Appendix — Castille v. Harris
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Supreme urt,
pr aat | Prey
SEP 14 1987
A entitiileiianiinia
JOSERH se N10) JR.
In The CLERK
Supreme Court of the United States
October Term, 1987
ty
MARTIN HARRIS, et al.,
Plaintiffs-Respondents,
v.
IRENE PERNSLEY, et. al.,
Defendants-Respondents,
RONALD D. CASTILLE, m
District Attorney of Philadelphia County,
Proposed Intervenor-Petitioner.
ra’
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
ra’
Vv
GarELe McLavuGHuin BartTHoLp
Deputy District Attorney
(Counsel of Record)
Laurie Macip
Assistant District Attorney
Saran B. VANDENBRAAK
Chief, Civil and Exceptional Litigation
Ronatp EIsENBERG
Chief, Appeals Unit
WituiaM G. Cuapwick, JR.
First Assistant District Attorney
Counsel for Ronald D. Castille,
District Attorney of
Philadelphia County
Office of the District Attorney
1421 Arch Street
Philadelphia, Pennsylvania 19102
Telephone: (215) 686-5700
September 11, 1987
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831
>,
TABLE OF CONTENTS
Opinion, Harris v. Pernsley 1, Third Circuit
GAG ane ed ar aL Seaete BANERE Oo rnae SNOUT ICN Sue App.
Opinion, Harris v. Pernsley I, Third Circuit
RN a ile App.
Opinion, Pernsley v. Harris, United States
Supreme Court, dissent from denial of cer-
|, ROSIE AEN a ero L eee E IE ERR oe App.
Memorandum and Order, Harris v. Pernsley
IT, District Court, December 30, 1986, deny-
ime mouon te intervené App.
Order, Harris v. Pernsley II, District Court,
December 30, 1986, approving consent de-
eee RSS chee MERE DLS Oc PUD eNO Ee REO OOO App.
Memorandum and Order, Harris v. Pernsley
II, District Court, February 19, 1987, deny-
I iil chs res aiccscaceninac calusictcdscaaninanoaee App.
Order, Harris v. Pernsley II, Third Circuit,
March 6, 1987, gramtimg Stary ...cccccseccecscsssoceeeneeoe App.
Opinion, Harris v. Pernsley IJ, Third Circuit
ete GORE ERI Aaer ie PAV OD Nan eR RO OE App.
I eit cles ain baciidatcnineiabenmiemenes App.
Order, Harris v. Pernsley II, Vhird Circuit,
June 9, 1987, granting stay continuance ........ App.
Order and Opinion, Harris v. Pernsiey II,
Third Cireuit en banc, denial of petition
for rehearing, dissenting opinion, order
I ia retest eins tennlcinessies App.
Order, Castille v. Harris, United States Su-
preme Court, July 23, 1987, temporary stay
Dg GARR Nalin ab tee res Sard bene dk UL eA Se a MOR SER App.
Page
l- 32
33- 40
41- 44
69- 76
77- 99
100
101-146
147-149
150
151-155
156-158
il
TABLE OF CONTENTS—Continued
Page
Order, Castille v. Harris, United States Su-
preme Court, August 3, 1987, stay denied ... App. 159
Excerpts from brief filed by municipal defen-
dants-respondents in Jackson v. Hendrick ..App. 160-171
Federal — of Civil Procedure 24(a) and
24(b) . ee MRR a VAP! MS BRE ose eT App. 172
Pa.Stat.Ann., tit. 16, 4 1402(a) (Purdon
Supp. 1987) . PM A REN a et I: App. 172
Pa.R.Crim.P., Rule 4004, 42 Pa.C.S.A. ............ fed 173
Pa.Stat.Ann., tit. 61, § 314 (Purdon 1964) ........ pp. 173-174
Pa.Stat.Ann., tit. 61, § 331.26 (Purdon 1964) App. 174-175
HARRIS, Martin a/k/a Carmichael, Arthur, Prison
Number 80-16203, Anthony, Albert—# 81-16129, McCrea,
Orlando X.—# 81-14560, Moore, Andre—# T-3223, Hans-
ford, Frank L., Jr—# T-3219 T-3765, Glenn, Tyrone—
# 80-11017, Royster, Carlos—# 81-13076, Abdullah, Amin
—# 82-00012, Muhammad, Khalid Allah—z# 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 Phila-
delphia, Royal L. Sims, Rev. Albert Campbell, Labora
Bennett, James Barber, Mark Mendel, Donald Paclova,
each individually and in his or her official capacity as a
member of the Board of Trustees of the Philadelphia Pri-
son System, David S. Owens, individually and in his offi-
cial 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 Man-
aging 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 Gen-
eral Counsel for the Commonwealth of Pennsylvania, and
Ronald J. Marks, individually and in his official capacity
as Commissioner of the Pennsylvania Bureau of Corree-
tions, Appellees.
No. 84-1039.
United States Court of Appeals, Third Circuit.
Argued Sept. 10, 1984.
Decided Feb. 22, 1985.
App. 1
a
App. 2
Rehearing and Rehearing In Bane
Denied March 21, 1985.
David Richman (argued), Richard M. Bernstein,
Philip H. Lebowitz, Pepper, Hamilton & Scheetz, Phila-
delphia, Pa., for appellants.
Leroy S. Zimmerman, Atty. Gen., Carl Vacearo (ar-
gued), Deputy Atty. Gen., Philadelphia, Pa., for appellee
Marks.
John P. Krill, Deputy General Counsel, Comm. of
Pa., Harrisburg, Pa., for appellee Waldman.
Richard J. Gold (argued), Divisional Deputy City
Sol., August V. Sellitto, Asst. City Sol., Philadephia, Pa.,
for appellees Pernsley, Simms, Campbell, Bennett, Bar-
ber, Mendel, Padova, Owens, Daughen, Johnson, Green &
the City of Philadelphia.
Before GIBBONS and GARTH, Circuit Judges, and
TEITELBAUM, District Judge.*
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 original-
ly filed a pro se complaint which was later amended after
* Hon. Hubert |. Teitelbaum, Chief Judge, United States Dis-
trict Court for the Western District of Pennsylvania, sitting
by designation.
App. 3
the appointment of counsel. The trial court dismissed at
the pleading stage because of the possibility of relief un-
der the terms of a judgment rendered in a case pending
in the Court of Common Pleas of Philadelphia County.
We reverse.
‘&
Proceedings in the Trial 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 equit-
able relief on federal constitutional grounds. That court
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
Comonwealth 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 Com-
mon 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 wpon a series
App. 4
of consent decrees dealing with various methods for al-
leviating the overcrowded conditions of the Philadelphia
prisons. The Common Pleas class action did not seek dam-
ages, and the remedial decrees made no provision for in-
dividual relief for any inmate. The defendants in that
action are officials of Philadelphia, not of the Common-
wealth. On at least one occasion those Philadelphia de-
fendants 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 dam-
ages and injunctive relief for themselves and for a class
consisting of all persons who have been inmates of Holmes-
burg since that date, and on behalf of 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-
ments, in violation of 42 U.S.C. § 1983 (1982). The amend-
ed complaint acknowledges the provisions of the several
litigated and consent decrees which have been entered by
the Comon 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 physi-
eal violence by other inmates. They allege further that
each of the defendants, with full knowledge of the ex-
App. 5
istence 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 Philadel-
phia officials directly responsible for Holmesburg’s opera-
tion, as well as two state officials, Jay C. Waldman, Gen-
eral Counsel for the Comonmwealth and Ronald J. Marks,
Commissioner of the Pensylvania Bureau of Corrections.
The Commonwealth defendants are alleged to be respon-
sible for establishing standards for county jails and pri-
sons, and to have made decisions respecting classifica-
tion of prisoners which resulted in the overcrowding at
Holmesburg.
The Philadelphia and the Comonwealth defendants
moved to dismiss under Fed.R.Civ.P. 12(b)(6).! The trial
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 judi-
cata 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.
(Continued on following page)
App. 6
court granted these motions. The court ruled that as
against the Philadelphia defendants 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.
Ul.
Res Judieata
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
(Continued from previous page)
2. The action against defendant Waldman is barred by
the eleventh amendment to the United States Consti-
tution.
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 tran-
script 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.
App. 7
are collaterally estopped either factually or legally—
barred by issue preclusion—because of any detedmination
made by the Court of Common Pleas. See Restatement
(Second) of Judgments § 27 (1982). Indeed, quite the op-
posite 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) cf 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 res judicata
—¢claim preclusion—from asserting any claim which mighit
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 ,udgment 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., — US.
—, 104 S.Ct. 892, 79 L.Ed. 2d 56 (1984); Allen v. McCurry,
449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). But
while federal courts are directed by statvte to look to state
law for determination of the judgment preclusive effects
of state judgments, state law itself is subject to the limi-
tations of due process. Thus there are due process limita-
tions upon the authority of states to attempt to bind by
r The plaintiffs plead that they are entitled to rely upon
the decree in the Common Pleas action. Amended Com-
plaint, | 50, App. 36.
App. 8
judgment non-participants in the underlying state lawsuit.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S.Ct.
2140, 2151, 40 L.Md.2d 732 (1974) ; Mullane v. Central Han-
over Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865
(1950); Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85
L.Ed. 22 (1940). The position of the Philadelphia de-
fendants 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 Pensylvania 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, ‘‘[i]t is well settled that for the doe-
trine of res judicata to prevail there must be a concur-
rence 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 Mutual Ins. Co. v.
Williams, 463 Pa. 567, 345 A.2d 664, 668 (1975). We as-
sume 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 i no identity of causes of action between
the plaintiffs in the 1971 lawsuit and this one. No mem-
App 9
ber 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 Pennsyl-
vania judgment is not conclusive on matters which by
reason of the nature of the ease could not have been adju-
dicated. 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 748, cert. denied, 348 U.S. 822, 75
S.Ct. 36, 99 L.Ed. 648 (1954). Indeed it could not have
been anticipated in 1971 that the class members now be-
fore 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 de-
fendants to be barred. See Greenfield v. Villager Indus.,
Inc., 482 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 fi-
duciary obligations to unknown votential 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 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.
App. 10
The trial court erred, therefore, in holding that res
judicata—claim preclusion—bars the instant action
against the Philadelphia defendants.
ITI.
Eleventh Amendment
The Commonwealth defendants, Waldman and Marks,
contend that the action against them for either in-
junctive relief or damages is barred by the eleventh
amendment. The claims asserted against them are predi-
cated upon alleged violations of the Constitution. They
are charged with individual acts taken urder color of state
law. No payments are sought from the Commonwealth
Treasury. Compare Edelman v. Jordan, 415 U.S. 651, 94
S.Ct. 1347, 39 L.Ed.2d 662 (1974). No relief is sought
against them under state law. Compare Pennhurst State
School & Hospital v. Halderman, — U.S. —, 104 S.Ct. 900,
79 L.Ed.2d 67 (1984). They remain subject to actions for
injunctive relief, Ex Parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), and to actions for money dam-
ages, except to the extent that they may enjoy official im-
munity.
IV.
Official Immunity
Plaintiffs claim Waldman and Marks made decisions
which allegedly contributed to the unconstitutional condi-
tions 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 accepted their argument that the official im-
oateet
App. 11
munity holding in Harlow v. Fitzgerald, 457 U.S. 800, 815-
19, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 306 (1981) barred
the plaintiffs’ claim for monetary relief because the com-
plaint 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 cor-
rectly so assumed and relied on different grounds for dis-
missing 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 im-
munity.
Judging the complaint by the standard appropriate
under Rule 12(b)(6), we must assume that the plain-
tiffs could prove that Waldman and Marks, while
knowing that the overcrowded conditions at Holmesburg
had already been adjudicated to be violations of the Con-
stitution, took steps under color of state law which in-
creased the inmate population and aggravated the viola-
tions. The acts complained of and the resulting conse-
quences are set out quite specifically. A Rule 12(b) (6) dis-
missal of the complaint against Waldman and Marks for
money damages, therefore, was an error of law.
App. 12
V.
Abstention
As an alternative justification for dismissing the com-
plaint the trial court relied on what it referred to as
‘‘{t]he doctrine of abstention [which] permits a federal
court in its discretion to decline or postpone the exercise
of its jurisdiction.’’ App. 14. Identifying four 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, 61 S.Ct.
643, 85 L.Ed. 971 (1941) federal courts may postpone adju-
dication 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 issue.’’ App. 14. The
defendants point to no potentially preclusive state law is-
sue. 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 sig-
nificant importance to the state. See Burford v. Sun Oil
Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943);
Baltimore Bank for Cooperatives v. Farmers Cheese Coop.,
083 F.2d 104, 109 (38d Cir.1978). The only regulatory
scheme to which the defendants could point was the decree
App. 13
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 ease; the court ae-
tion in Jackson was premised on federal not state con-
stitutional rights.’’ App. 15 (footnote omitted). No spe-
cial competence is claimed for the Court of Common Pleas
in the administration of decrees aimed at vindicating vio-
lations 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 would be
called on to restrain the enforcement of a state court pro-
ceeding in which the state had a significant law enforce-
ment interest. See Huffman v. Pursue, Ltd., 420 U.S. 592,
95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Noting
that ‘‘[t]here are no state criminal proceedings or nuis-
ance proceedings antecedent to a criminal proceeding in-
volved here,’’ App. 15, it declined to dismiss on the auth-
ority 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 pri-
vately-initiated one, the state’s interest in that proceed-
ing 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 im-
proper in a challenge to constitutionality of tax sales of
property when state action to quiet title was brought by
App. 14
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 con-
stitutional 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 auth-
ority of Younger v. Harris and its progeny.
Finally, citing Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 &.Ct. 1236, 47
L.Ed.2d 488 (1976), the trial court identified a fourth
category of eases which gave it discretion to decline to ex-
ercise jurisdiction for reasons of wise judicial adminis-
tration when a state court had concurrent jurisdiction over
a pending action. App. 15. See also Arizona v. San Carlos
Apache Tribe of Arizona, 463 U.S. 545, 103 S.Ct. 3201, 77
L.Ed.2d 837 (1983). The court concluded that, in the in-
terest of wise judicial administration, all claims against
all parties should be dismissed.
Before addressing the trial court’s treatment of Colo-
rado River, we note the context in which the ruling was
made. We must take as true the allegations of the ecom-
plaint that conditions in Holmesburg, in 1982 violated
the eighth and fourteenth amendments. We must take as
3. The defendants do not contend that the plaintiffs have
failed to exhaust state administrative remedies for prisoner
grievances which have been approved by the Attorney Gen-
eral 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. § 1997e(a)(1) (1982)). So far as the record dis-
closes, Pennsylvania has not obtained approval for any
such remedies.
