Philadelphia.
ROYAL L. SIMS, REV. ALBERT
CAMPBELL, LABORA BENNETT,
JAMES BARBER, MARK MENDEL.
DONALD PADOVA, each individually
and in his or her official capacity as a
member of the Board of Trustees of the
Philadelphia Prison System,
DAVID S. OWENS, individually and in
his official capacity as Superintendent of
the Philadelphia Prison System.
JOHN DAUGHEN. individually and in
his official capacity as Warden of
Holmesburg Prison.
A-15
RODNEY D. JOHNSON, individually
and in his official capacity as Managing
Director of the City of Philadelphia
HON. WILLIAM J. GREEN, individually
and in his official capacity as Mavor of the
City of Philadelphia
CITY OF PHILADELPHIA
JAY C. WALDMAN, individually and in
his official capacity as Genera! Counsel for
the Commonwealth of Pennsylvania, and
RONALD J. MARKS, individually and in
his official capacity as Commissioner of
the Pennsylvania Bureau of Corrections
NO. 82-1847
A-16
ORDER
AND NOW. this day of December. 1983 upon
consideration of detendants’ motions to dismiss and
memoranda of law in support thereof, plaintiffs’ memo
randa of law in opposition thereto and oral argument
heard thereon, and for the reasons set forth in the fore
going memorandum, it is ORDERED that
|. Defendants’ motions to dismiss are GRANTED
2. The case having been dismissed, plaintiffs’ mo
tion for class certification is DENIED AS MOOT
a ne -
A-17
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 84-1039
HARRIS, MARTIN a/k/a CARMICHAEL, ARTHUR
Prison Number 80-16203
ANTHONY, ALBERT - #81-16129.
McCREA, ORLANDO X. - #81-14560
MOORE, ANDRE - #T-3223.,
HANSFORD, FRANK L., JR. - #T-3219 T-3765
GLENN, TYRONE - #80-11017,
ROYSTER, CARLOS - #81-13076
ABDULLAH, AMIN - #82-00012,
MUHAMMAD, KHALID ALLAH - #80-08190
FURTICK, ARNOLD - #80-16429
on behalf of themselves and
all other persons similarly situated
Appellants
v.
IRENE PERNSLEY. individually and in her official
capacity as Welfare Commissioner of the City of
Philadelphia, ROYAL L. SIMS, REV. ALBERT
CAMPBELL, LABORA BENNETT. JAMES BARBER.
MARK MENDEL. DONALD PADOVA, each individually
and in his or her official capacity as a member of the
Board of Trustees of the Philadelphia Prison System.
DAVID S. OWENS, individually and in his official
capacity as Superintendent of the Philadelphia Prison
System, JOHN DAUGHEN, individually and in his
official capacity as Warden of Holmesburg Prison.
RODNEY D. JOHNSON, individually and in his
official capacity as Managing Director of the City of
Philadelphia, HON. WILLIAM J. GREEN. individually
and in his official capacity as Mayor of the City of
Philadelphia, CITY OF PHILADELPHIA, JAY C
WALDMAN, individually and in his official capacity as
General Counsel! for the Commonwealth of
4-185
Pennsylvania, and RONALD J. MARKS. individually
and in his official capacity as Commissioner of the
Pennsylvania Bureau of Corrections
Appellees
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(D. C. CIVIL NO. 82-1847)
ARGUED SEPTEMBER 10. 1984
BEFORE: GIBBONS and GARTH. Circuit Judges.
and TEITELBAUM. District Judge*
(Opinion filed February 22. 1985)
David Richman. Esq. (Argued)
Richard M. Bernstein. Esq
Philip H. Lebowitz, Esq
Pepper. Hamilton & Scheetz
123 S~uth Broad Street
Philacelphia. Pennsylvania 19109
Attorneys for Appellants
Leroy S. Zimmerman. Esq
Attorney General
Cari Vaccaro, Esq. (Argued)
Deputy Attorney General
Office of Attorney General
206 State Office Building
Philadelphia. Penns Ivania 19130
Attorneys for Appellee Marks
“Hon. Hubert | Teitelbaum. Chief Judge. United States District
Court for the Western District of Pennsylvania sitting by
designation
A-19
John P. Krill, Esq.
Deputy General Counsel
Comm. of Pennsylvania
P. O. Box 1128
Harrisburg, Pennsylvania 17108
Attorney for Appellee Waldman
Richard J. Gold, Esq. (Argued)
Divisional Deputy C**ty Solicitor
August V. Sellitto, Esq.
Assistant City Solicitor
1500 Municipal Services Bldg.
Philadelphia, Pennsylvania 19102
Attorneys for Appellees Pernsiey, Simms,
Campbell, Bennett, Barber, Mendel, Padov,
Owens, Daughen, Johnson, Green & the
City of Philadelphia
OPINION OF THE COURT
GIBBONS. Circuit Judge:
The plaintiffs. inmates of Philadelphia's
Holmesburg Prison, appeal from a judgment
dismissing their amended class action complaint,
which seeks injunctive relief against that institution as
well as money damages for the conditions of
confinement in same. The plaintiffs originally filed a
pro se complaint which was later amended after the
appointment of counsel. The trial court dismissed at
the pleading stage because of the possibility of relief
under the terms of a judgment rendered in a case
pending in the Court of Common Pleas of Philadelphia
County. We reverse.
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I.
Proceedings in the Triai Court
In February of 1971 five inmates of the
Philadelphia Prison System brought on behalf of
themselves and others a class action in the Court of
Common Pleas seeking equitable relief on federal
constitutional grounds. That covrt found the
Philadelphia Prison System to be operating in violation
of the eighth amendment prohibition against cruel and
unusual punishment. In August of 1973 the
Commonwealth Court affirmed that holding but
modified the Common Pleas Court order insofar as the
earlier order required the appointment of a master to
prepare a report and recommendation for the framing
of a final decree. Hendrick v. Jackson, 10 Pa.Commw.
392, 309 A.2d 187 (1973). The Supreme Court of
Pennsylvania, in July of 1974, reinstated the provision
in the decree providing for the appointment of a
master. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d
603 (1974). In March of 1976 the Common Pleas Court
issued its first remedial order, which, inter alia,
established a maximum inmate capacity for the
Philadelphia prisons. That limit on inmate capacity, as
well as other contested features of the remedial order,
was affirmed per curiam by the Commonwealth Court
in October of 1977. Hendrick v. Jackson, No. 1385
C.D. 1976 (Pa. Commw. Oct. 17, 1977). The Common
Pleas Court retained jurisdiction over the action.
Between February 4. 1977 and June 29, 1983 the
parties agreed upon a series of consent decrees dealing
with various methods for alleviating the overcrowded
conditions of the Philadelphia prisons. The Common
Pleas class action did not seek damages. and the
remedial decrees made no provision for individual
relief for any inmate. The defendants in that action are
officials of Philadelphia, not of the Commonwealth. On
ee ee
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at least one occasion those Philadelphia defendants
were held in contempt, and fined, for failure to comply
with various aspects of the consent decree.
