her apartment. Maietta tried to re-enter the apartment to regain her possessions but was apprehended by the police. The police referred her to the Lycoming County Mental Health Office for a 10-day commitment under section 405 of the Act.
The Mental Health Office believed Maietta to be "confused, delusional and irrational," and petitioned to commit Maietta despite the fact that Maietta insisted that she was not in need of care and treatment. Two examining physicians thought that Maietta "suffered from Paranoid tendencies." There was nothing in their reports to show she was harmful or dangerous to herself or to others.
On July 3, 1972, defendant Judge Charles F. Greevy of the Lycoming County Court of Common Pleas indefinitely committed Maietta to Danville against her will, for care and treatment, by authority of section 406 of the Act. Maietta objects to being committed as she has not presented a problem of danger to herself or to others.
On January 10, 1975, plaintiff Fogle was picked up by the Sunbury police and referred to the Northumberland County Mental Health Office on a complaint from the management of the Edison Hotel that Fogle was showing "bizarre behavior." Fogle was committed to Danville State Hospital for a 10-day period pursuant to section 405 of the Act.
On January 24, 1975, Fogle was involuntarily committed to Danville by defendant Judge Michael Kivko after a Master's hearing elicited testimony that Fogle's behavior had been diagnosed by two psychiatrists as "Schizophrenia, Paranoid Type." There was no determination that Fogle was dangerous to himself or others either during the 10-day commitment or prior to the commitment.
Before reaching the merits of plaintiffs' claims, some threshold issues raised by the defendants must be considered. They are (1) whether this Court should abstain from deciding this case, either under the doctrine of Railroad Commission v. Pullman Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) which holds that a federal court should not decide a case challenging state action as contrary to the federal constitution where there are questions of state law that may be dispositive of the case, or under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), which provides that federal courts should refrain from enjoining certain ongoing state court proceedings; (2) whether the rule of Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) prevents plaintiffs from seeking relief under 42 U.S.C. § 1983 because they are actually challenging the fact or duration of confinement and, thus, a writ of habeas corpus is their sole federal remedy; and (3) whether the defendant judges are immune from this suit under the doctrine of judicial immunity.
The abstention issues require little comment. Defendants maintain that this Court should abstain under the Pullman rationale in order to afford the Pennsylvania state courts the opportunity to construe section 406 in a manner that would avoid the constitutional problems of vagueness and overbreadth. The short answer to this contention is that the Pennsylvania Supreme Court recently declined an opportunity to rule on the constitutionality of section 406, in Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975), petition for allocatur denied, October 17, 1975. In Finken, a habeas corpus action challenging a commitment pursuant to section 406, the Pennsylvania Superior Court, in a 4-3 opinion, ordered the petitioner discharged for failure to comply with the procedural requirements of the Act itself. Three of the judges also reached the constitutional issues raised by the petitioner, and held, inter alia, that the commitment standards of section 406 were void for vagueness. Id. at 179-184, 339 A.2d 764. The Pennsylvania Supreme Court's denial of allocatur in Finken means that there is no prospect of a Pennsylvania Supreme Court decision regarding the constitutionality of section 406 in the near future. Because a federal court may not abstain "'simply because the rights asserted may be adjudicated in some other forum,'" Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 395, 19 L. Ed. 2d 444 (1967), citing Stapleton v. Mitchell, 60 F. Supp. 51, 55 (D.Kan.1945), this Court declines defendants' invitation to abstain in this case.
Defendants' Younger v. Harris argument is equally without merit. The Younger v. Harris doctrine only applies when a federal court is asked to enjoin or interrupt an on-going state court proceeding in which the federal plaintiffs will have an opportunity to have their claims adjudicated. See Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). There presently exists no state court proceeding whatsoever involving these plaintiffs, and no such proceeding is imminent. Younger v. Harris, therefore, simply does not apply to this case.
Defendants next argue that plaintiffs may not challenge in a section 1983 suit the constitutionality of the statute under which they were committed, but must instead proceed under the federal habeas corpus statute, 28 U.S.C. § 2254, which requires exhaustion of available state remedies prior to proceeding in federal court. As this argument is based on Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), we turn to an examination of that case.
