Memorandum — Eichenlaub v. Yurky

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Supreme Court, U.S.

} FILED

NO. 85-236 APR 25 1986

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

HARRY EICHENLAUB, Warden Clinton County Jail

Petitioner

Vv.

DAVID ALAN YURKY, MR. ZIMMERMAN, Warden

SCI at Huntingdon, MR. WICKER, Deputy

Superintendent SCI at Huntingdon,

Respondents

MEMORANDUM OF PETITIONER

HARRY W. EICHENLAUB IN OPPOSITION

TO MEMORANDUM OF RESPONDENT

SUGGESTING MOOTNESS

JOHN C. YOUNGMAN, JR.

Counsel of Record

CANDOR, YOUNGMAN,

GIBSON & GAULT

23 West Third Street

P.O. Box 1507

AMY ZAPP, Deputy Williamsport, PA 17703

Attorney General (717) 322-6144

Office of Attorney Counsel for Petitioner

General

Criminal Justice DAVID RUDOVSKY

Agencies Counsel of Record

1512 Strawberry Sq. 10th Floor

Harristown Bldg. #1 121 North Broad Street

Harrisburg, PA 17102 Philadelphia, PA 19107

(717) 783-1471 (215) 568-3190

Counsel for Mr. Wicker Counsel: for David Alan

& Mr. Zimmerman Yurky

Petition for Certiorari filed August 8, 1985

Certiorari granted January 13, 1986

(i)

TABLE OF AUTHORITIES

CASES

Edelman v. Jordan, 415 U.S. 651,

94 5S. Ct. T3457, 39 L.Ed. 20 G22

Oi Se Perera re sre. eer ey ee

Griffin v. County School Board,

377 U.S. 278, BY S. Ct. 1226,

12 1.06. 26 2O0 CPPS cca wees

Kentucky v. Graham, 105 S. Ct.

USE 5 PRS eee hese see Rhee etre,

Lincoln County v. Luning, 133

U.os Dee, YO oS. CE. Jos, 33

Let, FOR TOGO) neestesete cave

MeSurely v. McClellan, 753

Feee@ OO CCR Ose COB o le ccweees

Moor v. County of Alameda, 411

U.s- O93, $93 S. Ct. 1785, 36

i ae a a 8 Seer

Polk County v. Dodson, 454 U.S

312, 102 S. ct. 445, 70 L.Ed. 2d

BOG FIGS ic iv bce asec e ketenes

Rende v. Kay, 415 F.2d 983

Pose cu Tee ai kava ose ees

Rizzo v. Goode, 423 U.S. 362,

| bie i 2. 2 eye oe

(ii)

STATUTES

ee ae ee ere Berens 4

RULES

Federal Rule of Appellate

FPOCOGwre S30). 6c vs ceca caccces oe

Federal Rule of Civil

Procedure 25(a)...ce«ccs re eee 7

NO. 85-236

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

HARRY EICHENLAUB, Warden Clinton County Jail

Petitioner

DAVID ALAN YURKY, MR. ZIMMERMAN, Warden

SCI at Huntingdon, MR. WICKER, Deputy

Superintendent SCI at Huntingdon,

Respondents

MEMORANDUM OF PETITIONER

HARRY W. EICHENLAUB IN OPPOSITION

TO MEMORANDUM OF RESPONDENT

SUGGESTING MOOTNESS

Respondent, Harry W. Eichenlaub and

his successor Arwyn Reish and the Estate

of Harry W. Eichenlaub to be substituted

by their counsel, Candor, Youngman,

Gibson & Gault, respectfully submits this

Memorandum of Petitioner in opposition to

the suggestion of mootness by the

Respondent in the above captioned matter,

and advises the Court of facts as

follows:

1. The suit of Respondent requested

in addition to damage relief, injunctive

relief (J.A. 27).

2. Harry W. Eichenlaub's death

occurred before the Petition for

Certiorari was filed in this Court.