In April of 1982 the plaintiffs in the instant case,
none of whom were incarcerated before April 1980,
filed a pro se complaint in federal district court seeking
damages and injunctive relief for themselves and for a
class consisting of all persons who have been inmates
of Holmesburg since that date, and on behalf cf future
Holmesburg inmates. The amended complaint alleges
that since April 30, 1982 members of the class have
been deprived of rights guaranteed to them by the
eighth and fourteenth amend.nents, in violation of 42
U.S.C. 8 1983 (1982). The amended complaint
acknowledges the provisions of the several litigated
and consent decrees which have been entered by the
Common Pleas Court, but alleges that those decrees
have never been obeyed. Plaintiffs allege, for example,
that the Common Pleas decree fixes the maximum
capacity of Holmesburg at approximately 700 inmates,
but that the current population exceeds 1300.
Plaintiffs allege that, as a result of such overcrowding,
they have been subjected to and injured by a long list of
hazards and deprivations, and have been subject to
physical and psychological injury from violent attacks,
sexual assault, and threats of physical violence by
other inmates. They allege further that each of the
defendants, with full knowledge of the existence of
unconstitutional conditions of confinement at
Holmesburg, has acted or failed to act in such a way so
as to exacerbate the overcrowding and resulting
conditions at that institution. The defendants include
the Philadelphia officials directly responsible for
Holmesburg's operation, as well as two state officials,
Jay C. Waldman, General Counsel for the
Commonwealth and Ronald J. Marks, Commissioner
of the Pennsylvania Bureau of Corrections. The
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Commonwealth defendants are alleged to be
responsible for establishing standards for county jails
and prisons, and to have made decisions respecting
classification of prisoners which resulted in the
overcrowding at Holmesburg.
The Philadelphia and the Commonwealth
defendants moved to dismiss under Fed. R. Civ. P.
12(b)(6)." The trial court granted these motions. The
court ruled that as against the Philadelphia defendants
1. Defendant Marks moved to dismiss for the following
reasons:
1. Plaintiffs Amended Complaint fails to state a claim
against defendant Marks upon which relief can be
granted.
2. Plaintiffs action against defendant Marks is barred by
the eleventh amendment.
3. The claims for injunctive relief by plaintiffs who are no
longer confined to Holmesburg are moot.
4. Plaintiffs action is barred by principles of res judicata
and collateral estoppel.
5. Defendant Marks is immune from liability for money
damages.
Defendant Waldman moved to dismiss for the following reasons
1. The amended complaint fails to state a claim against
defendant Waldman upon which relief can be granted
because of lack of specificity.
2. The action against defendant Waldman is barred by
the eleventh amendment to the United States
Constitution.
3. The action is barred by principles of res judicata and
collateral estoppel.
The Philadelphia defendants also moved to dismiss. but the specific
reasons relied upon do not appear in the record before us.
Grounds for dismissal other than those specified in the
written motions apparently were addressed at oral argument in the
trial court. The record contains no transcript of that argument.
Thus we must depend on the trial court's opinion to determine
what contentions were made in support of the Rule 12(b}(6)
motions.
A-23
both, the claims for injunctive relief and for money
damages were barred by res judicata, having been
merged in and therefore barred by the decrees of the
Court of Common Pleas. As to the Commonwealth
defendants, who were not parties to the Common Pleas
action, the court ruled that all claims against them
were barred both by the eleventh amendment and by
qualified official immunity. Alternatively, the court
ruled that because of the pendency of the state court
action it should abstain from adjudicating any aspect
of the case and, accordingly, dismissed it entirely.
Il.
Res Judicata
As we noted above, the Common Pleas Court action
did not litigate any claims for money damages. Nor did
it litigate events occurring after April 30, 1982. Thus
the Philadelphia defendants do not urge that the
plaintiffs are collaterally estopped either factually or
legally -- barred by issue preclusion -- because of any
determination made by the Court of Common Pleas.
See Restatement (Second) of Judgments § 27 (1982).
Indeed, quite the opposite is the case. The present
plaintiffs, who were not inmates of Holmesburg at the
time of the 1972 litigation, will contend, if the case
goes to trial, that the Philadelphia defendants are
collaterally estopped from attempting to defend the
constitutionality of conditions of confinement at
Holmesburg.? See Restatement (Second) of Judgments
§ 27 (1982).
What the Philadelphia defendants do urge,
however. is that the named plaintiffs in this action and
the class members whom they represent are barred by
2 The plaintiffs plead that they are entitled to rely upon the
decree in the Common Pleas action. Amended Compiaint. ‘ 50,
App. 36.
A-24
res judicata -- claim preclusion -- from asserting any
claim which might have been asserted in the 1971
Common Pleas case. See Restatement (Second) of
Judgments §§ 24. 41 (1982).
When determining the judgment preclusion effect
of a judgment rendered by a state court, we are referred
to the law of the rendering state. 28 U.S.C. § 1738
(1982); Migra v. Warren City School Dist. Bd. of Educ..,
104 S.Ct. 892 (1984); Allen v. McCurry, 449 U.S. 90
(1980). But while federal courts are directed by statute
to look to state law for determination of the judgment
preciusive effects of state judgments. state law itself is
subject to the limitations of due process. Thus there
are due process limitations upon the authority of
States to attempt to bind by judgment non-participants
in the underlying state lawsuit. Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 176 (1974): Mullane v.
Central Hanover Tr. Co., 339 U.S. 306 (1950)
Hansberry v. Lee, 311 U.S. 32 (1940). The position of
the Philadelphia defendants is that the 1971 Common
Pleas action forever bars claims for injunctive relief and
damages, not only by claimants who were inmates in
1971. but also by inmates who did not become so until
more than a decade later.
We need not decide whether Pennsylvania law
would violate due process should it purport to go that
far in applying claim preclusion. Plainly Pennsylvania
law is not so extreme.
Pennsylvania applies res judicata -- claim
preclusion -- only after a final judgment on the merits.
Bearoff v. Bearoff Bros., Inc.. 458 Pa. 494, 327 A.2d 72
(1974). Even after judgment, “ijt is well settled that for
the doctrine of res judicata to prevail there must be a
concurrence of four conditions: 1) identity of issues. 2)
identity of causes of action. 3) identity of persons and
parties to the action, and 4) identity of the quality or
capacity of the parties suing or sued.” Safeguard
ee ee
A-25
Mutual Ins. Co. v. Williams, 463 Pa. 567, 345 A.2d
664, 668 (1975). We assume arguendo, that despite the
retention of jurisdiction by the Common Pleas Court.
its liability determination would be treated by
Pennsylvania as a final judgment on the merits. It must
nevertheless satisfy the conjunctive four factor test
quoted above. That test is not satisfied by the Common
Pleas Court judgment.