_
App. 15
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 Pleas 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 parel-
lel 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 complaiut alleges that inmates placed in Holmesburg
since April 30, 1982 continue to suffer injury from ongo-
ing 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 fed-
eral court to decline to exercise jurisdiction established
by Congress. McClellan v. Carland, 217 U.S. 268, 281-82,
30 S.Ct. 501, 504, 54 L.Ed. 762 (1910). Moreover a state
court having jurisdiction over a class action may not en-
join a parallel class action in a federal court. Donovan v.
City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409
(1964). These holdings recognize the deference which fed-
eral courts owe to the legislative deterimnation by Con-
gress that plaintiffs have been given a choice of forums.
See Meredith v. Winter Haven, 320 U.S. 228, 236, 64 S.Ct.
7,11, 88 L.Ed. 9 (1943).
The Supreme Court has recognized a narrow excep-
tion to the basic rule, where it has been able to identify, in
other Congressional legislation, a tempering of the policy
of enforcing the plaintiff’s choice of a federal forum in
favor of a policy of avoiding duplicative and inconvenient
litigation. In Colorado River Water Conservation District
il
App. 16 i
v. United States, supra, the Court found such a modifica-
tion in the McCarren Amendment, c. 651, Title IT, § 208(a)-
(c), 66 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 Me-
Carren amendments, deference to a parallel state pro-
ceeding was appropriate, since such deference would a)
provide a single court with exelusive 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 announe-
ing this narrow parallel litigation exception to the basie
rule, however, the Court took pains to note ‘‘the virtually
unflagging obligation of the federal courts to exercise
the jurisdiction given them.’’ Id. 424 U.S. at 817, 96 S.Ct.
at 1246, citing England v. Medical Examiners, 375 U.S.
411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964). Under
Colorado River a district court may dismiss only upon ‘‘a
earefully considered judgment’? which ‘‘[o]nly the clear-
est of justifications will warrant. ...’’ 424 U.S. at 818-19,
96 S.Ct. at 1246-47.
The teaching of the Colorado River case is that only
‘‘exceptional’’ circumstances will permit a federal
eourt to refrain from exercising its jurisdiction for
reasons of wise judicial administration due to the
presence of a concurrent state court proceeding.
17 C. Wright, A. Miller & EF. Cooper, Federal Practice and
Procedure § 4247 (1978) p. 519.
Recently the Supreme Court has reconfirmed that the
parallel litigation exception to the basie rule of McClellan
“apenas
App. 17
v. Carland is a narrow one requiring the clearest justi-
fication. In Moses H. Cone Memorial Hospital v. Mercury
Construction Oorporation, 460 U.S. 1, 103 S.Ct. 927, 74
L.Ed.2d 765 (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. Jd. 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 Bren-
nan wrote:
[wle emphasize that our task in cases such as this
is not to find some substantial reason for the exercise
of federal jurisdiction by the district court; rather,
the task is to ascertain whether there exist ‘‘excep-
tional’’ cireumstanees, the ‘‘clearest of justifica-
tions,’’ that ean suffice under Colorado Rwwer 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.
The test for application of the parallel litigation ex-
ception set forth in Colorado River and reiterated in Moses
H. Cone cannot be satisfied in this instance. The cases are
App. 18
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 con-
cluded, and thus parallel litigation on liability even for in-
junctive 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 judg-
ment. The state court is not a more convenient forum
since both courts are located in the same eity, equally ac-
cessible to Holmesburg. No federal statute suggests a
congressional policy tempering in any way the basie policy
of affording plaintiffs a choice of forum. Finally, of spe-
cial significance in light of Moses H. Cone, the law applied
in 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 allevia-
tion of ongoing violations of the constitution, is not such
an exceptional circumstance as to relieve the federal courts
of ‘‘the virtually unflagigng obligation . .. to exercise the
jurisdiction given them.’’ 424 U.S. at 817, 96 S.Ct. at 1246.
Thus we cannot affirm the dismissal of the complaint on
the ground relied on by the trial court.
vu
Conelusion
The judgment dismissing the complaint on the de-
fendants’ Rule 12(b)(6) motion will be reversed, and the
case remanded for furthet proceedings.
GARTH, Circuit Judge, dissenting:
The majority, in virtual defiance of Supreme Court
teachings that federal courts should not intrude in vital
ae
App. 19
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 Philadel-
phia’s prison system and conditions and (2) that the Penn-
sylvania courts are vindicating all federal constitutional
rights by appropriate state court actions.
I cannot agree with the majority that the state’s in-
terests, which are so very vital in the area of prison ad-
ministration, must be subordinated to federal court deter-
minations even while the Commonwealth is expending
every effort to correct the conditions that have been chal-
lenged. I therefore dissent.
L
My disagreement with the majority is a basie one.
I 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
both state and federal constitutional requirements.
The pleadings clearly reveal that since March 15, 1976
the Court of Common Pleas has not only imposed corree-
tive measures on the Commonwealth’s prison administra-
tion, 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 proceed-
App. 20
ings is, so far as I am concerned, as inappropriate and
wrong as it is for a federal court to run state hospitals, see
Pennhurst State School & Hospital v. Halderman, — U.S.
—, 104 8.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Youngberg v.
Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (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 federa] eon-
stitutional 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 argu-
ment that canont 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 Com-
mon Pleas in Philadelphia County, on behalf of them-
selves and all others confined in Philadelphia prisons,
seeking injunctive relief from prison overcrowding in vio-
lation of both state an? federal constitutional provisions.
The Court of Common Pleas found violations of both the
Pennsylvania and United States Constitutions and en-
tered 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 is-
sued on March 15, 1976, establishing maximum prison
population limits.
App. 21
Since then, the parties have entered a series of con-
sent decrees governing administration of the prisons and
designed to alleviate the conditions found violative of
the eighth amendment of the United States Constitution
and Pensylvania constitutional provisions. The most re-
eent such remedial order prior to the district court’s dis-
missal of the instant action 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 aetion in
the federal district court for the Eastern District of Penn-
sylvania 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 Prison.’’ None of the named plaintiffs were
incarcerated before April 30, 1980; thus, none of the plain-
tiffs were prisoners during the time the 197] action was
initiated in state court. Nevertheless, plaintiffs, in their
amended complaint, allege that the entire current plaintiff
class is included in the 1971 elass.
The current class action alleges that conditions in the
Philadelphia prison system remain in violation of the
<: 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.
App. 22
eighth amendment, primarily due to continued overerowd-
ing 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 soueht against
state officials, Waldman and Marks, for their actions certi-
fying the prisons as suitable for prisoners who were sen-
tenced to maximum terms of vreater than six months and
less than five years.
Both the City and State defendants filed motions to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The disiriet court granted these motions to dis-
miss on several grounds. First, as to the City defendants,
it found that the plaintiff class’ claims were barred by the
doctrine of res judicata, their claims haviye 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 to the state court. It further decided
that such abstention required dismissal of this case. Third,
as to the State defendants, the district court found plain-
tiffs’ claims to be barred by both the eleventh amendment
protection of state sovereign immunity and qualified of-
ficial immunity.
I 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
2. Colorado River Conservation Dist. v. United States,
424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
App. 28
and Waldman, and its holding that the brand of abstention
announced in Colorado River Water Conservation District
v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d
483 (1976) does not apply to this case. | part company with
the majority, however, in its holding that } ounger v. Har-
ris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) does
not authorize abstention in this case. Accordingly, I 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 re-
main unresolved by the state court’s action.
iif.
This court has recently approved a form of Younger
v. Harris abstention that has the effect of harmonizing both
federal and state remedies. Younger v. Harris, 401 U.S.
37, 91 S.Ct. 746, 27 L.idd.2d 669 (1971), established a prin-
ciple of abstention where federal adjudication would dis-
rupt an ongoing state criminal proceeding. In Moore v.
Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979),
the Supreme Court extended }ounger abstention to purely
civil proceedings, applying the doctrine to bar federal court
adjudication of a child custody claim where state court
custody proceedings were already in progress. Kven though
Sims was challenging the procedures used in the state pro-
ceedings, 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 absence 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
App. 24
Huffman v. Pursue, Ltd., 420 U.S. 592/95 S.Ct. 1200,
43 L.Ed.2d 482] (1975) ; the basic econcern—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.
Td.:at 423, 99 S.Ct. at 2377.
This court then applied Younger abstention to state
administrative proceedings in Williams v. Red Bank Board
of Education, 662 F.2d 1008, 1009 (3d Cir.1981). We have
required that Younger abstention in such civil proceedings
be based on the presence of weighty state interests. See
Willams at 1017. I 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 pay great
deference to the States’ weighty interest in administering
their own prison systems. Sce generally Rhodes v. Chap-
man, 452 U.S. 387, 101 S.Ct. 2892, 69 L.Ed.2d 59 (1981) ;
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447
(1979) ; Union County Jail Inmates v. DiBuono, 713 F.2d
984 (3d Cir. 1983). In light of the Supreme Court’s ad-
monitions pertaining to vital state interests, we held in
Williams, a ease which concerned school disciplinary pro-
ceedings, that:
[O]ur 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 ade-
quate to vindicate federal claims and reflect strong
and compelling state interests, the district court, pur-
suant to Younger, should abstain.
662 F.2d at 1017.
ween
App. 25
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 com-
pensatory 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 pro-
ceedings in order to provide these remedies, such as con-
stitutional damages, which were available only in the fed-
eral action. Recognizing that Williams must seek relief
in federal court which was not awailable 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 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
3. Similarly, in Scott v. Germano, 381 U.S. 407, 85 S.Ct.
1525, 14 L.Ed.2d 477 (1965), the diistrict court hearing the
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d
506 (1964) voting reappointment case on remand was di-
rected to vacate its judgment and stay its proceedings in
order to give pending state court proceedings an oppor-
tunity to implement its own remedial plain. See also,
Halderman v. Pennhurst State Schoo! and Hospita/, 673 F.2d
647, 662-671 (1983) (Garth, J. concurring) (federal judicial
oversight of state remedial plan preferable to appointment
of federal master), rev'd on other grounds, — U.S. —, 104
S.Ct. 900, 908, 79 L.Ed.2d 67 (1984).
App. 26
conditions and have been issuing remedial orders since at
at least March 15, 1976. They have done so after considera-
tion of prison conditions which were alleged to violate both
federal and Pennsylvania constitutions. Thus, the Penn-
sylvania 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 pro-
visions of the consent decree which had been entered. The
complaint further recites that there have been four addi-
tional consent decrees that have been approved by the Court
of Common Pleas as late as December 21, 1982. Moreover,
as recently as June 29, 19883—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.
I recognize that obiter dictum in prior decisions of this
Court has indicated that Younger abstention would ordi-
narily not obtain where the state proceedings were insti-
tuted by a private party rather than by the state as
sovereign. See Johnson v. Kelly, 588 F.2d 1242, 1249 (3d
Cir.1978); New Jersey Education Association v. Burke,
579 F.2d 764, 767 (38d Cir.1978). Indeed, Williams itself
repeats that suggestion, and the majority in this case, re-
lying on that dictum, thereby rejects Younger (Williams)
abstention here.
While the statements in Williams, Kelly and Burke
may be said to create a presumtion against a sufficient
state interest in the pending proceedings to invoke Younger
App. 27
abstention where the pending proceedings were privately
initiated, none of these eases foreclose Younger abstention
ina ease such as this one. Walliams did not involve private-
ly initiated proceedings. Kelly found abstention inappro-
priate where the state was not a party to the pending pro-
ceedings. 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 applica-
tion of the Williams abstention doctrine.
Moreover, to put the issue of ‘‘ private initiation’’ com-
pletely to rest, it must be remembered that the state pro-
ceeding was not recently instituted but has long since
passed the hability determination and is presently in the
enforcement state. As I have noted, the original decree
finding liability was entered June 7, 1972, nearly thirteen
years ago, and has been followed since then by other de-
crees and orders of enforcement. Thus, the present nature
of the state proceeding is one that has for all practical
purposes lost any ‘‘privately initiated’’ character. The
Commonwealth seeks no more than to enforce in its own
courts, those decrees long since entered by its own courts.
Thus, to reject Wililams abstention on the ground that it
does not apply where the suit has been privately initiated,
is to ignore both the jurisprudential and prudential char-
acteristics of the present state proceedings. In the present
ease, I am entirely satisfied that Pennsylvania’s weighty
interest in adjudicating through its own courts a broad
App. 28
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 de-
termination 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 improvident 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 im-
position of federal remedies, is as appropriate here as we
found it to be in Williams, supra.
IV.
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 inearcer-
ate them under unconstitutional conditions, they also sought
money damages, costs, and attorneys fees. They sought in-
junctive relief and money damages against the two state
defendants, Waldman and Marks, as well, based upon thar
actions in certifying the Philadelphia prisons as eligiHe
institutions to receive prisoners. The distriet court re-
garded the claims for money damages against the Cry
App. 29
defendants as barred by res judicata and Colorado River
abstention. I agree with the majority’s reasoning and
holding that the district court erred in applying these doc-
trines to the circumstances of this case.
I 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 re-
verses the district court based on the fact that money dam-
ages have been sought, any cursory reading of the Com-
plaint and review of the litigational history reveals that
this is by far the most insignificant element of the plain-
tiff’s charge. What the plaintiffs seek here is pure and
simple equitable relief and they seek it on federal consti-
tutional grounds. The money damages, as I read the Com-
plaint, are incidental.
Until such time as there has been appropriate enforce-
ment 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 ease of parrellel litigation. As the majority points out,
the equitable liability has already been determined in the
state court (Maj. op. at 346) and it is the enforcement of
this liability over which the majority now seeks to assume
control.
I am not suggesting for a moment that we decline to
exercise jurisdiction. I suggest only that 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
App. 30
commence, providing always that the federal claims giving
rise to these proceedings have not been resolved.
Because I would hold that is inappropriate for a fed-
eral 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 as-
sert, 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 otbained in Wil.
liams v. Red Bank, supra, where we said,
[I]t is difficult to see how the federal court could
adjudicate Williams’ constitutional claims and _ at-
torney’s fees until after all disciplinary proceedings
have been finally completed. How could the damages
be calculated, for example, until it is known whether
4. lt is unclear from the record before us whether the
prisoners’ claims for money damages against the individual
City defendants will be resolved in the state proceedings.
Counsel for the City of Philadelphia represented at oral
argument that earlier such claims have been previously
brought and have been resolved by the Court 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. If, however, these
claims cannot be resolved in state court, resolution of these
claims by 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 (3d Cir. 1981).
