# Appendix — Castille v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0918%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 947 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0918%3A2. Public record. Not legal advice.