There is no identity of causes of action between the
plaintiffs in the 1971 lawsuit and this one. No member
of the present class even had a cause of action. either
for injunctive relief or for damages. growing out of the
conditions in Holmesburg in 1971. for no such class
member was subjected to those conditions. A
Pennsylvania judgment is not conclusive on matters
which by reason of the nature of the case could not
have been adjudicated. E.g.. Folmar v. Elliot Coal
Mining Co., 441 Pa. 592, 272 A.2d 910 (1971); Salay
v. Braun, 427 Pa. 480, 235 A.2d 368 (1967): Maslo
Mfq. Corp. v. Proctor Elec. Co., 376 Pa. 553, 103 A.2d
743. cert. denied, 348 U.S. 822 (1954). Indeed it could
not have been anticipated in 1971 that the class
members now before us would ever arrive in
Holmesburg. Moreover there was no time at which
notice could have been given to them so as to afford
current class members an opportunity to assert the
claims now claimed by the Philadelphia defendants to
be barred. See Greenfield v. Villager Indus.., Inc., 483
F.2d 824. 832 (3d Cir. 1973): Restatement (Second) of
Judgments § 42(1)(a) (1981). No steps were taken in
the Common Pleas Court action to impose on any party
in that action the responsibility for discharging
fiduciary obligations to unknown potential future
inmates. Thus there is no identity of persons or parties
between the present class members and the named
plaintiffs in the Common Pleas Court action. The
Philadelphia defendants have not referred us to any
A-26
Pennsylvania case suggesting that the Courts of the
Commonwealth would apply claim preclusion. on the
basis of a 1971 lawsuit. against non-parties. who could
not have been notified of its pendency. so as to bar
claims for injunctive relief and damages for events
occurring over ten years later.
The trial court erred, therefore. in hoiding that res
judicata -- claim preclusion -- bars the instant action
against the Philacelphia defendants.
Ill.
Eleventh Amendment
The Commonwealth defendants. Waldman and
Marks. contend that the action against them for either
injunctive relief or damages is barred by the eleventh
amencment. The claims asserted against them are
predicated upon alleged violations of the Constitution.
They are charged with individual acts taken under
color of state law. No payments are sought from the
Commonwealth Treasury. Compare Edelman v.
Jordan, 415 U.S. 651 (1974). No relief is sought
against them under state law. Compare Pennhurst
State School & Hospital v. Halderman, 104 S.Ct. 900
(1984). They remain subject to actions for injunctive
relief, Ex Parte Young, 209 ' .S. 123 (1908). and to
actions for money damages. except to the extent that
they may enjoy official immunity.
IV
Official Immunity
Plaintiffs claim Waldman and Marks made
decisions which allegedly contributed to the
unconstitutional conditions at Holmesburg. Waldman
and Marks are not parties to the action in the Court of
Common Pleas, but. according to plaintiffs. have been
responsible in part for the failure of that court to
achieve compliance with its decree. The trial court
A-27
accepted their argument that the official immunity
holding in Harlow v. Fitzgerald, 457 U.S. 800, 815-19
(1981) barred the plaintiffs’ claim for monetary relief
because the complaint did “not contain allegations of
sufficient specificity to defeat their qualified immunity
as state officials with discretionary powers.” App. 18.
The qualified immunity defense only applies, of
course, to claims for money damages. The trial court
correctly so assumed and relied on different grounds
for dismissing the action for injunctive relief against
Waldman and Marks. Initially we note that qualified
immunity is an affirmative defense. There is no
pleading requirement that a plaintiff must anticipate
such a defense. Marks and Waldman did not move for
summary judgment; thus there is no record on which
to judge whether they would be able to place themselves
within the doctrine of official immunity.
Judging the complaint by the standard
appropriate under Rule 12(b)(6). we must assume tiat
the plaintiffs could prove that Waldman and Marks.
while knowing that the overcrewded conditions at
Holmesburg had already been adjudicated to be
violations of the Constitution. took steps under color of
state law which increased the inmate population and
aggrivated the violations. The acts complained of and
the resulting consequences are set out quite
specifically. A Rule 12(b)(6) dismissal of the complaint
against Waldman and Marks for money damages.
therefore. was an error of law
V
Abstention
As an alternative justification for dismissing the
complaint the trial court relied on what it referred to as
“(tlhe doctrine of abstention |which) permits a federal
court in its discretion to decline or postpone the
exercise of its jurisdiction.” App. 14. Identifying four
A-28
categories of cases in which federal courts may decline
to exercise jurisdiction, the court held that three were
inapplicable, but that the fourth did apply.
First, the trial court noted that under R. R.
Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941)
federal courts may postpone adjudication of a federal
constitutional issue which may be mooted or presented
in a different posture by a state court determination of
a state law issue. This ground for declining to exercise
jurisdiction was rejected because “there is no pertinent
state law which would preclude the need to decide the
constitutional tssue.” App. 14. The defendants point to
no potentially preclusive state law issue. Thus we agree
with the district court that Pullman abstention would
have been inappropriate.
Next the court considered whether the exercise of
federal court jurisdiction would substantially interfere
with a state regulatory scheme dealing with matters of
significant importance to the state. See Burford v. Sun
Oil Co., 319 U.S. 315 (1943); Baltimore Bank for
Cooperatives v. Farmers Cheese Coop., 583 F.2d 104.
109 (3d Cir. 1978). The only regulatory scheme to
which the defendants could point was the decree
imposed, on federal constitutional grounds. by the
Court of Common Pleas. The Court rejected a
Burford-type abstention. noting that “[t/he
administration of the state prison system is of
significant importance to the state but there are no
State claims made in this case; the court action in
Jackson was premised on federal not state
constitutional rights.” App. 15 (footnote omitted). No
special competence is claimed for the Court of
Common Pleas in the administration of decrees aimed
at vindicating violations of federal constitutional
rights. Thus we agree that a Burford dismissal would
have been inappropriate.
The court also considered whether it should
decline to exercise jurisdiction on the ground that it
A-29
would be called on to restrain the enforcement of a
state court proceeding in which the state had a
significant law enforcement interest. See Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975); Younger v. Harris,
401 U.S. 37 (1971). Noting that “|t}here are no state
criminal proceedings or nuisance proceedings
antecedent to a criminal proceeding involved here,”
App. 15. it declined to dismiss on the authority of
Younger v. Harris. The trial court's holding in this
respect complies with the consistent holdings of this
court that “where the pending state proceeding is a
privately-initiated one, the state's interest in that
proceeding is not strong enough to merit Younger
abstention, for it is no greater than its interest in any
other litigation that takes place in its courts.” Williams
v. Red Bank Bd. of Educ., 662 F.2d 1008, 1019 (3d
Cir. 1981); See Johnson v. Kelly, 583 F.2d 1242, 1249
(3d Cir. 1978) (abstention improper in a challenge to
constitutionality of tax sales of property when state
action to quiet title vas brought by private citizens);
New Jersey Educ. Ass'n v. Burke, 579 F.2d 764, 767
(3d Cir. 1978) (abstention improper when private
plaintiffs sued state agency in state court). Since the
municipal and state officials are defendants in the
state proceeding resisting the enforcement of federal
constitutional rights. rather than plaintiffs or
prosecutors seeking vindication of state law
enforcement policies, the trial court did not err in
declining to dismiss on the authority of Younger v
Harris and its progeny.’