App. 31
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 con-
ditions of Holmesburg prison? until the state court has had
a reasonable time to implement its remedial decrees.®
V.
Within recent weeks, this court has recognized the
vital interests that a state has in the administration of its
penal system by scheduling a case for in bane consideration
where one of the significant issues concerns abstention.
3 Among other claims, the prisoners charged in para-
graph 43 and 44 of their complaint that food was unsani-
tarily prepared and served; there was a lack of bedding,
towels, and toiletries, that there was reduced or inade-
quate access to recreational facilities, libraries, legal ma-
terials, religious services, and telephones; that visitation
rights, even of legal counsel, were impaired; and that be-
cause of overcrowding prisoners have been subjected to
physical attacks, sexual assaults, and psychological injuries.
The state defendants have also been charged, in paragraph
54, with having classified the Philadelphia prisons as eli-
gible to receive prisoners notwithstanding the unconstitu-
tional conditions alleged to exist at Holmesburg.
6. | recognize that state proceedings have continued for
some years. However, the state courts have not been in-
attentive to the claims of the prisoners. As | observed
earlier in this opinion, remedial orders have been entered
both prior and subsequent to the institution of the instant
action, e.g., in June 1983, April 1984, and June 1984, see
text supra and accompanying note 1. Moreover, the nature
of the conditions complained of is such that remedies may
require long term supervision. Thus, the record does not
disclose either an unwillingness on the part of the state
court, nor an inability on its part, to rule on or correct the
subject of the prisoners’ complaint.
App. 32
Georgevich v. Strauss, No. 84-5194 (3d Cir. Jan. 9, 1985)
(order listing case in bane). Georgevich involves the man-
ner 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 constitional
requirements.
I find no distinction between the importance of the
comity issue presented in this ease and the importance of
the comity issue, which is one of the issues presented in
Georgevich. In the present case the majority opinion re-
quires that a federal court override a state’s enforcement
of its own court orders, which orders have as their objee-
tive, compliance with the federal, as well as the state, con-
stitutions. I suggest that if Georgevich warrants the at-
c
tention of a full court, even more so does this ease.
I 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 remain-
ing at the conclusion of the state action.
App. 33
HARRIS, Martin a/k/a Carmichael,
Arthur Prison Number 8016203, et
al., Appellants,
v.
Irene PERNSLEY, individually and in
her official capacity as Welfare Com-
missioner of the City of Philadelphia,
et al., Appellees.
No. 84-1039.
United States Court of Appeals,
Third Cireuit.
March 21, 1985.
SUR PETITION BY MARKS AND
WALDMAN FOR REHEARING
Before ALDISERT, Chief Judge, SEITZ, ADAMS,
GIBBONS, HUNTER, WEIS, GARTH, HIGGIN-
BOTHAM, SLOVITER, BECKER, Cireuit Judges, and
TEITELBAUM, District Judge.*
The petition for rehearing filed by appellees Ronald
J. Marks and Jay C. Waldman in the above entitled case
having been submitted to the judges who participated in the
decision of this court, 755 F.2d 338, and to all the other
available circuit judges of the cireuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges
of the circuit in regular active service not having voted
for rehearing by the court in bane, the petition for rehear-
ing is denied.
* Hon. Hubert |. Teitelbaum, Chief Judge, United States Dis-
trict Court for the Western District of Pennsylvania, on
nanel rehearing only.
App. 34
Cirenit Judges ADAMS, HUNTER, WEIS, GARTH
and BECKER would grant the petition for rehearing.
Cireuit Judge ADAMS dissents from the denial of
the petition for rehearing in bane because he believes that
this case raises important questions regarding the seope
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.
SUR PETITION BY CITY APPELLEES
FOR REHEARING
The petition for rehearing filed by City Appellees in
the above entitled case having been submitted to the judges
who participated in the decision of this court and to all
the other available circuit judges of the circuit in regular
active service, and no judge who concurred in the decision
having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having
voted for rehearing by the court in bane, the petition for
rehearing is denied.
Cireuit 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 bane 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.
_—
App. 35
GARTH, Cirenit 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 1008,
1009 (3d Cir.1981) abstention was grounded on the prin-
ciple that Federal courts should not take over, manage and
operate city or state prisons when the state courts are en-
forcing all constitutional—ineluding federal constitutional
—requirements. At the time that I dissented from the panel
opinion, I wrote:
I 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 re-
quirements.
The pleadings clearly reveal that since March 15,
1976, the Court of Common Pleas has not only im-
posed 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 I
am concerned, as inappropriate and wrong as it is
for a federal court to run state hospitals, see Penn-
hurst State School and Hospital v. Halderman, 465
U.S. 89, 104 S.Ct. (900], 908 [79 L.Ed.2d 67] (1984);
Youngberg v. Romeo, 457 U.S. 307 [102 S.Ct. 2452,
73 L.Ed.2d 28] (1982), or schools, see Williams v. Red
Bank Board of Education, 662 ¥'.2d 1008, (3d Cir.1981).
This is so particularly where the state court’s have
been strictly enforcing federal constitutional man-
dates.
App. 36
The Petition for Rehearing that followed the filing
of our opinions in Iarris pointed out that Jackson v.
Hendrick, No. 71-2437, slip op., (C.P.Phila. April 7, 1972),
which resulted in a consent deeree, affirmed by the Penn-
sylvania Supreme Court, 457 Pa. 405, 321 A.2d 603 (1974),
‘>. was originally brought as a broad challenge to condi-
tions in the Philadelphia prisons, ... including . . . over-
crowding. . . . The case extends to every detention or
prison facility within the city ... In recent years, 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 steps:
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 de-
tainees whe 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 popu-
lation caps on the existing Philadelphia prisons effee-
tive October 1984 to decrease the prison population
from 3600 to 2700 inmates.’’
City Appellees’ Petition for Reconsideration in Bane.
The record before the panel of this court did not dis-
close the State Ceurt’s activities and orders after June,
1984. The Petition for Rehearing now reveals the follow-
ing:
On October 11, 1984, after finding that the City was
in contempt because the population exceeded the court-
App. 37
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 October 11, 1984 orders. On October 17,
1984, the Chief Justice of 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’? rule which underlies all of the Jackson court’s
orders.’’
Thus, not only have the lower state courts in Pennsylvania
been actively engaged in controlling and supervising the
prison population and prison conditions of the Philadelphia
County prisons, but it now appears that effeetive November
21, 1984, the Pennsylvania Supreme Court itself has taken
over all proceedings filed in such actions. More important-
ly, the Pennsylvania Supreme Court has direeted compli-
ance with court orders concerning: (1) construction of new
facilities, (2) population caps, (3) release of prisoners,
and (4) conditions of confinement including double and
triple celling.
These are the very issues involved in the federal pro-
ceeding before us and, as the Petition for Rehearing ob-
serves, unless Williams’ abstention is ordered, the overall
state court review of the Philadelphia County prisons will
be subject to conflicting and contrary determinations re-
specting each of these vital state concerns. Accordingly,
as a mater of federal court policy, I suggest that the panel
majority has erred in its failure to acknowledge considera-
tions of comity due the Commonwealth,
App. 38
Moreover, as a matter of law, the majority’s analysis
of the Williams abstention doctrine, and its failure to apply
Williams here, is just plain wrong and indefensible. Per-
haps an incorrect analysis which leads to an unhappy re-
sult may be overlooked or tolerated in private litigation
where the siakes and the property interests are not too
high. Where, however, the result of a distorted reading
of Supreme Court and Third Cireuit precedents leads to
the very federal intrusion into state concerns that the Su-
preme Court and considerations of comity have counseled
against, then I suggest we have exceeded our functions
by far.
In this case, the Pennsylvania state courts have been
overseeing and supervising the Philadelphia County Pris-
ons since 1972. A special master is in place. Fines and
other coercive means have been employed to correct a
system that, as Chief Justice Nix of the Pennsylvania Su-
preme Court recently held, ‘‘. .. results from the fact that
past successive city administrations have avoided the in-
evitability of providing additional facilities through ra-
tionalization, dilatoriness and procrastination.’’ Jackson
v. Hendrick, No. 180 E.D.Mise. 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 Su-
preme Court that
... neither party charges this administration with tac-
tics of such dimensions. Under the present city ad-
ministration, a new facility of 650 beds is being con-
structed in the northeast section of Philadelphia. We
are advised that the excavation stage of that project
App. 39
has been completed. Discussions are being had regard-
ing 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 provi-
sions 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 wil! no longer be toler-
ated.
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 unfortunate
situation.
Under these cireumstances, I ask the question that the
majority has never sought to answer—what more, con-
sistent with Supreme Court precedent and directives,
should, or could, a federal district court do, to accomplish
what is presently underway in the Philadelphia court sys-
tem? The question which in my opinion this Court in banc
should answer is: under William, supra, why should not
the federal court bide its time until, if ever, it appears that
the stringent measures and remedies prescribed by Penn-
sylvania to vindicate federal court rights, have either
failed or are unavailing?
Indeed, in light of the current posture of the orders
which have been entered by the Pennsylvania courts, I sug-
gest that this Court in banc should also consider: what ac-
tions could a federal district court judge possibly take (a)
without upsetting and destroying a viable program de-
signed by the state courts to correct the Philadelphia pris-
on conditions and (b) without trespassing on state court di-
rectives that are presently in place and in effect.
App. 40
In my earlier dissenting panel opinion, I referred to
the fact that this court has scheduled for a full court hear-
ing another case which concerns abstention and comity con-
siderations. Georgevich v. Straus, No. 84-5194 (3d Cir.
January 9, 1985) deals with the manner in which Penn-
sylvania may parole its prisoners. The issue there is an
important one, as is the issue here. True, the abstention
issue in Georgevich differs from the abstention issue in
this case. But in both cases comity considerations are in-
volved and are paramount.
I wrote earlier, and I now write again, to urge in light
of the recent developments brought to our attention by the
Petition for Rehearing and the Pennsylvania Supreme
Court’s orders, that if Georgevich warrants the attention
of the full court of the Third Circuit, then even more so
does this case. Because a majority of this court has not
so voted, I am obliged to dissent from the court’s order
which denies rehearing.
IT would grant the Petition for Rehearin ine City
appellee.
Vetbatintis mores:
App. 41
Irene PERNSLEY et al. v. Martin Harris et al.
No. 84-1955.
Case below, 755 F.2d 338; 758 F.2d 83.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Third Circuit.
Nov. 4, 1985. The motion of respondents for leave to
proceed wm forma pauperis is granted. The petition for
writ of certiorari is denied.
THE CHIEF JUSTICE, dissenting.
For the past nine years, the prison system in Phila-
delphia has been operating under the supervision of the
Court of Common Pleas ot Philadelphia County, following
that court’s finding in 1972 that prison conditions violated
both the Pennsylvania Constitution and the Eighth Amend-
ment of the United States Constitution. Since 1976, a full-
time, court-appointed Special Master has been in place and
‘numerous remedial orders have been issued, including or-
ders requiring the building of new prison facilities and con-
tempt orders imposing over $500,000 in fines for failure to
comply with prior orders. In addition, the parties have
entered into consent decrees aimed at controlling the popu-
lation in the prison system. Beginning in 1984, the Penn-
sylvania Supreme Court assumed plenary jurisdiction over
the entire State proceeding.
The State suit commenced by the filing of a class action
in 1971 on behalf of all inmates in the Philadelphia prisons,
seeking equitable relief from alleged unconstitutional pris-
on conditions; defendants are officials of Philadelphia. In
the case now before us Respondent, an inmate who ad-
mits he is a member of the same class represented in the
App. 42
State action, brought a separate class action in the Eastern
District of Pennsylvania on behalf of all persons confined
in the Philadelphia prisons; defendants include City and
State officials. The federal complaint similarly makes
claims like those in the State suit, and asserts that the
Philadelphia prisons are overcrowded, thereby violating the
Kighth Amendment of the United States Constitution; it
seeks extensive injunctive relief and monetary damages
under 42 U.S.C. § 1983.
The District Court dismissed the equitable relief
claims sought in this second class action on the alternative
grounds of res judicata, or abstention under the doctrine
of Colorado River Water Conservation District v. United
States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ;
it dismissed the damage claim on grounds of sovereign and
qualified official immunity. A divided Court of Appeals
for the Third Circuit reversed, rejecting each of the Dis-
trict Court’s holdings. 755 F.2d 338. In his dissenting opin-
ion, Judge Garth agreed that while Colorado River did not
support abstention, lounger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971), mandated it:
I 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 both state and federal constitutional
requirements. 755 F.2d, at 347.
Rehearing was denied over two dissents. 758 F.2d 83.
Respondents essentially ask the federal courts to
duplicate the on-going State court regulation of the Phila-
delphia prison system. The District Court recognized that
WR Netw occens,
App. 43
the substantial and ongoing State court proceedings in-
volve an important State interest, namely, the administra-
tion of a prison system. The Court of Appeals neverthe-
less found Younger abstention restricted to pending State
criminal or quasi-criminal proceedings initiated by the
State. Our cases, however, recognize that ‘‘[t]he poli-
cies underlying Younger are fully applicable to noncrim-
inal judicial proceedings when important state interests
are involved.’’ Middlesex County Ethics Committee v.
Garden State Bar Association, 457 U.S. 423, 482, 102 S.Ct.
2515, 2521, 73 L.Ed.2d 116 (1982). See also Moore v. Sims,
442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994
(1979) (the Younger doctrine is ‘‘fully applicable to civil
proceedings in which important state interests are in-
volved’’).
The Younger doctrine is rooted in the concept of
comity, because
interference with a state judicial proceeding prevents
the state not only from effectuating its substantive
policies, but also from continuing to perform the sep-
arate function of providing a forum competent to vin-
dicate any constitutional objections interposed against
those policies. Huffman v. Pursue, Ltd., 420 U.S. 592,
604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975).
There is no question that the State is a party to the
ongoing State proceedings and that important State polli-
cies are implicated in the management of the county prison
system. The State courts continue to exercise comprehen-
sive jurisdiction over the prison system’s administration
through use of a Special Master, by holding hearings, and
by issuing remedial orders and ordering fines. Should the
District Court exercise its equitable powers as sought in
App. 44
this second suit, the Philadelphia prisons may thus become
subject to potentially conflicting and contrary determina-
tions as to the appropriate remedy for the alleged uncon-
stitutional conditions. Although plaintiffs here addition-
ally seek damages, there is no bar to the assertion of that
claim in the State proceedings. So long as plaintiffs have
an opportunity to raise their federal claims in the State
action, ‘‘[n]o more is required to invoke Younger absten-
tion.’’ Juidice v. Vail, 480 U.S. 327, 337, 97 S.Ct. 1211,
1218, 51 L.Ed.2d 376 (1977).
