Petition for Writ of Certiorari — Irene Pernsley v. Martin Harris

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

-Supreme Court, 8%.

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.

A-20

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

A-21

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

A-22

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

~

7

:

>

.

art

ete

NN

; *

'

>

i

or

_

~

_

vA

‘ lers<

iris

msicet

, _ Z

__ :‘.

| Vitié :

Te

Witt j

re<cen!t

erred

ii .

-_— >

5a.

tus. N

\A \ re

a7 . is

rhe is ~~

s,s we ’

: ’ 1? .

n< are

roe ’

~

and ne

}

:

—

\ ~ : be

_ — ary

\ er °<s

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition for Writ of Certiorari — Irene Pernsley v. Martin Harris · 474 U.S. 965 | Frix