3 The defendants do not contend that the plaintifis have
failed to exhaust state administrative remedies for prisoner
grievances which have been approved by the Attorney General
pursuant to the Civil Rights of Institutionalized Persons Act. Pub
L. No. 96-247. § 2. 94 Stat. 349 (1980) (codified at 42 U.S.C
8 1977\eNa\ 1) (1982)). So far as the record discloses. Pennsylvania
has not obtained approval for any such remedies
A-30
Finally, citing Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976), the trial
court identified a fourth category of cases which gave it
discretion to decline to exercise jurisdiction for reasons
of wise judicial administration when a state court had
concurrent jurisdiction over a pending action. App. 15.
See also Arizona v. San Carlos Apache Tribe of
Arizona, 103 S.Ct. 3201 (1983). The court concluded
that. in the interest of wise judicial administration. all
claims against all parties should be dismissed.
Before addressng the trial court's treatment of
Colorado River, we note the context in which the
ruling was made. We must take as true the allegations
of the complaint that conditions in Holmesburg. in
1982. violated the eighth and fou. teenth amendments
We must take as true the allegations that a decade-old
decree, which put a cap on inmate population, remains
unenforced. Moreover. the litigation pending in the
Court of Common Pieas is not fully parallel to that
brought in the district court. for no claim for money
damages was asserted in the state court case. Nor will
the federal court case involve parallel litigation even
over liability for injunctive relief. since the liability
phase of the state court case has long since been
concluded. Yet, despite that liability determination.
the complaint alleges that inmates placed in
Holmesburg since April 30. 1982 continue to suffer
injury from ongoing violations of the eighth and
fourteenth amendments.
The basic rule has always been that the pendency
of a state court proceeding is not a reason for a federal
court to decline to exercise jurisdiction established by
Congress. McClellan v. Carland, 217 U.S. 268, 281-8?
(1910). Moreover a state court having jurisdiction over
a Class action may not enjoin a parallel class action in a
federal court. Donovan v. City of Dallas, 377 U.S. 408
(1964). These holdings recognize the deference which
A-31
federal courts owe to the legislative determination by
Congress that plaintiffs have been given a choice of
forums. See Meredith v. Winter Haven, 320 U.S. 228.
236 (1943)
The Supreme Court has recognized a narrow
exception to the basic rule, where it has been able to
identify. in other Congressional legislation. a
tempering of the policy of enforcing the plaintiffs
choice of a federal forum in favor of a policy oi avoiding
duplicative and inconvenient litigation. In Colorado
River Conservation District v. United States, supra.
the Court found such a modification in the McCarren
Amendment, c. 651. Title Il, § 208(a)-(c). 6€ Stat. 560
(1952) (codified as 43 U.S.C. § 666 (1982)). in which
Congress consented to suit in state courts against the
United States when the United States was asserting
claims for water rights under a state water rights
scheme. The Court held that. in light of the McCarren
amendments. deference to a parallel state proceeding
was appropriate. since such deference would a) provide
a single court with exclusive jurisdiction over
interdependent water rights. b) avoid piecemeal
litigation, and c) provide for resort to a more
convenient forum, one which had first assumed
jurisdiction. Even while announcing this narrow
parallel litigation exception to the basic rule, however.
the Court took pains to note ~ the virtually
unflagging obligation of the federal courts to exercise
the jurisdiction given them.” Id. at 817. citing
England v. Medical Examiners, 375 U.S. 411, 415
(1964). Under Colorado Water a district court may
dismiss only upon “a carefully considered judgment”
which “lojnly the clearest of justifications will warrant
.” 424 U.S. at 818-19.
The teaching of the Colorado River case is that only
“exceptional” circumstances will permit a federal
court to refrain from exercising its jurisdiction for
A-32
reasons of wise judicial administration due to the
presence of a concurrent state court proceeding
17 C. Wright. A. Miller & E. Cooper. Federal Practice
and Procedure § 4247 (1978) p.5!9
Recently the Supreme Court has reconfirmed that
the parallel litigation exception to the basic rule of
\.Clellan v. Carl..d ts a narrow one requiring the
clearest justificat: 4. In Moses H. Cone Memorial
Hospital v. Mercury Construction Corporation. 103
S.Ct. 927 (1983). the Court held that a diversity action
to compel arbitration should not have been dismissed
in favor of a state court declaratory judgment action in
which the federal plaintiff was a defendant. There was
no assumption by the state court of control over a res
or property. and no contention that the federal forum
was less convenient to the litigants. id. 103 S.Ct. at
939. Moreover “avoidance of piecemeal litigation. and
the order in which jurisdiction was obtained by the
concurrent forums -- far from supporting the stay
actually counsel against it.” id. Addressing a factor not
considered in Colorado River. the court held that the
existence of a federal law rule of decision. which either
court must apply. was a major reason for exercising
federal jurisdiction. Justice Brennan wrote
we emphasize that our task in cases such as
this is not to find some substantia) reason for the
exercise of federal jurisdiction by the district
court; rather. the task is to ascertain whether
there exist ‘exceptional circumstances. the
clearest of justifications. that can suffice under
Coiorado River to justify the surrender of that
jurisdiction. Although in some rare circumstances
the presence of state-law issues may weigh in favor
of that surrender the presence of federal-law
issues must always be a major consideration
weighing against surrender
103 S.Ct. at 942
A-32
The test for application of the parallel litigation
exception set forth in Colorado River and reiterated in
Moses H. Cone cannot be satisfied in this instance.
The cases are not truly parallel since the federal court
plaintiffs seek money damages while the state court
plaintiffs did not. The liability phase of the state court
case is long concluded. and thus parailei litigation on
liability even for injunctive relief is not an issue. Indeed
the plaintiffs may be able to avoid some steps in the
federal court proceeding by offensive collateral estoppel
use of the state court judgment. The state court is not a
more convenient forum since both courts are located in
the same city. equally accessible to Holmesburg. No
federal statute suggests a congressional policy
tempering in any way the basic policy of affording
plaintiffs a choice of forum. Finally, of special
significance in light of Moses H. Cone, the law applied
im either forum is federal law. The mere pendency of a
state court injunction predicated on federal law, which
according to the complaint has not produced an
alleviation of ongoing violations of the constitution, is
mot such an exceptional circumstance as to relieve the
federal courts of “the virtuaily unflagging obligation .. .
to exercise the jurisdiction given them.” 424 U.S. at
817. Thus we cannot affirm the dismissal of the
complaint on the ground relied on by the trial court.
VI.
Conclusion
The judgment dismissing the complaint on the
defendants Rule 12(b)(6) motion will be reversed, and
the case remanded for further proceedings.