I would grant the writ of certiorari and reverse the
Court of Appeals judgment.
Justice REHNQUIST and Justice O°’ CONNOR would
grant certiorari.
App. 45
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS, ALBERT CIVIL ACTION
ANTHONY, ORLANDO X.
McCREA, TYRONE GLENN,
CARLOS ROYSTER, AMIN
ABDULLAH, KHALID ALLAH
MUHAMMAD, and ARNOLD
FURTICK, CHARLES OAKES,
EMANUEL GARDNER
Vv.
)
)
)
)
)
)
)
)
)
)
)
IRENE PERNSLEY, individually )
and in her official capacity as )
Commissioner of the Department _ )
of Human Services of the City of )
Philadelphia, ROYAL L. SIMS, _ )
REV. ALBERT CAMPBELL, )
LABORA BENNETT, JAMES )
BARBER, MARK MENDEL, )
DONALD PADOVA, each individ- )
ually 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, )
GUETON CURIONKE, individually)
and in his official eapacity as )
Warden of Holmesburg Prison, )
PHILLIP DUKKES, individually — )
and in his official capacity as )
Warden of the Detention Center, _ )
JOHN DAUGHEN, individually — )
and in his official eapacity as )
Warden of the House of )
Corrections, RODNEY D. )
App. 46
JOHNSON, individually, LEO C.
BROOKS, individually, JAMES
S. WHITE, individually and in
his official capacity as Managing
Director of the City of
Philadelphia, WILLIAM J.
GREEN, individually, HON.
WILSON GOODE, 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 Common-
wealth of Pennsylvania,
RONALD J. MARKS, individually,
GLEN JEFFES, individually and
in his official capacity as Commis-
sioner of the Pennsylvania
Department of Corrections
ORDER
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
NO. 82-1847
AND NOW, this 30th day of December, 1986, upon con-
sideration of the Motion of District Attorney Ronald D.
Castille to Intervene as a Party Defendant, the memo-
randa in objection thereto, and for the reasons stated in
the foregoing Memorandum, it is ORDERED that said
Motion is DENIED.
/s/ Norma L. Shapiro
es
App. 47
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS, ALBERT CIVIL ACTION
ANTHONY, ORLANDO X.
MceCREA, TYRONE GLENN,
CARLOS ROYSTER, AMIN
ABDULLAH, KHALID ALLAH
MUHAMMAD, and ARNOLD
FURTICK, CHARLES OAKES,
EMANUEL GARDNER
Vv.
)
)
)
)
)
)
)
)
)
IRENE PERNSLEY, individually )
and in her official capacity as )
Commissioner of the Department _ )
of Human Services of the City of )
Philadelphia, ROYAL L. SIMS, _ )
REV. ALBERT CAMPBELL, )
LABORA BENNETT, JAMES )
BARBER, MARK MENDEL, )
DONALD PADOVA, each individ- )
nally 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, )
GUETON CURIONE, individually )
and in his officig! capacity as )
Warden of Holmesvurg Prison, )
PHILLIP DUKES, individually _ )
and in his official capacity as )
Warden of the Detention Center, )
JOHN DAUGHEN, individually _ )
and in his official capacity as )
Warden of the House of )
Corrections, RODNEY D. )
App. 48
JOHNSON, individually, LEO C. _ )
BROOKS, individually, JAMES _ )
S. WHITE, individually and in )
his official capacity as Managing)
Director of the City of )
Philadelphia, WILLIAM J. )
GREEN, individually, HON. )
WILSON GOODE, individually )
and in his official eapacity as )
Mavor of the City of Philadelphia, )
CITY OF PHILADELPHIA, )
JAY C. WALDMAN, individually )
and in his official capacity as )
General Counsel for the Common-_ )
wealth of Pennsylvania, )
RONALD J. MARKS, individually, )
GLEN JEFFES, individually and)
in his official capacity as Commis-_ )
sioner of the Pennsylvania )
Department of Corrections )
NO. 82-1847
MEMORANDUM AND ORDER
NORMA L. SHAPIRO, J. DECEMBER 30, 1986
In this civil rights action concerning conditions of con-
finement in City of Philadelphia penal institutions, the Dis-
trict Attorney for Philadelphia, Ronald D. Castille, has
moved to intervene as a party-defendant. The motion is
opposed by the plaintiff-prisoner class and by ‘‘the City
defendants.’*! Defendants Waldman, Marks, and Jeffes
have neither opposed nor supported Mr. Castille’s motion.
An evidentiary hearing and argument were held on October
1. The term City defendants refers to all defendants rep-
resented by the City Solicitor. The group includes all defen-
dants except Waldman, Marks, and Jeffes.
s
App. 49
10, 1986, October 27, 1986, and November 14, 1986.2 On
December 11, 1986, the court stated from the Bench its
opinion that the District Attorney was not entitled to in-
tervene as of right and the petition for permissive inter-
vention should not be allowed but that the court would
permit the District Attorney to appear and object to the
proposed settlement agreement. Accordingly, the motion
of the District Attorney is now denied of reeord for the
reasons stated.
This action was commenced by the filing of a pro se
complaint and request to proceed in forma pauperis by
ten inmates in Holmesburg Prison on behalf of them-
selves and all other persons similarly situated. Plaintiffs’
action, pursuant to 42 U.S.C.A. § 1983 (West 1981), al-
leged that the conditions of confinement in Holmesburg
Prison violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. Plaintiffs sued the
Commissioner of the Department of Human Services of
the City of Philadelphia, the members of the Board of
Trustees of the Philadelphia Prison System, the Super-
intendent of the Philadelphia Prisons, the Warden of
Holmesburg Prison, and the Medical Director of the Phil-
adelphia Prisons, in their individual and official capacities.
Leave to proceed in forma pauperis was granted and coun-
z In his supplemental brief in support of motion to in-
tervene, the district attorney, citing Adams v. Baldwin County
Board of Education, 628 F.2d 895, 897 (5th Cir. 1980), asserted
the right to an evidentiary hearing on the issue of interven-
tion. Under the law of this circuit, the District Attorney was
not entitled to such a hearing but nevertheless the court
chose to make the factual determination of timeliness on
as full a record as possible. This memorandum constitutes
any findings of fact and conclusions of law required by this
hearing.
App. 50
sel appointed. Plaintiffs then filed an amended complaint
adding as defendants the City of Philadelphia, the Man-
aging Director of the City of Philadelphia, the Mayor of
the City of Philadelphia, the Commissioner of the Penn-
sylvania Bureau of Corrections and General Counsel of
the Commonwealth of Pennsylvania, in their individual and
official capacities. The Medical Director of the Philadel-
phia Prisons was dropped as a defendant. All defendants’
motions to dismiss were granted on December 30, 1983
on two grounds: res judicata and abstention, both of
which were related to litigation pending in the state courts.
In February, 1971, five inmates of the Philadelphia
prison system instituted Jackson v. Hendrick, a class ac-
tion in equity in the Court of Common Pleas of Philadel-
phia County, Pennsylvania, to attack the constitutionality
of their conditions of confinement and request injunctive
relief against prison and city officials and the City of
Philadelphia. On April 7, 1972, a three-judge court held
that conditions in the Philadelphia County prisons vio-
lated the rights of inmates under, inter alia, the United
States and Pennsylvania Constitutions; the decree nisi
appointed a Prison Master to administer the court’s cor-
rective decree. On June 7, 1972, the decree became final;
it was later affirmed by the Pennsylvania Supreme Court.
Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974).
The three-judge state court retained jurisdiction and con-
tinued to issue remedial orders and approve consent de-
crees entered into by the parties.2 One order established
3. On January 16, 1987, the Pennsylvania Supreme Court
assumed extraordinary jurisdiction and vacated a contempt
order against the defendants for failing to comply with pop-
(Continued on following page)
App. 51
a maximum inmate capacity for the Philade!phia prison
system based on ‘‘one man-one cell.’’ Nonetheless, plain-
tiffs contend that unconstitutional conditions persist.
The United States Court of Appeals, reversing the
judgment of this court (Opinion of Gibbons, J.; Garth,
J., dissenting), held that the Court of Common Pleas’
judgment was not res judicata as to the claims made in
this action. The court explained:
There is no identity of causes of action between the
plaintiffs in the 1971 lawsuit and this one. No mem-
ber 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 mat-
ters which by reason of the nature of the case could
not have been adjudicated.
Harris v. Pernsley, 755 F.2d 338, 342 (3d Cir. 1984) (cita-
tions omitted).
The Court of Appeals also held that because the fed-
eral court plaintiffs seek money damages while the state
court plaintiffs did not this was not a proper case for
abstention under Colorado River Water Conservation Dis-
(Continued from previous page)
ulation limits fixed by the three-judge court. In light of
Rhodes v. Chapman, 452 U.S. 337 (1981), and statutory re-
peals, the Pennsylvania Court held that the legal basis for
a ‘one man, one cell’ population limit had been eroded and
that a fresh consideration of the “totality of the circum-
stances was required to determine whether conditions of
confinernent in the Philadelphia prisons are unconstitutional.”
Jackson v. Hendrick, 509 Pa. 456, 470, 503 A.2d 400, 407-08
(1986).
i
App. 52
trict v. United States, 424 U.S. 800 (1976). Harris, 755
F.2d at 346. The court stated,
The mere pendency of a state court injunction predi-
cated on federal law, which according to the complaint
has not produced an alleviation of ongoing violations
of the Constitution, is not such an exceptional circum-
stance as to relieve the federal courts of ‘the virtually
unflagging obligation ... to exercise the jurisdiction
given them.’
755 F.2d at 345 (quoting Colorado River, 424 U.S. at 817).
Petitions for rehearing were denied on March 21, 1985.
Harris v. Pernsley, 758 F.2d 83 (3d Cir. 1985) (Judges
Adams, Hunter, Weis, Garth, and Becker would have
granted the petition for rehearing). /d. Defendants peti-
tioned the United States Supreme Court for a writ of cer-
tiorari; the petition was denied on November 4, 1985.
— US. —, 106 S.Ct. 331, 88 L.Ed.2d 314 (1985) (Justices
Rehnquist and O’Connor would have granted certiorari;
Chief Justice Burger dissented from the denial of the
writ). Jd.
Following remand, the trial court granted leave to file
a second amended complaint in order to provide adequate
class representation. Plaintiffs filed a second amended
complaint on behalf of an expanded class of prisoners in
all Philadelphia prisons and added the wardens of the De-
tention Center and the House of Corrections as party de-
fendants in their individual and official capacities. The
plaintiffs and City defendants also began negotiations for
settlement of both the state and federal litigation. This
court was informed on August 8, 1986, that a proposed
settlement had been reached. A preliminary hearing on
approval of the settlement was then scheduled.
baci
App. 53
On August 19, 1986, District Attorney Ronald E. [sic]
Castille moved to intervene as a party defendant, pursuant
to Fed.R.Civ.P. 24. Mr. Castille sought intervention as of
right pursuant to Fed.R.Civ.P. 24(a) or, in the alternative,
permissive intervention pursuant to Fed.R.Civ.P. 24(b) in
order to oppose the settlement.
I. Intervention As Of Right
Federal Rule of Civil Procedure 24(a) provides in
pertinent part as follows:
Upon timely application anyone shall be permitted to
intervene in an action ... (2) when the applicant
claims an interest relating to the property or transac-
tion which is the subject of the action and he is so situ-
ated that the disposition of the action may as a prac-
ticat matter impair or impede his ability to protect
that interest, unless the applicant’s interest is ade-
quately represented by existing parties.
In Pennsylvania v. Rizzo, 530 F.2d 501 (3d Cir.), cert.
denied, 426 U.S. 921 (1976), the Third Circuit enumerated
three distinct criteria that a putative intervenor is re-
quired to establish: (1) his application is timely, (2) he
has a sufficient interest in the matter and his interest
would be affected by the disposition, and (3) his interest
is not adequately represented by the existing parties. /d.
at 540.
Before addressing the sufficiency of the interest or
the adequacy of representation, there must be a determi-
nation of timeliness. See Donovan v. United Steelworkers,
721 F.2d 126, 127 (3d Cir. 1983), cert. denied, 467 US.
1252 (1984).
The district court must examine all the circumstances,
see NAACP v. New York, 413 U.S. 345, 366 (1973), in-
App. 54
cluding the stage olf the proceedings, the prejudice caused
to existing parties by delay in seeking intervention and
the reasons for the delay. See Rizzo, 530 I.2d at 507 (eit-
ing Nevilles v. EEOU, 511 F.2d 308, 305 (8th Cir. 1975)).
Although determining the scope of a putative intervenor’s
interest may require inquiry into state law, ‘‘the timing
and manner of intervention is purely a matter of (federal
law.’’? Olden v. Hagerstown Cash Register, Inc., 619 F.2d
271, 274 (3d Cir. 1980).
The District Attorney contends that timeliness should
be measured from the moment he first ‘‘officially learned’’
of the proposed settlement agreement from the City de-
fendants. The City defendants and plaintiffs assert that
timeliness should be measured from the time the lawsuit
was filed. However, ‘‘in considering timeliness the be-
ginning point should be the stage when inadequate repre-
sentations become apparent.’’ National Wildlife Federa-
tion v. Gorsuch, 744 F.2d 963, 970 (3d Cir. 1984) (citing
Legal Aid Society of Alameda v. Dunlop, 618 F.2d 48 (9th
Cir, 1980) ).
The court does not believe that there has ever been
inadequate representation of any proper interest of the
District Attorney, but for the purpose of determining
timeliness, the court accepts the District Attorney’s con-
tention that during settlement negotiations the City So-
licitor’s interests and actions have been adverse to the
interest of the Distriet Attorney in prosecuting criminal
cases.
The District Attorney agrees that earlier in this liti-
gation the City Solicitor’s office was adequately repre-
senting his interest. The City Solicitor’s actions were
Oe ee ee
App. 55
those that the District Attorney himself would have tal:en
when attempting to have the action dismissed. The Dis-
trict Attorney concedes that as long as the City Solicitor’s
office was attempting to have the case dismissed, he would
not have had standing to intervene.
The District Attorney asserts \that he officially
learned of the City Solicitor’s intent to enter into a con-
sent order on August 12, 1986. His motion to intervene
was filed one week thereafter. However, the District
Attorney was not entitled to wait for ‘‘official notifica-
tion’’ of a proposed settlement to attempt to intervene
because he does not like it. Ile was required to move to
intervene as soon as he knew or should have known that
his interests were no longer adequately protected. See
In re Fine Paper Antitrust Liiigation, 695 F.2d 494, 500
(3d Cir. 1982); Dodson v. Salvitti, 77 F.R.D. 674 (E.D.