In Preiser, the Supreme Court held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500, 93 S. Ct. at 1841. Plaintiffs in Preiser were state prisoners who sued under 42 U.S.C. § 1983 alleging that they had been deprived of good-time credits in administrative disciplinary proceedings that were conducted with a lack of procedural due process. The specific relief sought was a restoration of such credits. By the time their complaints were filed in the district court, such relief would have resulted in their immediate release. The Court held that because the suits were within the core of habeas corpus, in that they challenged the fact or duration of confinement and sought immediate release from that confinement, they should have been dismissed and plaintiffs should have been ordered to proceed in habeas corpus. Moreover, the Court was careful to emphasize that the result would have been the same if the practical effect of a grant of the requested relief had been merely a shortening of the duration of the sentence rather than immediate release. "[The] heart of habeas corpus . . . [is a challenge to] the fact or duration of . . . physical confinement itself, and . . . [the] seeking [of] immediate or a speedier release from that confinement . . ." Id. at 498, 93 S. Ct. at 1840.
Defendants maintain that this case is controlled by Preiser because plaintiffs are challenging the constitutionality of the statute under which they were committed, and the inevitable effect of that challenge, if it is successful, will be their release from custody. Plaintiffs, on the other hand, argue that this case is distinguishable from Preiser because they are not asking this Court to order their release from custody. Instead, they maintain, they merely seek a declaration that the statute under which they were committed is unconstitutional and an injunction enjoining defendants from enforcing and executing the statute in its present version; if this Court rules in their favor, they will then seek release in state court. In essence, their position is that the Preiser issue turns on the relief sought. Because they do not seek release, they maintain, they are not required to proceed in habeas corpus.
Several cases decided since Preiser would appear to support plaintiffs' proposed distinction from that case. In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), plaintiffs were pretrial detainees who were being held for trial under a prosecutor's information and who had not had any judicial determination of probable cause. They brought a section 1983 action in the district court, claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting an order that the state authorities afford them a probable cause determination. The Court held that "[because] release was neither asked nor ordered, the lawsuit did not come within the class of cases for which habeas corpus is the exclusive remedy." Id. at 107 n. 6, 95 S. Ct. at 859. See also Gomez v. Miller, 341 F. Supp. 323 (S.D.N.Y.1972) (3-judge court), which was decided prior to the decision in Preiser, but was affirmed summarily following Preiser in Miller v. Gomez, 412 U.S. 914, 93 S. Ct. 2728, 37 L. Ed. 2d 141, 93 S. Ct. 2737 (1973). Because plaintiffs in this case do not request release from custody, they are not required to proceed by habeas corpus. Accord, Bradford v. Weinstein, 519 F.2d 728, 730 (4th Cir. 1974), vacated and remanded as moot, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975) ; and Pope v. Chew, 521 F.2d 400, 406 n. 8 (4th Cir. 1975).4
The contention that the defendant judges are immune from this suit under the doctrine of judicial immunity may be disposed of summarily. Plaintiffs seek only equitable relief here, in the form of a declaratory judgment and "preliminary and permanent injunctions enjoining Defendants from enforcing and executing" section 406. Complaint, p. 12. They do not request damages. The courts have consistently held that the doctrine of judicial immunity does not apply to a request for equitable relief under 42 U.S.C. § 1983. United States v. McLeod, 385 F.2d 734, 738 n. 3 (5th Cir. 1967); Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir. 1972), cert. denied, 409 U.S. 889, 93 S. Ct. 126, 34 L. Ed. 2d 147 (1972). Accordingly, defendant judges are not immune from the relief sought here.
Turning to the merits, we set forth first the relevant portion of section 406, together with a brief analysis of the statutory scheme of the Act. Section 406 provides in pertinent part:
"(a) Whenever a person is believed to be mentally disabled, and in need of care or treatment by reason of such mental disability, and examination of such person has been made by a physician or physicians, or for any reason the examination of such person cannot be made, a petition may be presented to the court of common pleas of the county in which a person resides or is, for his immediate examination or commitment to an appropriate facility for examination, observation and diagnosis.