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INTERNATIONAL PRISONERS' UNION v. RIZZO

April 2, 1973

INTERNATIONAL PRISONERS' UNION
v.
Frank RIZZO, Mayor of Philadelphia, et al.


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 The International Prisoners' Union is an unincorporated association whose membership consists of inmates confined within the Philadelphia Prison System. *fn1" The named defendants include the Mayor of Philadelphia, the Superintendent of the Philadelphia County Prison System and the wardens of the Holmesburg penal institution.

 Plaintiffs' complaint alleges violations of protected rights under the First, Fourth, Sixth, Eighth and Fourteenth Amendments to the Constitution and raises claims under Sections 1983, 1985 and 1986 of 42 United States Code. Specifically, the allegations relate to numerous inadequacies with respect to the physical conditions of the prison, *fn2" and to improper disciplinary procedures and punishments. *fn3" These allegations are coupled with a plea for injunctive and declaratory relief and a demand for compensatory and punitive damages.

 Before this action was commenced, a Complaint in Equity was filed in the Court of Common Pleas of the County of Philadelphia, Jackson, et al. v. Hendrick, et al., February Term 1971, No. 71-2437 (hereinafter referred to as Jackson). The Jackson case was brought as a class action *fn4" on behalf of prisoners incarcerated in Philadelphia County prisons, raised substantially the same allegations as the instant case and requested the same relief with the exception that no monetary damages were sought in that earlier action.

 After notice to members of the class, a five week trial was held and upon its conclusion, the court (Spaeth, Smith, Williams, JJ.) issued a 264 page opinion in which it found numerous violations of United States constitutional rights and Pennsylvania statutes.

 Defendants in the instant case have filed a motion to dismiss stating that plaintiffs have failed to state a claim for relief, that they are members of the class in the previously tried action and are bound by the decision rendered therein, their claim is barred by res judicata or collateral estoppel, the action is barred by a prior pending action brought by the same plaintiffs on the same subject matter and that the monetary claim for relief raised here is not within the jurisdiction of the federal courts.

 We must determine whether or not plaintiffs are members of the class denominated in Jackson. If so, we must decide whether plaintiffs are thereby precluded from maintaining in the federal courts any or all of the claims raised in the state court proceeding, including those claims which could have been but were not litigated.

 With respect to whether plaintiffs' complaint states a claim upon which relief can be granted, it is well settled that the federal courts may entertain claims involving the restriction of a prisoner's constitutional rights by prison officials. See, e.g., Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969); Wilson v. Prasse, 463 F.2d 109 (3d Cir., 1972); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1971); Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971); Landman v. Royster, 333 F. Supp. 621 (E.D. Va. 1971). See also our discussion in United States ex rel. Neal v. Wolfe, 346 F. Supp. 569 (E.D. Pa. 1972).

 Defendants maintain that plaintiffs are members of the class denominated in Jackson and because they have already had a full blown trial on the merits, they should not be permitted to have a "second bite out of the apple." We hold that plaintiffs are members of the Jackson class action and are precluded from raising any claim in the instant case which was or could have been raised in the previously tried case.

 Plaintiffs contend that they are not members of the class denominated in Jackson because of inadequate representation and inadequate notice. We find no merit in plaintiffs' contention. Adequate representation, as a prerequisite for a class action under the Pennsylvania and Federal Rules, *fn5" requires that "the representative party must be interested enough to be a forceful advocate . . . and . . . the representative party must have interests which are compatible with . . . those whom he would represent." Shulman v. Ritzenberg, 47 F.R.D. 202, 207 (D.C. 1969).

 Plaintiffs maintain that although there is no question as to the competency of counsel in the Jackson case, because of the absence of a damage claim in that action, a lack of community of interests exists between the Jackson plaintiffs and the litigants in the instant case. This contention ignores the fact that the declaratory and injunctive relief sought in both actions is virtually identical. Plaintiffs in both actions are prisoners incarcerated in Philadelphia penal institutions, are exposed to the same allegedly unconstitutional living conditions and have experienced the same deprivations of federally protected rights. These allegations, which are common to both complaints, constitute a community of interest between the plaintiffs in both civil actions. The lack of a damage claim in Jackson has de minimis impact upon the representation issue.

 It is also argued that plaintiffs herein are not bound by the result in Jackson because of lack of adequate notice. Upon a review of the opinion of the Court of Common Pleas, confirming the class action, *fn6" and an examination of the notice drafted by that Court so as to insure protection of the members of the class, we are persuaded that both the content and manner of posting notice comported with the requirements of the Fourteenth Amendment. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

 Plaintiffs contend that even if we reach an adverse result with respect to the adequacy of representation and notice in Jackson, they may still maintain in this court all their claims which were or could ...


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