Pa. 1977).
As in Dodson, the putative intervenor knew or should
have know from the time this litigation was commenced
that the ultimate disposition of these proceedings might
well affect the interests which they now seek to protect.’’
Id. at 677. Therefore, the District Attorney was under
a duty to monitor the litigation and move promptly to
intervene upon discovering that his interests might no
longer be protected. The City Solicitor’s settlement pos-
ture which displeased the District Attorney could not have
come as a surprise. The District Attorney voiced similar
objections to the City Solicitor’s activities in attempting
to settle the Jackson v. Hendrick litigation. As soon as
the District Attorney knew or should have known of this
litigation, he had an obligation to make sure that his in-
terests continued to be protected.
App. 56
The District Attorney knew or had reason to know
of this litigation long before August 16, 1986, when the
District Attorney had ‘‘official knowledge’’ of the pro-
posed settlement. At the time this action was filed the
District Attorney was following the Jackson v. Hendrick
litigation closely. indeed, the District Attorney had at-
attempted to intervene in Jackson on March 27, 1981, be-
cause of disagreement with the City’s posture in that
ease. The court finds that it is highly unlikely that the
District Attorney’s office had no knowledge o: this re-
lated litigation when it was instituted.
The District Attorney of Philadelphia, as all lawyers
in this Cireuit, is expected to read decisions of the United
States Supreme Court and those of the Court of Appeals
for the Third Circuit, at the very least those pertaining
to the areas of his sworn desponsibilities.4 Both Mr. Cas-
tille and former District Attorney Edward G. Rendell tes-
tified that they had not in fact read any of the opinions
in this litigation. However, former Deputy District Attor-
ney Eric B. Henson testified that he had read the opinion
of the United States Court of Appeals for the Third Cir-
cuit reversing this court’s dismissal of the action. Not-
withstanding the Deputy District Attorney’s failure to
diseuss it with the District Attorney, the District Attorney
is charged wih notice of the litigation and the need to pro-
tect his interest at least from that time forward. The rea-
4. Canon 6 of the Pennsylvania Code of Professional Re-
sponsibility states, “A lawyer should represent a client com-
petently.” 42 Pa.C.S.A. (Purdon 1975). “A lawyer is aided
in attaining and maintaining his competence by keeping
abreast of current legal literature and developments. . . .”
EC 6-2.
App. 57
sons for his failure to communicate this information to then
District Attorney Rendell are irrelevant. The District At-
torney must be charged with knowledge of this litigation no
later than March, 1985.
The City Solicitor’s office petitioned for a writ of cer-
tiorari and was continuing to protect the interest of the
District Attorney. However, on the date of the denial of
the writ, the District Attorney knew or should have known
that efforts to obtain dismissal had failed and settlement
negotiations were likely. Upon denial of the writ of cer-
tiorari the District Attorney was required to move prompt-
ly to intervene if he wanted to be a party to this action.
But he failed to ‘‘take the necessary steps in [his] own
behalf.’’ In re Fine Paper Antitrust Litigation, 695 F.2d
at 501. Instead, the District Attorney waited until the
parties were near settlement and then attempted to inter-
vene only to interfere with the settlement. The District
Attorney’s motion to intervene comes too late in these pro-
ceedings. Accord Dodson, 77 F.R.D. at 677.
The court must next inquire whether the delay in in-
tervention has prejudiced existing parties. See Delaware
Valley Citizens’ Council for Clean Air v. Commonwealth
of Pennsylvania, 674 F.2d 970 (3d Cir. 1982); Rizzo, 530
F.2d at 506. Here, the prejudice resulting from the delay
is great. The parties have invested a great amount of
time and effort in reaching a settlement. They have ar-
rived at two agreements, the first of which was abandoned
because of the District Attorney’s objections. Had the
District Attorney moved to intervene promptly as a party
to the settlement negotiations, he could have made his
opposition to settlement clear. Then, the time and energy
devoted to settlement negotiations might have been in-
App. 58
vested in preparing the case for trial; indeed, the case
might already have been tried. Intervention now will only
delay the litigation further and force plaintiffs to endure
confinement under allegedly unconstitutional conditions for
a greater period of time. The public interest as well as the
plaintiffs’ interest required prompt disposition of this
litigation following its remand to this court.
Other than lack of ‘‘official knowledge,’’ the District
Attorney has not presented any reason for waiting ten
months after the denial of the writ of certiorari to file a
motion for intervention. Because the court has already
found that the District Attorney was charged with knowl-
edge of the litigation during that period, the delay is inex-
eusable. Cf. Rizzo, 530 F.2d at 507 (reasons for delay
inadequate where no concealment of progress of highly
publicized litigation). The District Attorney chose to ig-
nore this litigation until he was ‘‘officially’’ informed that
a consent decree had been proposed. The decision to do so
was a tactical decision that cannot excuse the delay. See
Donovan v. United Steelworkers of America, AF L-C1O, 721
F.2d 126, 127 (3d Cir. 1983), cert. denied, 467 U.S. 1252
(1984).
In summary, the court finds that the District Attor-
ney’s motion must be denied as untimely because it comes
far too late in the proceedings, delay in filing the motion
would prejudice the existing parties and there is no ade-
quate reason for the delay. The application to intervene
is therefore denied as untimely.
But the question whether untimeliness alone is always
sufficient reason to reject an intervention application is
open in the Third Circuit. Sec Hoots v. Commonwealth,
App. 59
672 F.2d 1133, 11385 n.2 (3d Cir. 1982). Therefore, the
court also considered whether the District Attorney meets
the other criteria for intervention as of right and permis-
sive intervention.
Federal Rule of Civil Procedure 24(a) (2) requires that
an intervenor possess ‘‘an interest relating to the property
or transaction which is the subject of the action and [that]
he is so situated that the disposition of the action may as a
practical matter impair or impede his ability to protect
that interest. ...’’ The Supreme Court emphasized in
Donaldson v. United States, 400 U.S. 517 (1971), that the
interest must be a ‘‘significantly protectable’’ one. 400
U.S. at 531.
In determining whether the putative intervenor has a
‘“direct, substantial, legally protectable interest in the pro-
ceedings,’’ Dodson, 77 F.R.D. at 676 (quoting Hobson v.
Hansen, 44 F.R.D. 18, 24 (D.D.C. 1968) ), the complaint de-
termines the subject matter of the action. See id.; East
Powelton Concerned Residents v. Umted States Dept. of
Housing, 69 F.R.D. 392 (B.D. Pa. 1975); see also Alston
v. Coughlin, 109 F.R.D. 609, 613 (S.D.N.Y. 1986) (guards’
union denied right to intervene in suit alleging unconstitu-
tional conditions of confinement because only overcrowd-
ing and unsafe conditions rather than defects in guard as-
signment procedure alleged). Plaintiffs complaint alleges
that the conditions of their confinement violate the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment.
The District Attorney has asserted an interest in en-
forcing the criminal law and a related interest in protect-
ing the public safety. To determine the interest of the Dis-
App. 60
trict Attorney in this litigation, the court must look to state
law. See Olden, 619 F.2d at 274. Under the relevant stat-
utes and case law as well as the evidence herein, the Dis-
trict Attorney has no legally cognizable interest in the con-
ditions of confinement in Holmesburg Prison or any other
part of the Philadelphia prison system.
Statutory authority to run the Philadelphia prison
system is vested in the Board of Trustees of Philadelphia
Prisons. 351 Pa. Code §5.5-701. The Department of
Human Services of the City of Philadelphia has general
supervisory powers over all city correctional facilities. The
General Counsel for the Commonwealth of Pennsylvania
and the Commissioner of the Pennsylvania Bureau of Cor-
rections have responsibilities that affect the conditions of
confinement in the Philadelphia prisons. The District At-
torney for Philadelphia does not.
Under Pennsylvania law, the right of the District At-
torney to intervene and his joinder in the related state
court litigation have been denied by the Pennsylvania
courts. The denial of the right to intervene was based on
a lack of timeliness, see Jackson v. Hendrick, 498 Pa. 270,
446 A.2d 226 (1982), but the denial of joinder was on sub-
stantive grounds, see Jackson v. Hendrick, 72 Pa. Cmwlth.
63, 70, 456 A.2d 229, 232-33 (1983). The Pennsylvania
Commonwealth Court noted the related state action ‘‘is not
about ... the conduct of the District Attorney in carrying
out his prosecutorial function. It seeks rather a remedy
from unconstitutional prison conditions for which the Dis-
trict Attorney has no responsibility.’’ Jd. Therefore,
state law is clear that the District Attorney has no direct
interest in this litigation.
AE BON im.
App. 61
Plaintiffs are strongly opposed to the District Attor-
ney’s motion to intervene. Plaintiffs seck no relief against
the District Attorney. Counsel for plaintiffs stated in oral
argument that he did not know how he would proceed
against the District Attorney as a defendant other than to
move for his dismissal if intervention were granted, settle-
ment disapproved and the litigation continued.
It is clear that the District Attorney has ‘‘the power—
and the duty—to represent the Commonwealth’s interest
in the enforcement of its criminal laws.’’? Commonwealth
ex rel. Specter v. Bauer, 437 Pa. 37, 41, 261 A.2d 573, 575
(1970). It is equally clear that under Pennsylvania law
the City Solicitor’s office does not have the power or the
duty to represent the District Attorney in federal litiga-
tion econeerning the enforcement of the Commonwealth’s
penal statutes. But the enforcement of the Common-
wealth’s penal statutes is not here at issue. While the
final disposition of this aciion—either by settlement or
by injunctive relief granted after a finding of unconstitu-
tional conditions—could have some effect on the District
Attorney’s enforcement function,’ it is not the kind of
direct, substantial interest that permits intervention as of
right. See Donaldson, 400 U.S. at 531.
Nor is the District Attorney’s purported interest in
protecting the public safety of the citizens of Philadelphia
and the Commonwealth the kind of direct interest required
by Donaldson. Many agencies of government at the fed-
5. From the evidence adduced at the hearing, the court
is not convinced that the effect of imposing population caps
on the district attorney’s enforcement function would
significant.
eral, state, and municipal levels are charged with protect-
ing some aspect of public safety. This alone does not en-
title them to intervene in any legal action they believe
might adversely affect the public interest. A governmental
entity has the right to intervene only to protect a direct
interest; a view that only the District Attorney can or will
protect the publie safety is inaccurate and insufficient.
Intervention as of right requires that the purported
interest of the District Attorney not be adequately repre-
sented by the existing parties. Sce McClune v. Shamah,
593 F.2d 482 (3d Cir. 1979); Pennsylvania v, Rizzo, 530
F.2d at 540; see also Hoots, 672 F.2d at 1135. The burden
of showing inadequate representation, although a minimal
one, see Trbovich v. United States, 404 U.S. 528, 538 n.10
(1978), is on the putative intervenor, see, e.g., Hoots, 672
F.2d at 1135.
In his motion to intervene, the District Attorney ex-
presses concern over the effects of the proposed consent
decree on his ability to carry out his prosecutorial function
effectively. The court finds that the City defendants are
adequately representing any proper interest of the District
Attorney in this litigation.
In Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, the Third Circuit stated, ‘‘[rjepresentation
is generally considered adequate if no collusion is shown
between the representative and an opposing party, if the
representative does not represent an interest adverse to
the proposed intervenor and if the representative has been
diligent in prosecuting the litigation.’’ 674 F.2d at 973
(citing Olden, 619 F.2d at 274-75; Martin v. Kalvor Corp.,
411 F.2d 552, 553 (5th Cir. 1969)).
App. 63
The District Attorney has failed to meet his burden of
proving that no existing party adequately represents his
interest. See Trbovich, 404 U.S. at 538 n.10; Hoots, 672
F.2d at 1135. The District Attorney has neither alleged
nor shown collusion between the City defendants and plain-
tiffs or any failure to proseeute diligently. In addition,
he has failed to show that the City defendants’ interests
are adverse,
The District Attorney based his assertion of inade-
quate representation primarily on agreement by the City
defendants to the first proposed consent order. The Dis-
triet Attorney complained of the ‘‘mechanical timetables
to be implemented by the consent deeree,’’ see Brief in
Support at 7, to rights accorded to criminal defendants
and limitations imposed on the District Attorney in erim-
inal prosecutions, see id. at 8. Since ihe filing of the mo-
tion to intervene, proposed consent order No. 1 has been
withdrawn by the parties. Upon withdrawing proposed
consent order No. 1, the city defendants and plaintiffs in-
formed the court that the settlement agreement had been
renegotiated in large part because of the objections of the
District Attorney. This suggests that the concerns of the
District Attorney have been considered by the City de-
fendants.
The renegotiation of the settlement agreement ren-
dered moot many of the District Attorney’s concerns. In
consulting the District Attorney and modifying the agree-
ment in view of his coneerns, the City defendants demon-
strated that their interest was not adverse to that of the
District Attorney. Clearly, the City defendants recognized
their need to work with the Distriet Attorney to achieve an
enforceable settlement.
App. 64
The proposed revised settlement agreement presented
to the court for approval pursuant to Fed.R.Civ.P. 23(e)
sets a maximum allowable population in each of the Phila-
delphia prisons. By its terms it does not implicate the
District Attorney’s prosecutorial function in any way.
While the court recognizes that prison officials would find
it easier to comply with the prison population limits if there
were more speedy trials for the pretrial detainees who are
the overwhelming majority of those inearcerated in City
prisons, caps on prison population can be reached in ways
that would not interfere with the prosecutorial function.
The City defendants will have a choice of methods to bring
the prison population into conformance with the agreed
upon limitations under the proposed agreement. The City
may build additional prisons or convince the judiciary that
more convicted defendants should serve their sentences in
state institutions. The District Attorney fears release of
pretrial detainees the District Attorney considers a risk to
the community or unlikely to appear for trial. However,
the settlement agreement provides that persons charged
with or convicted of murder, forcible rape, or a crime in-
volving the use of a gun or knife in the commission of an
aggravated assault or robbery may be admitted to the City
prisons even if the population caps are exceeded; there is
10 provision in the settlement agreement for the release
of any prisoners. The City defendants’ behavior during
the negotiations demonstrates that the City defendants are
adequately representing any legally cognizable interest of
the District Attorney in this litigation.
Because the District Attorney has met none of the
three criteria required for intervention as of right, the
motion to intervene as of right will be denied.