GARTH, J. dissenting:
The majority, in virtual defiance of Supreme Court
teachings that federal courts should not intrude in
A-34
vital state interests unless federal constitutional
concerns are being violated or ignored -- neither of
which is the case here -- has nevertheless held that a
federal court is to manage Philadelphia's jails. It so
holds despite admitted record evidence (1) that the
Pennsylvania courts have been and are exercising
strict supervision over Philadelphia's prison system
and conditions and (2) that the Pennsylvania courts
are vindicating all federal constitutional rights by
appropriate state court actions.
I canrot agree with the majority that the state's
interests, which are so very vital in the area of prison
administration, must be subordinated to federal court
determinations even while the Commonwealth is
expending every effort to correct the conditions that
have been challenged. | therefore dissent.
I.
My disagreement with the majority is a basic one. |
do not believe that Supreme Court teachings, comity.
or reason support a federal court's instrusion into a
state's administration of its prison system when the
state courts have been, and presently are. exercising
supervision over these institutions and are doing so in
accordance with both state and federal constitutional
requirements.
The pleadings clearly reveal that since March 15,
1976 the Court of Common Pleas has not only imposed
corrective measures on the Commonwealth's prison
administration, but has done so continuously through
various consent decrees. As recently as June 22, 1984,
additional orders have been entered by the state
courts. For a federal court to step in and ignore the
state's own corrective proceedings is, so far as | am
concerned, as inappropriate and wrong as I* is for a
federal court to run state hospitals, see Pennhurst
State School & Hospital v. Halderman, —— U.S. —_.
A-35
104 S. Ct. 908 (1984); Youngberg v. Romeo, 457 U.S.
307 (1982), or schools, see Williams v. Red Bank
Board of Education, 662 F.2d 1008, (3d Cir. 1981).
This is so particularly where the state courts have been
strictly enforcing federal constitutional mandates. The
majority opinion attempts to excuse and explain the
federal court's role by focussing on the money damages
which these plaintiffs seek. Maj. Op. typescript at 18. I
suggest this is a makeweight argument that cannot
govern the more important and the more sensitive
issue of federal and state comity presented by the
circumstances of this case.
Il.
In February, 1971, five prisoners in the
Philadelphia prison system brought a class action in
the Court of Common Pleas in Philadelphia County, on
behalf of themselves and all others confined in
Philadelphia prisons, seeking injunctive relief from
prison overcrowding in violation of both state and
federal constitutional provisions. The Court of
Common Pleas found violations of both the
Pennsylvania and United States Constitutions and
entered a decree which became final on June 7, 1972.
This decree was upheld on appeal. Jackson v.
Hendrick, 457 Pa. 405, 321 A.2d 603 (1974). The
Court of Common Pleas retained jurisdiction over the
remedial stage of the case, as it has until this day. The
first remedial order was issued on March 15, 1976,
establishing maximum prison population limits.
Since then, the parties have entered a series of
consent decrees governing administration of the
prisons and designed to alleviate the conditions found
violative of the eighth amendment of the United States
Constitution and Pennsylvania constitutional
provisions. The most recent such remedial order prior
to the district court's dismissal of the instant action
A-36
was issued on June 29, 1983, and directed a plan of
prison release in order to relieve overcrowding.’
The plaintiffs in the instant case filed this action
in the federal district court for the Eastern District of
Pennsylvania on April 27, 1982. seeking relief under 42
U.S.C. § 1983 from prison conditions in the
Philadelphia prison system which are alleged to violate
the eighth amendment. Class certification was sought
for a “class consisting of all persons who have been
inmates of Holmesburg Prison since April 30, 1980,
and on behalf of all future inmates of Holmesburg
Pris n.” None of the named plaintiffs were incarcerated
before April 30, 1980; thus, none o/ the plaintiffs were
prisoners during the time the 1971 action was
initiated in state court. Nevertheless, plaintiffs, in
their amended complaint, allege that the entire current
plaintiff class is included in the 1971 class.
The current class action alleges that conditions in
the Philadelphia prison system remain in violation of
the eighth amendment, primarily due to continued
overcrowding and the prison system's failure to comply
with the state court's remedial decrees. Damages and
injunctive relief were sought against the City of
Philadelphia and various City officials in charge of
prison administration. Further, damages and
injunctive relief were sought against state officials.
Waldman and Marks, for their actions certifying the
prisons as suitable for prisoners who were sentenced to
maximum terms of greater than six months and less
than five years.
1. Since this appeal arises from a dismissal by the district court
under Fed. R. Civ. P. 12(b)(6). only the facts pleaded up to that time
are relevant to disposition of the appeal. We note. however. that the
Court of Common Pleas issued remedial orders on April 3. 1984
and June 22. 1984. which are subsequent to the date of the district
court's dismissal. The orders established a timetable for
construction of new facilities. and provided fines in case of
non-compliance
A-37
Both the City and State defendants filed motions
to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. The district court granted these
motions to dismiss on several grounds. First, as to the
City defendants, it found that the plaintiff class’ claims
were barred ‘vy the doctrine of res judicata, their claims
having been merged into the decrees of the Court of
Common Pleas. Second, it held that the doctrine of
Colorado River abstention was applicable to this case,
where resolution of the dispute is primarily committed
ico the state court. It further decided that such
abstention required dismissal of this case. Third, as to
the State defendants, the district court found
plaintiffs claims to be barred by both the eleventh
amendment protection of state sovereign immunity
and qualified official immunity.
| agree with so much of the majority opinion that
holds that the prisoners’ claims are not barred by res
judicata. | also agree with the majority's resolution of
the qualified official immunity defense asserted by
defendants Marks and Waldman, and its holding that
the brand of abstention announced in Colorado River
Water Conservation District v. United States, 424 U.S.
800 (1976) does not apply to this case. | part company
with the majority, however, in its holding that Younger
v. Harris, 401 U.S. 37 (1971) does not authorize
abstention in this case. Accordingly. | would remand
the case to the district court with instructions to
abstain from proceedings with this case, while at the
same time retaining jurisdiction should any federal
claims remain unresolved by the state court's action.
ITI.
This court has recently approved a form of Younger
v. Harris abstention that has the effect of harmonizing
2. Colorado River Conservation Dist. v. United States. 424 U.S
800 (1976)
A-38
both federal and state remedies. Younger v. Harris,
401 U.S. 37 (1971), established a principle of
abstention where federal adjudication would disrupt
an ongoing state criminal proceeding. In Moore v.
Sims, 442 U.S. 415 (1979). the Supreme Court
extended Younger abstention to purely civil
proceedings. applying the doc.rine to bar federal court
adjudication of a child custody claim where state court
custody proceedings were already in progress. Even
though Sims was challenging the procedures used in
the state proceedings. the Supreme Court found
abstention appropriate:
The Younger doctrine. which counsels
federal-court abstention when there is a pending
State proceeding. reflects a strong policy against
federal intervention in state judicial processes in
the aosence of great and immediate irreparable
injury to the federal plaintiff... . that policy was
first articulated with reference to state criminal
proceedings. but as we recognized in Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975): the basic
concern -- that threat to our federal system posed
by displacement of state courts by those of the
National Government is also fully applicable to civil
proceedings in which important state interests are
involved.
