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July 20, 1977

NEIDA SANTIAGO, et al., Plaintiffs
CITY OF PHILADELPHIA, et al., Defendants

The opinion of the court was delivered by: LORD, III

 This civil rights action is brought by juvenile-residents of the Youth Study Center ("YSC"), Philadelphia, Pennsylvania, who challenge the conditions of confinement and treatment at YSC and seek injunctive and declaratory relief and damages. In a previous opinion, Santiago v. City of Philadelphia, 72 F.R.D. 619 (E.D. Pa. 1976) [hereinafter Santiago I ], we granted plaintiffs' motion for class action certification as it applies to injunctive and declaratory relief. *fn1" Defendants have moved to dismiss the action on several grounds. We will grant their motion in part and deny it in part.

 Plaintiffs' allegations of constitutional deprivations and state statutory violations can be divided into six categories: (1) unconstitutional corporal punishment and solitary confinement; (2) general institutional conditions which violate constitutional and statutory standards (e.g., inadequate living space, heating, lighting); (3) improper institutional restraints and suppression of liberties (e.g., limitations concerning mail, visitation, recreation, clothing and medical care); (4) denial of adequate educational and rehabilitative services; (5) racial segregation at YSC resulting from discriminatory placement of juveniles; and (6) failure to utilize the least restrictive alternative in confining juveniles. Plaintiffs maintain these practices are actionable under 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, 1988, 1994 and 2000(d); the first, fourth, fifth, eighth, thirteenth and fourteenth amendments of the United States Constitution; and the statutory and common law of the Commonwealth of Pennsylvania.

 Named as defendants are: the City of Philadelphia, Mayor Frank Rizzo, Hillel Levinson (Managing Director of Philadelphia), judges of the Family Court Division of the Philadelphia Court of Common Pleas, administrators and personnel of YSC, the Philadelphia School District and officials of both the Philadelphia School District and Pennsylvania State Department of Education. Defendants are sued for overt acts committed in furtherance of the aforementioned practices and/or their acquiescence in and toleration of the same. In addition, liability for some defendants has been based upon a respondeat superior theory.

 The defendants' *fn2" motion to dismiss alleges that: (a) the complaint fails to meet the requirements of case or controversy; (b) this court should abstain from a decision on the merits; (c) the Family Court judges and Judge Montemuro are immune from suit; (d) certain defendants should be granted "quasi-judicial" immunity; (e) the City of Philadelphia is immune; (f) respondeat superior is not applicable to any defendant; (g) plaintiffs have not alleged facts which could constitute a violation of the eighth amendment; (h) the complaint fails to state a cause of action under 42 U.S.C. §§ 1983, 1985(3), 1986, 1994 and 2000(d) against all and/or some of the defendants; (i) plaintiffs have no right of privacy; and (j) this court should not exercise pendent jurisdiction over the state law claims. We will deal with each of these arguments seriatim.


 Defendants claim that this action fails to meet the requirements of the case or controversy clause of Article III because plaintiffs have not alleged any "real and immediate" injury and thus lack the requisite "personal stake in the outcome." Rizzo v. Goode, 423 U.S. 362, 372, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976); O'Shea v. Littleton, 414 U.S. 488, 493-94, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). Defendants argue that it is speculative to assume that the named plaintiffs will again be subjected to the conditions at YSC of which they complain and that the allegations of past wrongs are insufficient to raise the prospect of future harm which is needed to justify a claim for injunctive relief. *fn3" We reject this argument.

 Defendants' objection is based upon the Court's analysis in O'Shea and Goode. In O'Shea the Court concluded that allegations concerning practices of racially discriminatory bond setting, sentencing and assessing of fees did not meet the requirements of Article III because the complaint lacked allegations of specific instances of such abuse by defendants and there was no support for the assertion that there were "continuing, present adverse effects" upon plaintiffs. O'Shea, supra at 496. The Court held that before the named plaintiffs could seek relief for a class, they must establish the requisite case or controversy with the defendants.

 In Goode the plaintiffs claimed that there was a pervasive pattern of illegal and unconstitutional mistreatment of citizens of Philadelphia by police officers. The plaintiffs only sued supervisory officials of the City, including the Mayor, City Managing Director, Police Commissioner and two police officials, and sought injunctive relief against these officials in the form of, inter alia, a disciplinary program to discourage police misconduct. The proof at trial failed to establish either a pervasive pattern of misconduct by the police or an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [defendants] -- express or otherwise -- showing their authorization or approval of such misconduct." Goode, supra at 371.

 The Court concluded that plaintiffs did not demonstrate a case or controversy between themselves and defendants because plaintiffs' claim to injury "rests not upon what the named [defendants] might do to them in the future . . . but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures." Id. at 372.