Il. Permissive Intervention
The District Attorney requests that if intervention as
of right is denied he be granted permission to intervene
pursuant to Fed.R.Civ.P. 24(b). Rule 24(b) provides inter
alia:
Upon timely application anyone may be permitted to
intervene in an action... (2) upon an applicant’s claim
or defense and the main action have a question of law
or fact in common. ... In exercising its discretion the
court shall consider whether the intervention will un-
duly delay or prejudice the adjudication of the rights
of the original parties.
Fed.R.Civ.P. 24(b). Timeliness and the existence of com-
mon questions of law or fact must inform the court’s ex-
ercise of discretion in permitting intervention. See McKay
v. Heyison, 614 F.2d 899, 906 (3d Cir. 1980).
The District Attorney’s application for permissive in-
tervention must also be timely. See In re Fine Paper Anti-
trust Litigation, 695 F.2d 494 (3d Cir. 1982) (‘‘An appli-
cation to intervene, whether of right or by permission, must
be timely under the terms of Rule 24.’’). The court has
already found this application to intervene untimely. There-
fore, it has no discretion to grant the District Attorney’s
application to intervene as a party-defendant.
Federal Rule of Civil Procedure Rule 24(b) allows
other than statutory permissive intervention only ‘‘when
an applicant’s claim or defense and the main action have
a question of law or fact incommon.’’ Fed.R.Civ.P. 24(b).
The District Attorney’s proposed answer to plaintiffs’
second amended complaint and proposed cross-claim
against the City defendants presents some common ques-
App. 66
tions of law or fact between the present action against the
City defendants by a plaintiff class that includes pretrial
detainees and the proposed cross-claim by the District At-
torney against officials of the City of Philadelphia for in-
fringing upon the prosecutorial function. However, the
‘‘common questions’’ relate only to remedies. There is no
issue of law or fact relevant to liability common to the
present action and any claim or defense of the District
Attorney. Because the District Attorney has no responsi-
bility for the conditions of confinement in the Philadelphia
prison system, the common issues are not sufficiently re-
lated to the litigation the plaintiffs intended to pursue if
the settlement were not approved. Indeed, the District
Attorney has shown no interest in intervening if the liti-
gation continues. It is the parties’ proposal to settle that
has led to the District Attorney’s interest in intervention
as it is the settlement to which the District Attorney ob-
jects.
The court finds that permitting intervention would
cause both undue delay and prejudice to the original par-
ties. This action may have reached its conclusion. The
parties have reached a settlement and moved for its ap-
proval pursuant to Fed.R.Civ.P. 23(e). If the motion to
intervene is granted and if the court chooses not to allow
settlement of the action, the parties will be forced to liti-
gate. Extensive discovery may be required. If the Dis-
trict Attorney’s motion is granted, the City defendants in-
tend to move for joinder of the state courts and/or its
judges. The litigation that would ensue would be lengthy,
expensive and burdensome.
Prejudice would result to the plaintiffs beeause they
would be foreed to endure allegedly unconstitutional con-
tel Or LIE, ete
Rs AS i A Ae NG gl A ae dpa is
nee at he
App. 67
ditions for a much longer period of time. Prejudice would
also result to existing defendants who have by negotiating
a settlement limited their liability for compensatory dam-
ages where the exposure was great and also limited liabil-
ity for attorneys’ fees. Not only would they be unable to
enter into the settlement they have negotiated, but they,
not the District Attorney, will be exposed to far greater
liability for compensatory damages and attorneys’ fees
pursuant to 42 U.S.C.A. § 1988 (West 1981): While not
admitting liability, the present defendants wish to devote
money and personnel to improving conditions within the
prisons rather than continuing to defend this lawsuit. With-
out sharing any of the increased exposure to liability liti-
gation rather than settlement entails, the District Attorney
seeks to intervene only to prevent this settlement.
The court does not believe that granting the District
Attorney the status of a party-defendant would allow a
fuller or fairer resolution of the issues, Allowing the Dis-
trict Attorney to intervene would not paint ‘‘a fuller pic-
ture of the conditions [at issue],’? Christy v. Hammel, 87
F.R.D. 381, 395 (W.D. Pa. 1985), because the Distriet At-
torney has no control over those conditions. Despite the
untimeliness of the District Attorney’s motion for inter-
vention and the peripheral nature of his interest his ob-
jections to the proposed settlement have been stated on
the record for the consideration of the court with the con-
sent of the parties. The District Attorney has been ae-
corded the right to appear and be heard in opposition to
the settlement. Cf. Kirkland v. New York State Depart-
ment of Correctional Services, 711 F.2d 1117 (2d Cir. 1983),
cert, denied, 465 U.S. 1005 (1984) (approving district
court’s grant of intervention for sole purpose of objecting
App. 68
to the settlement). The court believes this statement of
objections to the settlement agreement was adequate for
the District Attorney to preserve his interest in this liti-
gation. The District Attorney has voiced his concerns with
the settlement agreement; however, the District Attorney’s
consent to the settlement is not required, see Kirkland, 711
F.2d at 1125-28, nor would he have standing to appeal the
approval or disapproval of the settlement, see Boston Tow
Boat Co. v. United States, 321 U.S. 632 (1944) (denying
intervenor right to take independent appeal).
An appropriate Order follows.
Se ae a
App. 69
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS, ALBERT
ANTHONY, ORLANDO X.
McCREA, TYRONE GLENN,
CARLOS ROYSTER, AMIN
ABDULLAH, KHALID ALLAH
MUHAMMAD, and ARNOLD
FURTICK, CHARLES OAKES,
EMANUEL GARDNER
CIVIL ACTION
Vv.
)
)
)
)
)
)
)
)
)
;
IRENE PERNSLEY, individually )
and in her official capacity as )
Commissioner of the Department _ )
of Human Services of the City of )
Philadelphia, ROYAL L. SIMS, _ )
REV. ALBERT CAMPBELL, )
LABORA BENNETT, JAMES )
BARBER, MARK MENDEL, )
DONALD PADOVA, each individ- )
unlly 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, )
GUETON CURIONE, individually )
and in his official capacity as )
Warden of Holmesburg Prison, )
PHILLIP DUKES, individually _ )
and in his official capacity as )
Warden of the Detention Center, )
JOHN DAUGHEN, individually )
and in his official capacity as )
Warden of the House of )
App. 70
Corrections, RODNEY D. )
JOHNSON, individually, LEO C. )
BROOKS, individually, JAMES _ )
S. WHITE, individually and in )
his official capacity as Managing )
Director of the City of )
Philadelphia, WILLIAM J. )
GREEN, individualiy, HON. )
WILSON GOODE, 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 )
General Counsel for the Common-_ )
wealth of Pennsylvania, )
RONALD J. MARKS, individually, )
GLEN JEFFES, individually and)
in his official eapacity as Commis-_ )
sioner of the Pennsylvania )
Department of Corrections ) NO. 82-1847
ORDER
AND NOW, this 30th day of December, 1986, upon
consideration of the Settlement Agreement entered into
by Plaintiffs and all Defendants except Waldman, Marks
and Jeffes (settling defendants hereinafter referred to as
‘‘City Defendants’’), the factual record developed by
stipulation and affidavits of counsel, the Court’s own in-
spection of the prisons, and argument of counsel, the
Court finds and concludes as follows:
l. The criteria for certification of a class action under
Fed.R.Civ.P. 23(b)(2) are met by the proposed class. In
particular, named Plaintiffs are adequate representatives
of the class and are represented by able and expricnced
counsel.
oe
HAO APE Bb DOLE AOE ONE
App. 71
2. The conditions of confinement in the Philadelphia
Prison System (consisting of Holmesburg Prison, the
House of Corrections, the Detention Center, Women’s
Modular Units, Laurel Hall, the Cannery, YMCA, Phila-
delphia Industrial Correction Center (PICC), and the
downtown facility to be built and operated by the City of
Philadelphia) have improved in various ways since those
conditions were adjudged unconstitutional by the Philadel-
phia Court of Common Pleas in 1972. Gains have been
made in the areas of nutritien, health, drug and alcohol
treatment, maintenance, social work, education, vocational
training and visitation; the City’s operating and capital
budgets have been increased significantly.
3. There is nevertheless a need for additional im-
provements in many areas, particularly those where even
improved conditions of confinement are impaired by over-
crowding. For example, intake procedures, maintenance,
kitehen and dining facilities, sick call capabilities and edu-
cational, vocational and recreational opportunities are all
impaired by overcrowding.
4. The current population of the Philadelphia Prison
System is approximately 4300 inmates, including 250 in-
mates housed in the partially completed PICC.
5. The Settlement Agreement between tne City De-
fendants and Plaintiffs contemplates a system-wide maxi-
mum population of 3750, with PICC fully operational and
housing 850 inmates.
6. The Settlement Agreement will result in a signifi-
cant overall reduction in the current prison population and
a reduction in double-celling throughout the Philadelphia
Prison System.
App. 72
7. The City Defendants have also agreed to propose
the entry of an order in the Jackson v. Hendrick proceed-
ing to address conditions of confinement other than over-
crowding.
8. There is a risk that Plaintiffs could not succeed at
trial in demonstrating that the conditions of confinement in
the Philadelphia Prison System are unconstitutional such
that any relief is warranted.
9. There is a further risk that the Court would not
permit Plaintiffs to litigate the conditions in the entire
Philadelphia Prison System--as opposed to Holmesburg
Prison only--making it unlikely that Plaintiffs could
achieve the system-wide relief accomplished through the
settlement now proposed by the parties.
10. Settlement of this matter now provides immediate
relief to Plaintiffs prior to taking costly discovery. Trial
on the merits of this matter would be lengthy and subject
to appeal, and would greatly delay any relief to which
Piaintiffs ultimately may be entitled.
11. The City Defendants have litigated this matter
_ vigorously, and the proposed settlement appears to be the
result of arm’s length bargaining.
12. Appropriate notice having been given to members
of the class in the most feasible manner and the proposed
settlement being in the interest of the class Plaintiffs, it is
accordingly hereby approved by the Court in accordance
with Rule 23(e) of the Federal Rules of Civil Procedure.
13. An opinion detailing the reasons for the Court’s
approval of the settiement will be filed forthwith.
THEREFORE, it is hereby ORDERED AND DE-
(REED as follows:
Wea ee WL Waal rei AR. INE en ae BM aah
App. 73
1. A Plaintiff class shall be certified in this matter,
pursuant to Fed.R.Civ.P. 23(b)(2), to include all persons
who are, or who have been, inmates of the Philadelphia
Prison System since April 30, 1980, and all persons who
shall be inmates of the Philadelphia Prison System in the
future during such time as this Court retains jurisdiction
of this matter.
2. The City Defendants shall adopt and implement
the following procedures and policies to reduce the popula-
tion of the Philadelphia Prison System and maintain the
population at agreed-upon levels:
a. Before admission to the Philadelphia Prison Sys-
tem, all defendants in criminal proceedings shall
be held at the Police Administration Building for
at least four (4) hours from the time of their pre-
liminary arraignment to enable said persons to
post bail. Those defendants with bail of $1,500.00
or less shall be held at the Police Administration
Building for at least six (6) hours from the time
of their preliminary arraignment to enable said
persons to post bail.
b. At no time shall more than two inmates be housed
in a cell in the Philadelphia Prison System.
ce. Every inmate shall be assigned to a long-term
housing area within seventy-two (72) hours of ar-
rival in the Philadelphia Prison System. Hous-
ing areas shall not include any gymnasium, corri-
dor or bench area, or any area not set up for
permanent housing. Every inmate shall receive a
mattress by the first night after arrival and a bed
and mattress within twenty-four (24) hours of
arrival. Until his or her assignment to a housing
area, each inmate shall remain in designated intake
areas and shall receive proper bedding in accord-
ance with this provision.
App. 74
d. City Defendants shall ~omplete construction o}
the Philadelphia Industrial Correction Center,
with at least 650 cells, which shall be occupied :
by December 15, 1986. i
e. City Defendants shall construct a downtown de-
tention tacility, with at least 440 beds, which shall
be occupied by December 31, 1990.
f. The population of the Philadelphia Prison Sys-
tem shall not exceed the following levels:
As of March 9, 1987 — 4,100 inmates
As of May 11, 1987 — 3,950 inmates
As of July 18, 1987 — 3,750 inmates
Thereafter, the prison population shall not ex-
ceed 3,750 until the opening of the downtown
detention facility. All population levels estab-
lished by this subsection shall be referred to here-
atter as ‘‘the maximum allowable population.’’
g. On and after July 13, 1987, the population of the
respective individual facilities within the Phila.
delphia Prison system shall not exceed the follow-
ing levels:
Detention Center — 750 inmates
Holmesburg — 80U inmates
House of Correction — 900 inmates
Women’s Modular Units— 200 inmates |
Laurel Hall, Cannery
& YMCA — 250 inmates
Philadelphia Industrial |
Correction Center — 8930 inmates |
TOTAL 3,750 inmates |
h. No federal or state prisoners, other than inmates
detained for immediate court appearances, shall
be housed within the Philadelphia Prison System,
App. 75
except for those federal prisoners in the custody
of the United States Marshal. Said federal pris-
oners may be housed pursuant to the contract
between the City of Philadelphia and the United
States Marshal.
i, City Defendants shall, on a weekly basis, provide
counsel for Plaintiffs with daily population fig-
ures for each of the facilities within the Phila-
delphia Prison System.
3. The Court recognizes that the prison population
fluctuates on a daily basis; therefore, the maximum allow-
able population of the Philadelphia Prison System or of
any individual facility may be exceeded temporarily, but
never for more than seven (7) consecutive days or for
more than twenty (20) out of any forty (4U) days.
4. If the population of one or more of the individual
facilities within the Philadelphia Prison System exceeds
the maximum allowable population as set forth in Para-
graphs 2 and 3 oi this Order, the City Defendants shall
seek the release, through the mechanism of the Bail Mas-
ter appointed by the Jackson court or otherwise, of per-
sons being held either on the lowest bail or persons sen-
tenced to the Philadelphia prisons with less than sixty
(60) days remaining to serve on their sentences. Such
releases shall continue until the maximum allowable popu-
lation is achieved or restored. City Defendants agree
not to seek the release of any person charged with, or
convicted of, murder or iorcible rape; City Defendants
further agree not to seek the release of any person whose
release would constitute an imminent threat to public
safety or to the inmate’s own healih, safety or welfare.