AS such, the matter of substitution is

not provided for in Supreme Court Rule

40.1. Rather, the matter of substitution

is controlled by Federal Rule of

Appellate Procedure 43a, which provides

that substitution is to be effected after

the notice of appeal is filed in accor-

dance with 43a. Rule 43a does not pro-

vide for abatement of the action.

3. A Motion is being made to the

Third Cireuit Court of Appeals to substi-

tute the Estate of Harry W. Eicheniaub

for Harry W. Eichenlaub as Petitioner

with respect to the personal liability.

4, Harry W. Eichenlaub, as Warden of

Clinton County Jail, was an employee of

Clinton County, and enunciated the policy

of Clinton County with respect to having

post-transfer independent tribunal

hearings in the case of transferred pri-

soners. As such, the action was an offi-

cial capacity suit because an

administrative policy was involved.

Kentucky v. Graham, 105 S. Ct. 3099

(1985).

5. By Opinion of the Attorney

General of Pennsylvania of 1971, No. 55,

which is attached hereto and marked as

Exhibit "A", the warden at a County pri-

Son has power to make rules and regula-

tions for the government and management

of the prison in the safekeeping,

discipline and employment of the priso-

ners aS may be deemed necessary,

construing 61 P.S. §409.1

6. Eichenlaub, in transferring

Yurky, acted in his official capacity as

Warden of the prison, and as such as an

official of Clinton County, Pennsylvania.

161 P.S. §409 provides as follows:

"That, within thirty days after this act

Shall become effective in any county, the

above-named board shall meet and organize

by the election of a president and secre-

tary. A majority of the members of said

board shall constitute a quorum for the

transaction of business, and all actions

of said board must be by the approval of

a majority of all the members of said

board. The board shall meet monthly, or

oftener if required, and keep regular

minutes of their proceedings in a book,

to be filed with the financial records of

each of said counties, and shall make

such rules and regulations for the

government and management of the prison,

7. The action is not barred by the

Eleventh Amendment since the State will

not pay the money damages in this case,

but they will be paid by Clinton County.

See Edelman v. Jordan, 415 U.S. 651, 94

S. Ct. 1347, 39 L.Ed. 2d 662 (1974);

Lincoln County v. Luning, 133 U.S. 529,

10 S. Ct. 363, 33 L.Ed. 766 (1890); Moor

v. County of Alameda, 411 U.S. 693, 93 S.

Ct. 1785, 36 L.Ed. 2d 596 (1973);

Griffin v. County School Board, 377 U.S.

218, 84 S. Ct. 1226, 12 L.Ed. 2d 256

(1964).

and the safekeeping, discipline, and

employment of the prisoners, as may be

deemed necessary. Such meetings shall be

held at the prison no less than quar-

terly. The board shall appoint a warden

of the prison. The warden, subject to

the approval of the board, may appoint

such deputy or deputies, assistant or

assistants, keeper or keepers, as may be

required in the taking care of the pri-

son. The number and compensation of such

deputies, assistants, or keepers shall be

8. This case is not controlled by

the case of Rizzo v. Goode, 423 U.S. 362,

96 S. Ct. 598, 46 L.Ed. 2d 561 (1976)

inasmuch as the Plaintiff was affected in

his own rights by the policy of Clinton

County and seeks injunctive relief for

the future. See Polk County v. Dodson,

454 U.S. 312, 102 S. Ct. 445, 70 L.Ed. 24

509 (1981).

9. Eichenlaub was acting in his

official capacity in denying the post-

transfer hearing.

10. Eichenlaub's position and the

position of the County in this suit is

that Petitioner is not entitled to a

post-transfer independent tribunal

hearing.

fixed by the salary board." This sta-

tute has been amended since 1971;

however, the statute has not been amended

concerning the powers and duties of the

warden of the prison.

11. Petitioner claims denial of his

Fourteenth Amendment rights to due pro-

cess as part of his claim.

12. The case of McSurely v.

McClellan, 753 F.2d 88 (C.A.D.C. 1985),

sets forth how substitution is to be

effected. Said substitution may be

effected by Plaintiff at this time,

either in accordance with F.R.A.P. 43(a)

or in accordance with F.R.C.P. 25(a).