Id. at 423.
This court then applied Younger abstention to
state administrative proceedings in Williams v. Red
Bank Board of Education. 662 F.2d 1009 (3d Cir
1981). We have required that Younger abstention in
such civil proceedings be based on the presence of
weighty state interests. See Williams at 1017. | can
think of no more weighty, vital or intimate state
interests than the administration of a state's
penological system. Indeed, the Supreme Court has
given the federal courts unambiguous instructions to
4-39
pay great deference to the States’ weighty interest in
administering their own prison systems. See
generally Rhodes v. Chapman, 452 U.S. 337 (1981):
Bell v. Wolfish. 441 U.S. 520 (1979): Union County
Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983).
In light of the Supreme Court's admonitions
pertaining to vital state interests, we held in Williams.
a case which concerned school disciplinary
proceedings. that:
|Ojur analysis and our reading of Younger
cases impress us that where federal intervention
into state administrative proceedings would be
substantial and disruptive. and where the state
proceedings are adequate to vindicate federal
claims and reflect strong and compelling state
interests, the district court. pursuant to Younger.
should abstain.
662 F.2d at 1017
Williams involved a suit brought in federal court
by a school teacher seeking an injunction against
further state prosecution of an administrative
disciplinary proceeding. expungement of the
proceeding from her record. and compensatory and
punitive damages. In Williams. we upheld so much of
the district court's order directing abstention in favor
of the pending state administrative proceeding. but we
vacated that aspect of its order which dismissed
Williams’ complaint. Instead we directed the district
court to retain jurisdiction pending resolution of the
state proceedings in order to provide those remedies.
such as constitutional damages. which were available
only in the federal action. Recognizing that Williams
must seek relief in federal court which was not
available to her in State proceedings. we refused to
deny a federal court's duty to assume jurisdiction
where jurisdiction properly existed. We also
recognized, however. that the federal court would find
\-40
it difficult if not impossible to adjudicate Williams
constitutional claims until after all State proceedings
had been finally completed.’
In the present case, the courts of Pennsylvania
have been overseeing the remedies directed to
Particular prison conditions and have been issuing
remedial orders since at least March 15. 1976. They
have done so after consideration of prison conditions
which were alleged to violate both federal and
Pennsylvania constitutions. Thus. the Pennsylvania
courts have not only been aware of. but have sought to
vindicate. federal concerns Indeed. the complaint
recites that a total of $325.000 in fines has been levied
by the court for failure to comply with various
corrective provisions of the consent decree which had
been entered. The complaint further recites that there
have been four additional consent decrees that have
been approved by the Court of Common Pleas as late as
December 21. 1982. Moreover. as recently as June 29
1983 -- more than one year after the present federal
action was commenced -- the state court entered still
another order establishing a plan of prison release to
relieve overcrowding. That order was foliowed by still
additional orders entered by the state courts as late as
June 22. 1984
| recognize that obiter dictum in prior decisions of
this Court has indicated that Younger abstention
would ordinarily not obtain where the state
3. Similarly. in Scott » Germano. 381 US 407 1965). the
district court hearing the Reynolds \ Sims. 377 U.S. 533 (1964
voting reapportionment case on remand was directed to vacate its
judgment and stay ‘ts proceedings in order to give pending siate
court proceedings an opportunity to implemen: its own remedial
plan See also. Halderman \ Pennhurst State School and Huspital
673 F.2d 647. 662-671 (1983) (Garth. J concurring) (federal!
judicial oversight of state remedia! plan preferable to appointment
of federal master). rev'd on other grounds... US... 104 & C+
908 (1984)
A-41
proceedings were instituted by a private party rather
than by the state as sovereign. See Johnson v. Kelly,
583 F.2d 1242, 1249 (3d Cir. 1978): New Jersey
Education Association v. Burke, 579 F.2d 764, 767
(3d Cir. 1978). Indeed, Williams itself repeats that
Suggestion. and the majority in this case. relying on
that dictum, thereby rejects Younger (Williams)
abstention here.
While the statements in Williams, Kelly and Burke
may be said to create a presumption against a
sufficient state interest in the pending proceedings to
invoke Younger abstention where the pending
proceedings were privately initiated. none of those
cases foreclose Younger abstention in a case such as
this one. Williams did nox involve privately initiated
proceedings. Kelly found abstention inappropriate
where the state was not a party to the pending
proceedings. However. in the instant case. state
officers and other governmental parties are actively
involved in the suit. In Burke, the Court considered the
fact that the state proceedings were privately instituted
to be but one of the many factors mitigating the state's
interest in exclusively adjudicating the claims. as
weighed against the interest in a federal forum. Thus.
the fact that the state did not initiate the instant
proceeding is not fatal to the application of the
Williams abstention doctrine
Moreover. to put the issue of “private initiation”
completely to rest. it must be remembered that the
State proceeding was not recently instituted but has
long since passed the liability determination and is
presently in the enforcement stage. As | have noted. the
original decree finding liability was entered June 7.
1972. nearly thirteen years ago. and has been foliowed
since then by other decrees and orders of enforcement
Thus. the present nature of the state proceeding is one
that has for all practical purposes lost any “privately
A-42
initiated” character. The Commonwealth seeks po
more than to enforce in its own courts, those decrees
long since entered by its own courts. Thus. to reject
Williams abstention on the ground that it does not
apply where the suit has been privately initiated, is to
ignore both the jurisprudential and prudential
characteristics of the present state proceedings. In the
present case, | am entirely satisfied that Pennsylvania's
weighty interest in adjudicating through its own
courts a broad remedial program aimed at revamping
the Philadelphia prison system more than makes up
for the circumstance that the original litigation was
instigated by prisoners: the litigation having
commenced in 1971 and a liability determination
having been entered in 1972.