App. 76
5. If, after twenty-one (21) days from the date on
which the maximum allowable population has been ex-
ceeded for the period of time specified in Paragraph 3,
the population of one or more of the individual facilities
still exceeds the maximum allowable population, City De-
fendants shall admit no additional inmates into such fa-
cility or facilities, except persons charged with, or con-
victed of, murder, forcible rape, or a crime involving the
use of a gun or knife in the commission of an aggravated
assault or robbery, until the number of inmates housed
in the facility or facilities is within the maximum allow-
able population and new admissions will not cause the
maximum allowable population to be exceeded.
6. This Court shall retain jurisdiction of the parties
and the cause of action in this matter for five (5) years.
At that time, unless the parties reach agreement on the
issue of continued jurisdiction, the (‘ourt shall discontinue
jurisdiction unless Plaintiffs demonstrate, at a hearing,
that continued jurisdiction is necessary to maintain the
maximum allowable populations prescribed in the parties’
Agreement and this Order.
7. Subject to the terms of this Order, all claims as-
serted in this matter against the City Defendants are
dismissed with prejudice. All claims asserted against
Defendants Marks and Jeffes are dismissed without preju-
dice pursuant to Rule 41(a) of the Federal Rules of Civil
Procedure.
IT IS SO ORDERED.
/s/ Norma L. Shapiro
J.
t
App. 77
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS, ALBERT
ANTHONY, ORLANDO X.
McCREA, TYRONE GLENN,
CARLOS ROYSTER, AMIN
ABDULLAH, KHALID ALLAH
MUHAMMAD, and ARNOLD
FURTICK, CHARLES OAKES,
EMANUEL GARDNER
CIVIL ACTION
Vv.
)
)
)
)
)
)
)
)
)
IRENE PERNSLEY, individually )
and in her official capacity as )
Commissioner of the Department _ )
of Human Services of the City of )
Philadelphia, ROYAL L. SIMS, )
REV. ALBERT CAMPBELL, )
LABORA BENNETT, JAMES )
BARBER, MARK MENDEL, )
DONALD PADOYA, each individ- )
ually and in his or her official )
capacity as a r.ember 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, )
GUETON CURIONE, individually )
and in his official capacity as )
Warden of Holmesburg Prison, )
PHILLIP DUKES, individually )
and in his official capacity as )
Warden of the Detention Center, )
JOHN DAUGHEN, individually _)
and in hi. official capacity as )
Warden of the House of )
App. 78
Corrections, RODNEY D. )
JOHNSON, individually, LEO C. )
BROOKS, individually, JAMES _ )
S. WHITE, individually and in )
his official capacity as Managing )
Director of the City of )
Philadelphia, WILLIAM J. )
GREEN, individually, HON. )
WILSON GOODE, 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 )
General Counsel for the Common-_)
wealth of Pennsylvania, )
RONALD J. MARKS, individually, )
GLEN JEFFES, individually and)
in his official capacity as Commis-_ )
sioner of the Pennsylvania )
Department of Corrections ) NO. 82-1847
ORDER
AND NOW, this 19th day of February, upon consid-
eration of the District Attorney’s motion to stay imple-
mentation of the settlement agreement pending appeal,
memoranda filed in support thereof and in opposition
thereto, and for the reasons set forth in the foregoing
Memorandum, it is ORDERED that said motion is DE-
NLED.
/s/ Norma L. Shapiro
J.
App. 79
IN THE UNITED STATHS DISTRICT OURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARTIN HARRIS, ALBERT
ANTHONY, ORLANDO X.
McCREA, TYRONE GLENN,
CARLOS ROYSTER, AMIN
ABDULLAH, KHALID ALLAH
MUHAMMAD, and ARNOLD
FURTICK, CHARLES OAKES,
EMANUEL GARDNER
Vi
IRENE PERNSLEY, individually
and in her official capacity as
Commissioner of the Department
of Human Services of the City of
Philadelphia, ROYAL L. SIMS,
REV. ALBERT CAMPBELL,
LABORA BENNETT, JAMES
BARBER. MARK MENDEL,
DONALD PADOVA, each individ-
ually and in his or her official
eapacity 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,
GUETON CURIONE, individnally
and in his official eanacity as
Warden of Holmesburg Prison,
PHILLIP DUKES, individually
and in his official capacity as
Warden of the Detention Center,
JOHN DAUGHEN, individually
and in his official capacity as
~~
a a a a a ee ee ee ee ee te ei iit
CIVIL ACTION
App. 80
Warden of the House of )
Corrections, RODNEY D. )
JOHNSON, individually, LEO C. _)
BROOKS, individually, JAMES _ )
S. WHITE, individually and in )
his official capacity as Managing )
Director of the City of )
Philadelphia, WILLIAM J. )
GREEN, individually, HON. )
WILSON GOODE, 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 Common-_)
wealth of Pennsylvania, )
RONALD J. MARKS, individually, )
GLEN JEFFES, individually and _)
in his official capacity as Commis- _ )
sioner of the Pennsylvania )
Department of Corrections ) NO. 82-1847
MEMORANDUM and ORDER
NORMA L. SHAPIRO, J. FEBRUARY 19, 1987
On December 31, 1986, this court entered orders de-
nying the motion to intervene of the District Attorney
of Philadelphia County, Ronald D. Castille, and approv-
ing a settlement between the City defendants! and the
plaintiff-prisoner class. Presently before the court is
the District Attorney’s motion to stay implementation of
the settlement agreement to which the District Attorney
: The term City defendants refers to all defendants rep-
resented by the City Solicitor. The group includes all defen-
dants except Waldman, Marks and Jeffes.
App. 81
is not a party, pending appeal of this court’s denial o/
his motion to intervene as a party defendant and oppose
entry of the consent order approving plaintiffs’ settle-
ment with some but not al! the defendants. For the rea-
sons now stated, the motion for a stay delaying the phased
implementation of the consent order until the District At-
torney’s appeal is decided is denied.
This civil rights class action concerning conditions
of confinement in City of Philadelphia penal institutions
was instituted pursuant to 42 U.S.C.A. § 1983 (West 1981)
by ten inmates of Holmesburg Prison in April, 1982.7
On August 19, 1986, the District Attorney moved to inter-
vene as a party defendant. After written submissions by
the District Attorney, the plaintiff-prisoner class and the
City defendants, a lengthy evidentiary hearing and ora!
argument, the court denied the District Attorney’s mo-
tion to intervene on December 31, 1986. The court sub-
sequently entered a consent order that same date. In
that Order, the court approved the settlement between the
plaintiff-prisoner class and the City defendants in accord-
ance with Fed.R.Civ.P. 23(e). All claims against the City
defendants were dismissed with prejudice. In addition,
pursuant to Fed.R.Civ.P.41(a) (1), the court dismissed all
claims against defendants Marks and Jeffes without pre)-
udice. The action proceeds against defendant Waldman
only because Waldman has refused to agree to his dis-
missal without prejudice; plaintiff’s class counsel is pres-
z The procedural history of this action was detailed by
this court in its Memorandum and Order denying the motion
to intervene of the District Attorney of Philadelphia. See
Harris v. Pernsley, Civil Action No. 82-1847, Slip Op. at 2-5
(E.D.Pa. December 31, 1986).
App. 82
ently precluded by a conflict of interest from pursuing
this matter. Until plaintifi’s class representative obtains
new counsel, this matter cannot be closed.
On January 8, 1987, the District Attorney filed a no-
tice of appeal of the order denying his motion to in-
tervene and the consent order approving the settlement
agreement. On January 14, 1987, pursuant to Fed.R.Civ.
P. 62(c), the District Attorney applied to this court for
a stay of the consent order pending appeal. On January
29, 1987, the City defendants and the plaintifi-prisoner
class filed responses opposing the motion for stay.
Rule 62(c) provides inter alia:
When an appeal is taken from an interlocutory or
final judgment granting, dissolving, or denying an in-
junction, the court in its discretion may suspend,
modify, restore, or grant an injunction during the
pendency of the appeal upon such terms as to bond
or otherwise as it considers proper for the security
of the rights of the adverse party.
led. R.Civ.P. 62(c¢).
‘*A request for stay is addressed to the sound dis-
cretion of the court.’? First Amendment Coalition v. Ju-
dicial Inquiry and Review Board, 584 F. Supp. 635, 637
(E.D.Pa. 1984) (Pollak, J.), vacated and remanded on
other grounds, 784 F.2d 467 (3d Cir. 1986) (quoting
Evans v. Buchanan, 424 F. Supp. 875, 879-80 (D. Del.),
aff’d as modified, 555 F.2d 373 (3d Cir.), cert. denied, 434
U.S. 280 (1977) (citing Coppedge v. Franklin County
Loard of Education, 293 F. Supp. 356, 362 (E.D.N.C.
1986) ; Hobson v. Hansen, 44 F.R.D. 18, 21 (D.D.C. 1968),
aff’d in part and rev’d im part. 408 F.2d 175 (D.C. Cir.
App. 83
1969)). In exercising its discretion, the court must bal-
ance the equities and determine whether the movant has
shown that (1) he will likely prevail on the merits of the
appeal, (2) he will suffer irreparable injury if the stay
is denied, (3) other parties will not be substantially harmed
by the stay, and (4) the public interest will be served
by granting the stay. See First Amendment, 584 F. Supp.
at 636 (quoting Long v. Robinson, 432 F.2d 977, 979 (4th
Cir. 1970); see also Halderman v. Pennhurst State School
&€ Hospital, 451 F. Supp. 233, 235 (E.D. Pa. 1978); Phila-
delphia Counsel of Neighborhood Organization v. Adams,
451 F. Supp. 114 (E.D. Pa. 1978); Resident Advisory
Board v. Rizzo, 429 F. Supp. 222, 224 (E.D. Pa. 1977).
‘The inquiry in determining a motion for stay pending
appeal is similar to that in determining a motion for grant
of preliminary injunctive relief. See Pennhurst, 451 F.
Supp. at 235; Evans, 424 F. Supp. at 235. Therefore,
while these four ‘‘factors structure the inquiry ... no
one aspect will determine its outcome. Rather, proper
judgment entails a delicate balancing of ali elements.’’
Constructors Assoc. of Western Pa. v. Kreps, 573 F.2d
$11, 835 (3d Cir. 1978) (factors relevant to grant of pre-
liminary injunction). ‘These four factors must be ex-
amined to guide the court in the exercise of its discretion
in this civil rights class action.
1. Likelihood of Success
Because the District Attorney is requesting a stay of
the consent order itself until his right to intervene and
oppose it is determined, in deciding whether to grant a
stay, the court must determine the likelihood of the Dis-
trict Attorney’s success not only on his motion to inter-
App. 84
vene but on his appeal in opposition to the consent order
if the motion to intervene is resolved in his favor.
An Order denying a motion to intervene is a final
appealable order. E.g., McKay v. Heyison, 614 F.2d 899,
903 (3d Cir. 1980); MeClune v. Shamah, 593 F.2d 482, 485
(3d Cir. 1979); Commonwealth v. Rizzo, 5380 F.2d 501, 504
(3d Cir. 1976), cert dented, 426 U.S. 921 (quoting Phala-
delphia Electric Co. v. Westinghouse Electric Corp., 308
F.2d 856, 859 (3d Cir. 1962), cert. dented, 372 U.S. 936
(1963)). An appeal may be ‘‘taken from both aspects of
an order denying intervention where it is claimed that the
applicant had an absolute right to intervene, and, alterna-
tively, that the district ceurt abused its discretion in deny-
ing permissive intervention.’’ McClune, 493 F.2d at 485
(citing Philadelphia Electric, 308 F.2d at 959)). There-
fore, the District Attorney may appeal the Order denying
his motion to intervene.
However, the court believes that the District Attorney
is unlikely to succeed on the merits even though it is diffi-
cult for a district court to consider the likelihcod of an
appellant’s success on appeal. This consideration neces-
sitates a prediction whether the district court was in error.
It would be highly unusual for a district court judge to
come to this conclusion immediately after a decision on
the merits because the decision itself represents the judge’s
reasoned decision as to what was legally correct. The
court believes that the inquiry must be modified in accord-
ance with the view of Judge Pollak expressed in First
Amendment. In granting a stay pending appeal where the
law was unsettled, he stated,
If the question is whether I think that the balance of
probability is that I was wrong and that my order
App. Sd
will be set aside on appeal, that is not my view. If
that were my assessment I would not have decided
the merits as I did.
I do not, however, think that whether a stay should
be granted must depend on my concluding that I was
probably in error. If I am satisfied that there is a
reasonable possibility--albeit not a probability--that
I was in error, it seems to me that the equities would
then shift strongly towards granting a stay.
584 F. Supp. at 638.
Here only whether the standard of review for inter-
vention as of right is plenary may be viewed as unsettled.
See United States v. City of Philadelphia, 798 F.2d 81 (3d
Cir. 1986) (in affirming denial of intervention as of right
assumes, without deciding, that review is plenary). In
its memorandum of December 31, 1986, this court ex-
plained the reasons for denial of the District Attorney’s
motion to intervene. This court found that the District
Attorney had failed to meet the threshold intervention
requirement of timeliness. Slip Op. at 6-11. The court
also found that the District Attorney did not have a
‘¢direvt. snbstantial, legally protectable interest in the pro-
ceedings.’’ Slip Op. at 11-14 (quoting Dodson v. Salvitti,
77 F.R.D. 674, 676 (E.D. Pa. 1977). Finally, the court
determined that any purported interest of the District
Attorney was adequately represented by the City defen-
dants. Slip Op. at 14-17. This court’s decision was based
on well settled law in the Third Circuit.
‘*Permissive intervention rulings are of course re-
viewed under an abuse of discretion standard.’’ United
States v. City, 798 F.2d at 90. In exercising its discretion
to deny the application for permissive intervention, the
App. 86
district court determined that while common questions of
law or fact existed between the main action and a proposed
cross-claim by the District Attorney against the City defen-
dants, the application for permissive intervention should be
denied because granting it would not paint ‘‘a fuller pic-
ture of the conditions [at issue],’’ Christy v. Hammel, 87
F.R.D. 381, 395 (W.D. Pa. 1985), and would result in delay
and prejudice to the existing parties. Slip Op. at 17-20.
In making these determinations, the district court
considered the relevant factors in reliance on long standing
precedent and articulated its reasons at length. There
does not seem to be a reasonable possibility that its de-
cision will be overturned on appeal. However, even if this
court were in error on every finding made in denying the
District Attorney’s motion to intervene, the court would
still be compelled to find that the District Attorney is not
entitled to a stay pending this appeal because it is highly
unlikely that the District Attorney will ultimately succeed
on the merits of his appeal of the court’s entry of the con-
sent order even if permitted to intervene.
The injunctive provisions of the consent order are
subject to appeal as of right pursuant to 28 U.S.C.A.