 The facts alleged in this action are significantly different from those described in O'Shea and Goode. We find that there is a case or controversy between the named plaintiffs and defendants. Each named plaintiff allegedly has suffered an injury due to the conditions at YSC or conduct by YSC personnel. In particular, numerous incidents of allegedly excessive use of corporal punishment and solitary confinement are described in the complaint. The supervisory defendants (e.g., Mayor, City Managing Director, YSC Board of Managers) are linked to these conditions at YSC and misconduct by YSC employees because the complaint avers that this mistreatment is a direct consequence of policies and practices which have been authorized or acquiesced in by these defendants. This nexus is supported by the statutory duty these defendants have to maintain and supervise the facility. We conclude that the complaint demonstrates both injury to the named plaintiffs and defendants' connection to those injuries.

 Concerning the prospect of future harm, defendants incorrectly posit the question in terms of the likelihood of the named plaintiffs' being confined again at YSC. Rather, the issue is whether the plaintiffs' class, consisting of current and future YSC residents, is likely to suffer injury due to defendants' conduct. The complaint alleges that the conditions of confinement and treatment at YSC, which apply to all YSC residents, violate the eighth amendment. Defendants have not demonstrated that these conditions have substantially changed since the complaint was filed, and thus if violations are proven, future residents will likely suffer injuries similar to those allegedly inflicted on the named plaintiffs. The supervisory defendants are sufficiently linked to these conditions and practices because they are administratively responsible for the maintenance of YSC and allegedly have initiated or acquiesced in policies and practices which have resulted in constitutional violations.


 Defendants suggest that we should abstain from deciding the issues involved in the suit. Without pointing to an explicit legal theory of abstention, defendants emphasize that the juvenile justice system is one "fraught with local concern" and "permeated by state law." We agree but conclude that these factors are insufficient to justify federal court abstention when federal constitutional rights are involved.

 Abstention "is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), quoting from, County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959). There are three defined areas where abstention is appropriate. The first is Pullman abstention. This theory requires a federal court to defer a decision in a case where a federal constitutional issue is raised which is premised on an unsettled question of state law and which may be mooted or avoided by a resolution of the state law issue. Railroad Commn. of Texas v. Pullman Co., 312 U.S. 496, 500-01, 85 L. Ed. 971, 61 S. Ct. 643 (1941). In this action there is no unclear question of state law.

  The second circumstance where abstention is appropriate is "where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River Water Conservation Dist. v. United States, supra at 814; Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943). This type of abstention is only applicable when there is an extended state regulatory system or body of law that would be substantially disturbed by the resolution of a federal case. State law is not the primary question in this action. Additionally, the challenge raised by plaintiffs is neither insignificant nor disruptive of otherwise valid components of the juvenile justice system of Pennsylvania. If constitutional violations are found, the conditions at YSC must be altered to conform to constitutional proscriptions.

 The third category which must be considered is Younger equitable restraint. In Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the Court held that a federal court could not intervene in a pending state criminal proceeding absent a showing of bad faith or harassment by the officials responsible for the prosecution or a patently invalid state statute. Younger is premised upon notions of comity and the rule that equity ordinarily should not enjoin the prosecution of a crime. The Younger principle has been applied by the Court in three cases involving state civil proceedings. Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486, 45 U.S.L.W. 4535 (1977); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975). In each decision the Court carefully noted that it was not holding that the Younger doctrine applied to all civil litigation. Rather the Court has mandated Younger equitable restraint only in cases where the federal plaintiffs have attempted to invalidate a state statute and thereby enjoin a pending state civil proceeding which was initiated by the state against these individuals and was intended to enforce or vindicate an important state policy. Trainor v. Hernandez, 45 U.S.L.W. at 4537. In our case there is no pending state proceeding initiated by the state which could be disrupted by federal adjudication of this action. Therefore, we conclude that the Younger doctrine does not bar our consideration of plaintiffs' challenge of the conditions of confinement and treatment at YSC.

 The principles underlying the Younger doctrine do have application to one claim in this suit. It would appear that a component of plaintiffs' allegation of racial segregation is that the Family Court judges have discriminated in determining the disposition for juveniles adjudicated to be delinquent. 11 P.S. § 50-320. We believe that federal intervention in this decision would be inappropriate.

 In O'Shea v. Littleton, supra at 500-01, the Court held that federal equitable relief was not available in a suit claiming racial discrimination in the sentencing of black offenders by Illinois judges. The Court concluded that the enforcement of a federal decision in such an action would entail "continuous supervision by the federal court over the conduct of the [judges] in the course of future criminal trial proceedings involving any of the members of the . . . broadly defined class." Id. at 501. This, the Court determined, would violate established principles of comity as expressed in Younger. See also Bonner v. Circuit Court of the City of St. Louis, 526 F.2d 1331, 1335-37 (8th Cir. 1975), cert. denied, 424 U.S. 946, 47 L. Ed. 2d 353, 96 S. Ct. 1418, reh. denied, 425 U.S. 926, 96 S. Ct. 1525, 47 L. Ed. 2d 773 (1976); Wallace v. Kern, 520 F.2d 400, 404-08 (2d Cir. 1975), cert. denied, 424 U.S. 912, 47 L. Ed. 2d 316, 96 S. Ct. 1109 (1976); Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974), cert. denied, 423 U.S. 841, 46 L. Ed. 2d 61, 96 S. Ct. 73 (1975).