In such a situation where the state court has
exercised continuing supervision over its own orders.
and has sought to accommodate federal as well as state
concerns, it would be inprovident for this court to
intrude in the ongoing state court proceedings. By the
same token, however. it must be recognized, that if. in
the unlikely situation that the conditions of which the
prisoners complain are not remedied by the
Pennsylvania court, no barrier should exist against the
prisoners seeking relief in federal court. Thus. a
retention of jurisdiction and a Stay of proceedings by
the federal court. in order to give the State Court a
reasonable time to implement its decree before the
imposition of federal remedies. is as appropriate here
as we found it to be in Williams. supra
[Vv
Although the prisoners sought a judgment in
federal court which would declare the conditions of
confinement at Holmesburg Prison to be
unconstitutional and sought to enjoin the City
defendants from continuing to incarcerate them under
A-43
unconstitutional conditions, they also sought money
damages, costs, and attorneys fees. They sought
injunctive relief and money damages against the two
state defendants, Waldman and Marks, as well, based
upon their actions in certifying the Philadelphia
prisons as eligible institutions to receive prisoners
The district court regarded the claims for money
damages against the City defendants as barred by res
judicata and Colorado River abstention. | agree with
the majority's reasoning and holding that the district
court erred in applying these doctrines to the
circumstances of this case.
| disagree, however, with the majority's view that
the claims for money damages counsel against
abstention in this case. Although the majority piously
looks at the claim for money damages and constructs a
theory on which it reverses the district court based on
the fact that money damages have been sought. any
cursory reading of the Complaint and review of the
litigational history reveals that this is by far the most
insignificant element of the plaintiffs charge. What the
plaintiffs seek here is pure and simple equitable relief
and they seek it on federal constitutional grounds. The
money damages, as | read the Complaint. are
incidental
Until such time as there has been appropriate
enforcement of the Pennsylvania court's orders. it is
premature even to consider damages against officials
whose activities or responsibilities have been
challenged. Thus, this is not a case of parallel!
litigation. As the majority points out, the equitable
liability has already been determined in the state court
(Maj. op. typescript at 18) and it is the enforcement of
this liability over which the majority now seeks to
assume control
lam not suggesting for a moment that we decline
to exercise jurisdiction. | suggest only that
A-44
considerations of comity dictate that we withhold our
federal hand -- while retaining jurisdiction -- until the
State proceedings have concluded and it is appropriate
for federal proceedings to commence. providing always
that the federal claims giving rise to these proceedings
have not been resolved.
Because | would hold that it is inappropriate for a
federal court to intrude at this time in the state
proceedings (which involve the same subject matter
presented by the prisoners complaint here. and which
proceedings have been ongoing and continuous) it
would be inappropriate as well for a federal court to
adjudicate the merits of the prisoners claims against
the individual City defendants. If the federal court
must bide its time with respect to. the merits of
constitutional violations which the prisoners assert. it
is evident that it must also bide its time with respect to
resolving claims against the individual defendants
where such damage claims may well be resolved in the
pending state action.‘ Thus. to this extent the
Situation presented here is analogous to the situation
which obtained in Williams v. Red Bank. supra.
where we said.
[It is difficult to see how the federal court could
adjudicate Williams constitutional claims and
4. it ts unclear from the record before us whether the prisoners
claims for money damages against the individual City defendants
will be resolved im the state proceedings. Counsel! for the City of
Philadelphia represented at oral argument that earlier such claims
have been previously brough! and have been resolved by the Cour
of Common Pleas. If. in fact. such relief is available in the state
court. the granting of such relief may very well moot out the
concurrent relief sought in this action. Wf. however. these claims
cannot be resolved in state court. resolution of these claims bv the
federal court at the conclusion of the state proceedings would be
appropriate under Williams v Red Bank Board of Education 662
F.2d 1008 (34 Cir. 1981)
attorneys fees until after all disciplinary
proceedings have been finally completed. How
could the damages be calculated. for example. until
it is known whether Williams is to be “acquitted
discharged. or suffer a reduction in salary”
So. too, here. it would be exceedingly difficult and
in my opinion. jurisprudentially improper. for the
district court to fashion relief for the alleged
unconstitutional conditions of Holmesburg prison’
until the state court has had a reasonabie time to
implement its remedial decrees.*
v
Within recent weeks. this court has recognized the
vita’ interests that a state has in the administration of
Among other claims. the prisoners charged in paragraphs 43
anc 44 their complaint that food was unsanitartly prepared and
eervecn there’ wee & ark O bedding towels anc totletries that there
was reduced or inadequate access to recreational facilities
rarves. iegal materials religious services. and telephones that
sitation rights ever | legal Cowner!. were impaired: and the
because wercrowding prisoners have been subiected to physica
pitecks. sexual assaults. and peyvchological injuries. The state
iciendants have also been charged in paragraph 54 with having
assified the Philadelphia prisons as cligible to receive prisoners
twithstandng the unconstitutiona mditions alleged to exis! a
hMoimesourg
; recognize thai state proceedings have onmtimued for sorme
vears However the etate rs haw herr r nmattentive t he
aims he prisoners As eervec earlier ir thie pin "
emedia rders have been entered both prior and subsequen
Ps rymtit 7) he ineatar + f °@¢ rv i Apr ae |
: ’ 4 see tex! Supra anc @ mpanving note Moreover
: " re Pye " : r« “AAl . — . , ‘> » re rrve . rw
° " ‘ supe . . he record Goes
~ a ve ‘ “ gness : : rye state '
4 dd : . we sutbee "
\-46
its penal system by scheduling a case for in banc
consideration where one of the significant issues
concerns absteniion. Georgevich v. Strauss. No
54-5194 (3d Cir. Jan. 9. 1985) (order listing case in
banc). Georgevich involves the manner in which
Pennsylvania may parole its prisoners. The present
case involves the administration of prisons and the
remedial measures designed to bring the Philadelphia
prison system in line with state and federal
constitutiona! requirements
| find no distinction between the importance of the
comity issue presented in this case and the importance
of the comity issue. which is one of the issues
presented in Georgevich. In the present case the
majority opinion requires that a federal court override
& States enforcement of its own court orders. which
orders have as their objective. compliance with the
federal. as well as the state. constitutions. | suggest
that if Georgevich warrants the attention of a full
court. even more so does this case
| would vacate the judgment of the district court
and remand with instructions to retain jurisdiction
over the proceedings in order to resolve any federal
claims remaining at the conclusion of the state action
A True Copy
Teste
Clert of the Unted Stetes Coun of Apoeais
for the Ther’ Cireu
;
A-47
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIPCUIT
No. 84-1039
MARRIS. MARTIN a/k/a CARMICHAEL. ARTHUR
Prison Number 8016203 et al.
Appellants
v.
IRENE PERNSLEY. individually and in her official
capacity as Welfare Commissioner of the City of
Philadelphia. et al.
Appellees
SUR PETITION FOR REHEARING
resent: ALDISERT. Chief Judge. SEITZ. ADAMS.
GIBBONS. HUNTER. WEIS. GARTH.
HIGGINBOTHAM. SLOVITER. BECKER.
Circuit Judges and TEITELBAUM. District
Judge*
The petition for rehearing filed by City Appellees in
me above entitled case having been submitted to the
iges who participated in the decision of this court
) all the other available circuit judges of the
in regular active service. and no judge who
rred in the decision having asked for rehearing.
' majority of the circuit judges of the circuit in
*guler active service not having voted for rehearing by
irt in banc. the petition for rehearing is denied
Hubert |. Teitelbaum. Chie! Judge. United States District
the Western District of Pennsylvania. on pane! rehearing
A-48
Judges Adams. Hunter. Weis. Garth and Becker
would grant the petition for rehearing.
Judge Adams dissents from the denial! of the
petition for rehearing in banc because he believes that
this case raises important questions regarding the
scope of the Younger abstention doctrine. and because
it appears that the state court proceedings involving
the Philadelphia County prison system are being
conducted in good faith and with due haste.
