APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-1229).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
This appeal arises from collateral proceedings following the settlement of a suit to obtain greater visiting privileges for inmates of Delaware County Prison in Thornton, Pennsylvania. This action has such a tortuous procedural history in the district court as to defy description.
The complaint was filed on May 15, 1974, by Edward L. Stanley, a pre-trial detainee at the Prison who sought to represent all "persons who have been, are, or will be pre-trial detainees held in Delaware County Prison." It alleged that the defendant prison officials, the predecessors in office of the present defendants, had promulgated or enforced visiting rules which deprived the class of their rights to freedom of association, equal protection, and due process. The parties agreed that the relevant criteria of F.R. Civ. P. 23 as to class action status were satisfied, but the court itself never made a determination that a class action was proper.
On June 4, 1974, the parties entered into a judicially approved "Stipulation," in effect a settlement of the suit, under which defendants agreed to allow inmates increased visiting privileges. While the complaint was filed only on behalf of pre-trial detainees, the parties chose to allow sentenced inmates the new visiting privileges as well. The Stipulation provided that the action was dismissed by agreement of the parties, "pursuant to Rule 41(a)(1)" of the Federal Rules of Civil Procedure.
On September 24, 1975, the defendants petitioned the court to modify the Stipulation on the grounds that the agreed upon visiting privileges were causing severe administrative problems. On the same date the court ordered the named plaintiff Stanley to show cause why the petition to modify should not be granted. In considering defendants' petition, the court was concerned that there was no proper plaintiff before it, in that named plaintiff Stanley was no longer an inmate at the Prison, and the suit had never been certified as a class action. The court thus permitted Donald Williams and Marion Tillery to intervene; by order dated June 7, 1976, it amended the caption of the case to insert their names as parties plaintiff.
Apart from the problem of obtaining a proper plaintiff, the court in considering defendants' petition to modify was also concerned that there was nothing left of the original lawsuit to modify, since the suit had been dismissed. In a further effort to give validity to defendants' efforts to modify the Stipulation, the court with the agreement of the parties, stated in its June 7 order that the Stipulation would be "considered" a consent decree. The court construed the petition to modify as a motion for relief under F.R. Civ. P. 60(b).
After hearings on the defendants' petition had begun, the court, on its own initiative, again considered whether there was a plaintiff before it who had a live controversy with the defendants. It concluded that there was no such plaintiff, partly because it appeared that Williams and Tillery were sentenced inmates rather than pre-trial detainees as had originally been supposed. The court also found that Tillery was no longer confined at Delaware County Prison. From the record it appears that Williams is still confined at the Prison. On July 23, 1976, the court ordered that the petition to modify be dismissed "for want of a live case or controversy," despite the fact that two pre-trial detainees, Luke N. Dowdy and John A. Pandola, had that morning moved to intervene. The order of July 23 also: a) vacated the rule to show cause directed to the original plaintiff Stanley, on September 24, 1975 b) vacated the court's order of June 7, 1976, which had stated that the Stipulation would be considered a consent decree and caused Williams' and Tillery's names to be inserted in the caption of the case. Williams and Tillery appeal from the July 23 order in No. 76-2046.*fn1 Defendants do not cross-appeal the dismissal of their petition.
Dowdy and Pandola, the pre-trial detainees who had been denied leave to intervene, then moved that defendants be held in contempt of court for failing to comply with the Stipulation of June 4, 1974. They also asked that defendants be stayed from changing the agreed upon visiting privileges pending resolution of the contempt proceedings. On August 13, 1976, the court denied both requests. Although appellants Williams and Tillery did not join in the motion to hold defendants in contempt, they appeal the court's August 13 order in No. 76-2047.
Appellants ask that we reverse the orders of July 23 and August 13, and that we order the defendants to reinstitute the visiting privileges contained in the Stipulation. They also ask that these privileges be reinstituted pending appeal.
We note at the outset that Tillery lacks standing to raise any issue in the case, since he is no longer confined at Delaware County Prison. The situation with regard to Williams is different. As to the order of July 23, he does not have standing to complain of the dismissal of the defendants' petition to modify, since he is not injured by virtue of the fact that the petition was dismissed. For the same reason he lacks standing to complain of the fact that the district court vacated its rule to show cause why the petition to modify should not be granted. He does, however, have standing to complain of the provision of the July 23 order which vacated the court's order of June 7 that Tillery and himself be inserted as captioned plaintiffs, and that the Stipulation be considered a consent decree.
Williams was in the first place injured by the court's decision to vacate its order that the Stipulation be considered a consent decree. The Stipulation extends the new visiting privileges to sentenced inmates like Williams as well as to pre-trial detainees, and he might well want to obtain these privileges by moving to hold defendants in contempt. For defendants to be held in contempt, however, it must be shown that they have failed to perform an act commanded by the court. Skinner v. White, 505 F.2d 685, 688-9 (5th Cir. 1974). Even though the Stipulation, which dismissed the suit, was approved by the court, it is not a command of which defendants can be held in contempt. On the other hand, defendants may be held in contempt of a ...