Suggestion — Eichenlaub v. Yurky

Supreme Court, U.S.

FILED

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APR 24 1hAG

No 85-236 Pre

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

HARRY EICHENLAUB,

Petitioner.

V.

Davip ALAN YURKY,

Respondent.

MEMORANDUM OF RESPONDENT,

DAVID ALAN YURKY,

SUGGESTING MOOTNESS

DAVID RUDOVSKY

First Assistant Defender

Defender Association of Philadelphia

121 N. Broad Street

Philadelphia, PA 19107

(215) 568-3190

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

a

Respondent, David Alan Yurky, by his counsel, David

Rudovsky, respectfully submits this Memorandum of

Respondent, David Alan Yurky, Suggesting Mootness to

advise the Court of certain facts which in Respondent's

view render this cause moot:

1. On August 8, 1985, Petitioner filed a Petition for

Writ of Certiorari in this Court. The Writ was granted on

January 13, 1986, on the issue of whether Petitioner vio-

lated Respondent’s rights to due process of law by his

transfer from a County Prison to a State Correctional

Institution without a hearing.

2. At the time that the Petition for Writ of Certiorari

was filed, petitioner Harry Eichenlaub was deceased,

having died on July 13, 1985. See Brief for Petitioner, 1,

n.1. This fact was unknown to Respondent until the filing

of Petitioner's Brief (March 27, 1986), and apparently was

not called to this Court’s attention until that time.

3. No substitution by a proper representative of the

deceased was made within six months of petitioner's

death; accordingly, unless the automatic substitution

provisions of Rule 40 of the Court are applicable, this case

abates as a matter of law. Rule 40.1.

4. This action has been litigated as a damages claim

against Harry Eichenlaub in his personal capacity under

42 U.S.C. Section 1983. J. A. 26-27. The theory of this case

is that petitioner violated Respondent’s rights to due pro-

cess of law under the Fourteenth Amendment by depriv-

ing him of a hearing in connection with his transfer to a

state prison facility. Any damages for this violation can be

assessed solely against petitioner and not his successor ‘1

office or the employer-county (which is not a party to the

suit). No claim has been made that petitioner acted in

accord with official governmental policy. See Kentucky v.

Graham, 473 U.S. —_, 105 S.Ct. 3099 (1985); Monell v.

New York City Dept. of Social Services, 456 U.S. 658

(1978); Rizzo v. Goode, 423 U.S. 362 (1976). Cf. Bender v.

Williamsport Area School District, No. 84-773 (March

25, 1986). As the Court stated in Kentucky v. Graham,

supra, 105 S.Ct. at 3105:

Personal-capacity suits seek to impose personal lia-

bility upon a government official for actions he takes

under color of state law. See, e.g., Scheuer v. Rho-

des, 416 U.S. 232, 237-238 (1974). Official-capacity

suits, in contrast, “generally represent only another

way of pleading an action against an entity of which

an officer is an agent.” Monell v. New York City Dept.

of Social Services, 436 U.S. 658, 690, 1.55 (1978)...

Thus, while an award of damages against an official in

his personal capacity can be executed only against

the official’s personal assets, a plaintiff seeking to

recover on a damages judgment in an official-capacity

suit must look to the government entity itself.

This is not an official capacity suit and no automatic

substitution for petitioner Eichenlaub can be effected

under Rule 40.

WHEREFORE, Respondent Yurky suggests that this

case is moot. Respondent moves this Court to enter an

Order pursuant to Rule 40 that the matter is abated and

that certiorar] was improvidently granted. In the alter-

native, the Court should defer consideration of this issue

to the hearing of the case on the merits, and to order any

supplemental briefing that may be appropriate.

Respectfully submitted,

Davip Rupovsky

First Assistant Defender

Defender Association of Philadelphia

121 N. Broad Street

Philadelphia, PA 19107

(215) 568-3190