 Defendants seek to have the complaint dismissed against all Family Court judges and Judge Frank Montemuro on the ground that judges are immune from suit, regardless of the relief sought. We reject this argument.

 The Supreme Court clearly held in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), that state judges are immune from suits seeking damages under 42 U.S.C. § 1983 for actions done in the performance of their judicial functions. Since plaintiffs do not request damages against the judges, this is not an issue in this action. However, there are two limitations placed upon judicial immunity which require us to reject the immunity claim of these defendants.

 First, we hold that state judges are not immune from suits seeking injunctive and declaratory relief. Although the Third Circuit has not ruled upon this question, Conover v. Montemuro, 477 F.2d 1073, 1093 (3d Cir. 1973) (en banc), the majority of courts which have explicitly considered the issue have held that no immunity exists. See Boyd v. Adams, 513 F.2d 83, 86-87 (7th Cir. 1975); Fowler v. Alexander, 478 F.2d 694, 696 (4th Cir. 1973); Erdmann v. Stevens, 458 F.2d 1205, 1208 (2nd Cir.), cert. denied, 409 U.S. 889, 34 L. Ed. 2d 147, 93 S. Ct. 126 (1972); United States v. McLeod, 385 F.2d 734, 738 n.3 (5th Cir. 1967). We are convinced by these decisions and Judge Gibbons' well-reasoned concurrence in Conover, supra at 1096-1104, that the principles concerning judicial immunity analyzed in Pierson v. Ray, supra, do not apply to equitable relief.

 Accepting as true plaintiffs' allegation that the judges of the Family Court in Philadelphia, and particularly Judge Montemuro as Administrative Judge, have some authority over the operation of YSC pursuant to Pa. Const. Sched. Art. 5 §§ 16(c) and (q) (ii), 11 P.S. § 442 and 17 P.S. §§ 700 and 705, they can be enjoined by a federal court from continuing the allegedly unconstitutional conditions at YSC.

 The second exception to the doctrine of judicial immunity is that judges are not immune for their non-judicial activities, i.e., activities which are ministerial or administrative in nature. Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970); Doe v. County of Lake, Indiana, 399 F. Supp. 553 (N.D. Ind. 1975). In County of Lake the court was faced with a suit nearly identical to this action. The plaintiffs there had challenged the adequacy of a juvenile detention center and the quality of treatment received while confined. The court held that the defendant-judges had administrative responsibilities concerning the facility and its residents. The court concluded that the judges were not immune from suit because their activities were not judicial, and any remedy implemented would "in no way impair, interfere or otherwise affect the discretion required by these defendants in making case-by-case decision on the merits of individual juvenile situations." Id. at 557-58.

 The activities of Judge Montemuro and other Family Court judges concerning the operation of YSC are not judicial in that these defendants have only general jurisdiction over the detention center, 17 P.S. § 700, and must appoint the Board of Managers. Judge Montemuro allegedly has other administrative responsibility concerning programs at YSC. We conclude that these functions are not the type for which judicial immunity is required.


 The members of the Board of Managers and Executive Director of YSC seek immunity from suit on the theory of absolute "quasi-judicial" immunity. As the Supreme Court recently reiterated in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) (prosecutors given absolute immunity), governmental officials may be afforded absolute immunity for functions which are a part of, or related to, the judicial process. On the other hand, not all supervisory officials are absolutely immune. In Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), the Court rejected a claim of absolute immunity for school board officials, even for activities which could be characterized as adjudicatory in nature. Instead, the Court permitted only a good faith defense. We believe that the extension of an absolute immunity to governmental officials other than judges is narrow and does not include officials performing the functions of these defendants.

 It is beyond question that prison officials are subject to civil suit pursuant to 42 U.S.C. § 1983. The management of YSC, like prison administration, does not involve the adjudicatory process associated with a juvenile delinquency proceeding. The YSC Board of Managers and Executive Director are responsible for determining the conditions of confinement and the care which will be provided to YSC residents. Such decisions can only be characterized as administrative.

 In Thompson v. Montemuro, 383 F. Supp. 1200, 1206-07 (E.D. Pa. 1974), a claim of absolute immunity for YSC officials was rejected. We concur with the Thompson decision and hold that these defendants are not sufficiently involved in the judicial process of the Family Court to warrant an absolute immunity for their conduct.

 To the extent that these defendants are attempting to raise the qualified immunity extended to other public officials by Wood v. Strickland, supra, we find that we cannot rule upon that issue. At this stage of the proceedings there is insufficient evidence in the record to determine the merits of defendants' good faith defense. Imbler ...

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