By the Court,
JOHN J. GIBBONS
Judge
Dated: March 21. 1985
GARTH. Circuit Judge. dissenting from the Court's
denial of the City of Philadelphia's Petition for
Rehearing:
My dissent from the refusal of the majority to order
Williams v. Red Bank Board of Education. 662 F.2d
1009 (3d Cir. 1981) abstention was grounded on the
principle that Federal courts should not take over.
manage and operate city or state prisons when the
State courts are enforcing all constitutional -- including
federal constitutional -- requirements. At the time that
| dissented from the panel opinion. | wrote
| do not believe that Supreme Court teachings.
comity. or reason support a federal court's
intrusion into a state s administration of its prison
system when the state courts have been and
presently are. exercising supervision over these
institutions and are doing so in accordance with
State and federal constitutional requirements
A-49
The pleadings clearly reveal that since March
15. 1976. the Court of Common Pleas has not
only imposed corrective measures on the
Commonwealth Prison Administration, but has
done so continuously through various consent
decrees. As recently as June 22, 1984, additional
orders have been entered by the state courts. For a
federal court to step in and ignore the state's own
corrective proceedings is, so far as | am concerned,
as inappropriate and wrong as it is for a federal
court to run state hospitals. see Pennhurst State
School and Hospital v. Halderman, —— U.S. —_.
104 S. Ct. 908 (1984); Youngberg v. Romeo, 457
U.S. 307, (1982). or schools, see Williams v. Red
Bank Board of Education, 662 F.2d 1008, (3d Cir.
1981). This is so particularly where the state
courts have been strictly enforcing federal
constitutional mandates
The Petition for Rehearing that followed the filing
of our opinions in Harris pointed out that Jackson v.
Hendrick. No. 71-2437. slip op.. (C.P. Phila. April 7,
1972), which resulted in a consent decree, affirmed by
the Pennsylvania Supreme Court, 457 Pa. 405 ‘1974),
was originally brought as a broad challenge to
conditions in the Philadelphia prisons, . . . including
overcrowding The case extends to every
detention or prison facility within the city. . . In recent
vears. the Jackson court has focused intensely on
overcrowding
‘The supervision by the Jackson court has been
active. and has involved not only the court but also the
full time work of a master appointed by the court
During 1984. the Jackson court has taken the
following sieps
|. On April 23, 1984. the Jackson court ordered
an emergency release program and an expanded
program of bail review hearings to expedite the
A-50
release of detainees who do not pose a threat to the
community. That same order required the city to
construct new prison facilities. including an
additional 1200 cells in 1986 and 1987
2. On June 22. 1984. the Jackson court imposed
population caps on the existing Philadelphia
prisons effective October 1984 to decrease the
prison population from 3600 to 2700 inmates.”
City Appellees’ Petition for Reconsideration in Banc
The record before the panel of this court did not
disclose the State Court's activities and orders after
June. 1984. The Petition for Rehearing now reveals the
following
On October 11. 1984. after finding that the City
was In contempt because the population exceeded
the court-ordered cap. the state court fined the
City in excess of $200.000 per month. In addition
the state court released approximately $300.000 in
previously collected fines from the City and
established a committee to distribute these funds
The City appealed the June 22. 1984 and the
October 11. 1984 orders. On October 17. 1984. the
Chief Justice of Pennsvivania Supreme Court
issued a stav of these orders pending their appeals
On November 22. 1984. the Pennsvivania Supreme
Court assumed plenary jurisdiction of the appeals
at the request of the City. The Supreme Court also
agreed to consider the legality of the one man. one
cell’ rule which underlies all of the Jackson courts
orders
Thus. not only have the lower state courts in
Pennsvivania been activeh engaged in controlling and
supervising the prison population and prison
conditions of the Philadelphia Count prisons. but it
now appears that effective Novernber 21. 1984. the
Pennsylvania Supreme Court itself has taken over all
) lings filed in such actions. More importanth
enns inia Supreme | irt Nas directed
n ince witl rt rders concerning
siru ’ new facilities <) popuilatior ips ;
lease prisoners. and (4) cond ns ol conlinement
ing aoubile and triple celling
ryese are’ ti ‘ eT .sves ry\ ed the te 1erTal
ceeding before us and. as the Pe n tor Rehearing
Se es niess ims abDstention is ordered. the
state review the Philadelphia County
sons w ne subse ni ting and Contrary
ermina respecting eac! these vital state
rns \ ling is natter | federal court
Suggest that the pane! majority has erred in its
f ICKI “w1edge nsiaerations mit hue
, mmonwealt}
I ¢ el iS a matter aw tne major ;
iivsis nme \ ims abste nm Gagoctrine. and its
ippiv Vi ims nere. is just plain wrong and
lelensible Perhaps al! rre il sis wi |
} : nhapt res ma ne eriooked or
¢ Dp ate La vnere the stakes and the
erests are higt Where. however
f ; 1 cistorted read ¢ Supreme urt and
precede eadas rhe eT ledera
State . s il the Supreme irt
. ¢ 7 ry< ’ Nave } seled avainst
sueevest we Nave exceeded ir functions Dy far
mis ist ne Pre . : i Siate Ourts Nave
er erset g and supe sing the hiladeliphia
: SOns ‘ ’ . . Spe | naste |
t es and ¢ neans have beet
f i SsvVste Na 1s Uhiel tice Nix
re 5 i ids ¢ ¢ irt rece neia
: he ia pas Si) es ‘ :
_ : Ss nave a ied the ne tabDil
| o aad : ’ _ ign rat I }
’ : _ : } : J a
Hendrick. No. 180 E.D. Misc. Docket 1984 (Pa
October 17. 1984)
The attention that has been given to prison
problems in Philadelphia County prisons is further
evidenced by the observation of Chief Justice Nix of the
Pennsylvania Supreme Court that
neither party charges this administration
with tactics of such dimensions. Under the present
city administration. a new facility of 650 beds is
being constructed in the northeast section of
Philadelphia. We are advised that the excavation
Stage of that project has been completed
Discussions are being had regarding the
establishment of a center city holding and criminal
justice center. It has also been agreed that the city
is now cooperating in the bail release provisions of
earlier orders. Although such efforts show a
willingness to comply with the June 22 order in
the future. the employment of a leisurely pace in
planning and executing these intentions will no
longer be tolerated
Id. Thus in addition to a special master and constant
and continuing lower court attention. the Supreme
Court of Pennsylvania has now taken charge of this
uniortunate situation
Under these circumstances. | ask the question that
the majority has never sought to answer -- what more
consistent with Supreme Court precedent and
directives. should. or could. a federal district court do
to accomplish what is presently underway in the
Philadelphia court system? The question which in my
pinion this Court in banc should answer is: unde
Williams. supra. why should not the federal court bide
its time until. if ever. it appears that the stringent
measures and remedies prescribed by Pennsvivania |
vindicate federal court rights. have either failed or are
unavailing
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.