§ 1292(a)(1) (West 1966 & Supp. 1986). However, if the
district court’s denial of the District Attorney’s motion to
intervene is upheld, the District Attorney would clearly
be without standing to appeal the consent order. In Rizzo,
530 F.2d 501, the Court of Appeals held that ‘‘one properly
denied the status of intervenor cannot appeal on the merits
of the case.’’ 530 F.2d at 508 (citing Hoots v. Common-
wealth of Pennsylvania, 495 F.2d 1095 (3d Cir.), cert.
denied, 419 U.S. 884 (1974). Even if the district court’s
App. 87
Order denying the district Attorney’s motion to intervene
were reversed and the District Attorney’s motion to inter-
vene were granted, the District Attorney would still lack
standing to appeal the consent order. The consent order
resulted from a settlement between the plaintiff-prisoner
class and the City defendants. The Order also provided
for dismissal without prejudice of two of the Common-
wealth defendants. It did not affect the rights of the
remaining Commonwealth defendant, Jay C. Waldman.
Similarly, it would not have affected the rights of the
District Attorney had he been permitted to intervene as
a party defendant.
‘‘The general rule is that in order to have standing
to appeal, the appellant must be privy to the record and
aggrieved by the order appealed from.’’ Jn re Eastern
Sugar Antitrust Litigation, 697 F.2d 524, 527 (3d Cir.
1982). The interests the District Attorney asserts in this
action are insufficient under the reasoning of Cobb v.
Aytch, 539 F.2d 297 (3d Cir. 1976), cert. denied, 429 U.S.
1103 (1977), and Graddick v. Newman, 453 U.S. 928 (1981)
(Powell, J. in Chambers), to grant him standing to appeal
a eonsent order by which he is not bound even if as a
result of his appeal he became a party defendant.
In Cobb, a prisoner civil rights class action alleging
that transfers between county and state prison institu-
tions were violative of the plaintiff class’s rights under
the First, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution, the Court of Appeals held
that the interests of party defendants, the District At-
torney and Commissioner of Police, were insufficient to
confer standing to appeal an order approving a settlement
App. 88
entered into by other defendants. They had no statutory
or other authority to determine the circumstances requir-
ing inmate transfer and they were not enjoined from per-
forming any lawful duties. But the defendant Superin-
tendent of the Philadelphia prisons did have standing to
appeal because the order removed authority that the Penn-
sylvania General Assembly had granted to him. 598 F.2d
at 299.
Here the consent order at issue did not diminish any
right or authority of the District Attorney to administer
Philadelphia prisons or enjoin the District Attorney from
performing any duty imposed by law. This court found
that, as in Cobb, any injuries suffered by the District
Attorney are indirect and insufficient to grant standing
to appeal the entry of this consent decree even if the mo-
tion to intervene were granted.
In his in chambers opinion in Graddick, a prisoner class
action alleging uncontitutional conditions of confinement,
Justice Powell discussed the reasons for denial of the
Alabama Attorney General’s motion for stay of an injunc-
tion upon denial of the Attorney General’s motion to inter-
vene as a party defendant. The motion for stay was
denied for failure to establish either irreparable injury to
any cognizable interest or standing to assert that interest.
Justice Powell stated:
Even if [Attorney General] Graddick’s allegation of
irreparable injury were accepted, he had made no
showing that he was the proper official to assert that
claim. Graddick’s original application presented no
state law basis for his attempt to assert the rights
of Alabama citizens generally. His standing to repre-
sent Alabama’s interests in this matter was not self-
App. 89
evident in the usual context of his case. Alabama
statutes had vested responsibility for the prison sys-
tem in the Governor, and the Governor, who is also
the state’s chief executive officer, opposed Graddick’s
application. The Governor averred that he, not the
Attorney General, properly represented the state’s
interest in this case.
483 U.S. at 934.
Here also the Mayor of the City of Philadelphia op-
poses the District Attorney’s application. The Mayor
of the City of Philadelphia and the other defendants named
herein, all of whom are very adequately represented by the
City Solicitor, are the proper representatives of the public
interest because of their legal responsibilities in the mat-
ters the subject of this action. The District Attorney’s
interest in public safety which he shares with other elected
officials does not enable him to represent the public in-
terest in holding persons accused of crime or criminals in
confinement where that duty has clearly been vested in
others by state law. The District Attorney has not shown
that he has the right to intervene, that he should have been
granted permission to intervene, or that he had standing
to appeal from the consent order even if he did inter-
vene. It is settled law that a party carnot appeal from
a decision which is not adverse to him. Cobb, 539 F.2d
at 300.
Finally, if the district court were in error in all these
matters, the Court of Appeals would still determine if
such error was harmless. United States v. City, 798 F.2d
at 90; see also Halderman v. Pennhurst State School and
Hospital, 612 F.2d 131, 134 (3d Cir. 1979) (applying harm-
less error analysis to denial of motion to intervene for
App. 90
purpose of appealing). The District Attorney’s objec-
tions to the proposed settlement were stated on the record
for the consideration of the court with the consent of the
parties. The district court has already considered all the
District Attorney’s reasons for disapproval of the consent
order in connection with his attack on the inadequacy of
the City Solicitor’s representation. The district court has
nevertheless determined that the consent decree is in the
public interest and should be approved for the reasons
articulated on the record at the time the consent order was
entered and in a memorandum opinion subsequently filed.
The opposition to this settlement by the District Attorney
has not and would not convince the district court to compel
the plaintiff class to pursue litigation against a defendant
it does not choose to sue and preclude it from terminating
litigation against defendants who seek a settlement that is
in the interest of all parties agreeing to it and is also in
compliance with the Constitution of the United States.
Because the District Attorney was accorded the right
to appear and be heard in opposition to the settlement, de-
nial of his motion to intervene would be at most harmless
error unless the Court of Appeals were to conclude that the
district court abused its discretion in approving the settle-
ment. Considering the history of this prolonged litiga-
tion, the possible termination of the related Jackson v.
Hendrick litigation (in which denial of intervention by the
District Attorney was affirmed by the Pennsylvania Su-
preme Court) and the settlement agreement, the terms of
which the class believes to be in its interest and with which
the City defendants are willing to comply, this court does
not believe that approving settlement of this litigation will
be found abusive of its discretion.
App. 91
9
2. Irreparable Injury to the District Attorney
The District Attorney asserts that absent a stay pend-
ing appeal, he will suffer irreparable injury because ‘‘hun-
dreds of prisoners must be released.’’ District Attorney’s
Memorandum at 6. On the date the consent order was en-
tered, approximately 4,300 prisoners were housed in the
Philadelphia prison system, including 250 inmates housed
in the partially completed Philadelphia Industrial Corree-
tion Center (‘‘PICC’’). The consent order requires the
City defendants to reduce the population in stages: as of
March 9, 1987, the population of the Philadelphia prison
system may not exceed 4,100 inmates; as of May 11, 1987,
the population may not exceed 3,950 inmates; as of July 13,
1987, the population may not exceed 3,750 inmates. The
population must stay at or below 3,750 inmates until the
opening of the downtown detention facility. The consent
order also specifies population limits for each facility with-
in the system. If the population of one or more of the
facilities exceeds the maximum allowable population, the
City defendants are required to seek the release of these
inmates being held either on the lowest bail or persons sen-
tenced to the Philadelphia prisons with less than sixty (60)
days remaining on their sentences. However, the release of
inmates charged with, or convicted of, murder or forcible
rape will not be souglit. Nor will the release be sought of
any person who would consiitute an imminent threat to
public safety or to his own health, safety, or welfare be
sought.
The District Attorney has failed to show that a massive
release will occur from the phased-in population limits un-
der the consent order. He has failed to show that if the re-
leases provided for in the consent order occur, his legiti-
App. 92
mate interests will be harmed. The injury asserted is in-
sufficient to convince the court that a stay of the consent
order pending the District Attorney’s appeal is warranted.
Under the court’s consent order, massive releases will
not be required. The City defendants in their brief in op-
position aver that plans have been developed to reduce the
population of the Philadelphia prisons without such re-
leases. The District Attorney has not provided the court
with any reason to believe that the City defendants are in
error in their belief that they can comply with the prison
population limits provided for in the consent decree or that,
with reasonable cooperation of the courts and other public
officials, they will fail in their efforts. The Chief Justice
of Pennsylvania, Robert N.C. Nix, Jr., announced on Janu-
ary 14, 1987, that persons in pretrial detention shall have
priority in state court criminal trial listings. The court is
unwilling to assume that the systemic reforms that will be
instituted must be unsuccessful.
Even if releases were required to comply with the
population limits, the District Attorney has failed to meet
his burden of showing an irreparable injury to him. The
District Attorney states, ‘‘{[a]s court statistics establish,
many of these released defendants will commit new crimes
or fail to appear for trial. These harms, once they occur,
cannot subsequently be remedied. ‘Thus, unless a stay is
granted, the District Attorney’s right to appeal will be
rendered substantially meaningless.’’ District Attorney’s
Memorandum at 7.
The District Attorney provides no support for this
statement. If relying on statistics presented at the eviden-
tiary hearing on his motion to intervene by the testimony
|
App. 93
of witness Maria Terpollili, Senior Supervisor, Pretrial
Services Unit, Court of Common Pleas of Philadelphia
County, the data presented by Ms. Terpollili was unworthy
of consideration and was in part ruled inadmissible. The
District Attorney attempted to show through her testimony
that a high pereentage of criminal defendants released un-
der the Jackson v. Hendrick’ program were rearrested or
failed to appear for trial. The methodology used in pre-
paring the ratios presented to the court was so flawed that
the ratios were meaningless if not misleading. The calcu-
lated ‘‘failure to appear’’ rates also did not differentiate
between a person whose failure to appear was caused by a
lack of notice and one who simply chose not to appear. The
District Attorney was unable to present comparable statis-
tics for other pretrial detainees released on O.R. or cash
bail. The District Attorney argued that if additional] pre-
trial detainees were released, the failure to appear and re-
arrest rates would be even higher. Release of pretrial de-
tainees may have the indirect effect of making the District
Attorneys’ prosecutorial tasks somewhat more difficult but
the evidence presented is insufficient to find that the Dis-
trict Attorney would suffer significant irreparable injury
by release of pretrial detainees required to bring the prison
population into compliance with the consent order. If pre-
trial detainees present the threat the District Attorney as-
serts, the solution is to hold prompt trials so that those
3. Jackson v. Hendrick is a class action in equity alleging
unconstitutional conditions of confinement in Holmesburg
Prison filed in the Court of Common Pleas of Philadelphia
County in February, 1971. The interrelationship of this action
and the Jackson litigation is discussed in this court’s prior
Memorandum and Order. See Harris v. Pernsley, Civil Action
No. 82-1847, Slip Op. at 3-4 (E.D. Pa. December 31, 1986).
as
accused of serious crimes are convicted, sentenced and
committed to state custody, rather than continued in-
definitely in pretrial status because trial priority is given
to those released on bail.
The court does not believe that the injury the District
Attorney alleges is sufficient to warrant a stay pending ap-
peal even if the District Attorney had met his burden of
showing that the injury would occur. Because this court on
its own initiative or under the direction of the Court of Ap-
peals can alter the population limits during the period it
retains jurisdiction, denial of a stay pending appeal will
not render whatever right the District Attorney has to ap-
peal ‘substantially meaningless.’’ District Attorney’s
Memcrandum at 7. Preferential trial listings where the ac-
cused is in detention awaiting trial will alleviate whatever
substance there is to the District Attorney’s concern about
release of most pretrial detainees. At worst, the failure to
grant a stay pending appeal will make it more difficult for
the District Attorney to prosecute some pretrial detainees
released during the pendency of the appeal. In view of the
unlikelihood of suecess on the merits, the minimal injury
to the putative intervenor (some of which is within his
power to ameliorate), the substantial prejudice to all
parties to the settlement agreement if its implementation
is delayed, and the public interest in this settlement, that
injury is clearly insufficient to warrant a stay.
3. Substantial Harm to the Parties
The grant of a stay pending appeal would cause irre-
parable harm to the plaintiff-prisoner class. The Dis-
trict Attorney argues that no harm would be caused to
existing parties by a stay pending appeal because the
le
App. 95
plaintiff-prisoner class has no legitimate expectation of
release. See District Attorney’s Memorandum at 7. The
District Attorney is correct that the plaintif/-nrisoner
class has no legitimate expectation of release from prison.
But the District Attorney incorrectly assumes that the
plaintiff-prisoner class primarily seeks approval of the
settlement to obtain release of its members. The class
seeks approval of the settlement primarily to achieve a
portion of the relief demanded in the amended complaint
for allegedly unconstitutional conditions of confinement.
Plaintiffs have not only a legitimate expectation but a
right to constitutional conditions 0: confinement. There
has been no adjudication of the constitutionality of the
conditions of confinement in the City penal institutions,
but the City defendants, without any admission of fault
or liability, have offered substantial relief to the plaintitf-
prisoner class by this settlement. It is against public
policy favoring settlement of civil rights class actions to
grant a stay pending appeal that because there has been
no judicial finding of uneonstitutionality in this court.
[rreparable injury will be caused to the plaintiff class
by granting a stay pending appeal because class members
would be forced to continue in confinement under condi-
tions less humane than those obtained if settlement is
implemented in accordance with the agreement with the
City defendants.
The District Attorney is apparently opposed only to
the prison population limits. However, granting his
motion would stay all the provisions of the consent de-
cree, even those provisions beneficial to the class to which
the District Attorney has stated no objection, such as time
to post bail at the Police Administration Building, hous-
icine
App. 96
ing assignment within 72 hours, sleeping quarters, mat-
tresses, bedding and perhaps most important, construc-
tion of a downtown 440 bed detention facility by Decem-
ber 31, 1990. The District Attorney offers no reason to
delay these substantial benefits and there is none.
4. The Public Interest
Granting a stay pending appeal would not be in the
public interest. In its opinion approving the settlement
agreement, the court articulated the reasons the settle-
ment agreement was in the public interest. See Harris v.
Pernsley, Civil Action No. 82-1847, Slip Op. at 30-31 (.D.
Pa. February 19, 1987). Staying its implementation is
not.
The District Attorney argues that the consent order
should be stayed in the public interest because, ‘‘|a]bsent
a stay, hundreds of prisoners, most of whom are accused
felons with criminal records, will be released.’’ The court
finds compliance with the court’s consent order less dis-
turbing than the District Attorney. The record estab-
lished that 70% of the persons in Philadelphia prisons
are pretrial detainees who are presumed innocent. While
some pretrial d
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