The opinion of the court was delivered by: LUONGO
This civil rights action is before me on a motion filed by several of the defendants seeking either dismissal of the complaint or an entry of summary judgment. Fed. R. Civ. P. 12(b), 56. I have concluded that, as to certain defendants, the Eleventh Amendment to the Constitution bars this lawsuit and that, as to the remaining defendants, summary judgment may not properly be entered at this time.
The complaint filed by plaintiff, Hajji A. R. Ahmad, alleges the following facts: Upon his conviction in the Delaware County Court of Common Pleas in January, 1975, Ahmad was placed on special probation for two years. The Pennsylvania Board of Probation and Parole had the overall supervisory responsibility for Ahmad. Ernest Holmes was the Parole Agent assigned to Ahmad's case, and John Burke was the Supervisor of the entire Men's Probation Department. The terms of Ahmad's probation required him to obtain written permission for any travel outside Pennsylvania. On or about January 19, 1976, Ahmad requested of Holmes, and received, a three-day permit authorizing him to travel to Washington, D.C. in order to file an action in the federal district court there. Ahmad made the trip and, upon his return, sought permission "to return to Washington in connection with the prosecution of" the action he had filed. Holmes, and then Burke, denied this request and "stated that no other travel permits would be issued" to Ahmad. Ahmad then filed Civil Action No. 76-256 in this court, naming Holmes and Burke as defendants, in an effort to vindicate his right to travel. He served a copy of the complaint on Holmes and Burke personally on January 28, 1976. At that point, Burke ordered plaintiff to appear the next morning for a hearing on whether his probation should be revoked based on his "failure to pay the fine and costs" imposed at his 1975 sentencing. When Ahmad appeared at Burke's office the next morning, he was arrested by Burke, Holmes, and Probation Officer Blivan, and incarcerated in Delaware County Prison. Ahmad remained in prison for seven days, during which time he was not afforded a hearing. He was then released pending the probation revocation hearing. That hearing was held on March 15, 1976, but was continued in order to obtain testimony from a court clerk regarding the arrangements Ahmad had made for payment of his fine. On March 16, Ahmad paid the fine in full. At the continued hearing on May 3, 1976 "the court found no violation of parole [sic]."
Plaintiff relies on 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986, as well as the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution, for his right to relief. He seeks $250,000 in compensatory damages and $500,000 in punitive damages.
The motion presently before me was filed on behalf of the Commonwealth, the Board, and the individual members of the Board. These defendants seek either dismissal of the complaint for want of subject-matter jurisdiction or for failure to state a claim, or entry of summary judgment. Defendants Burke and Holmes are not parties to this motion.
The Eleventh Amendment to the Constitution, adopted in 1798, provides:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
While the Amendment by its terms speaks only to suits brought by citizens of other states, the Supreme Court long ago interpreted the Amendment as incorporating the common law doctrine of sovereign immunity that bars suits against a state by citizens of that state. Hans v. Louisiana, 134 U.S. 1, 15-18, 33 L. Ed. 842, 10 S. Ct. 504 (1890). Ever since the decision in Hans, the Eleventh Amendment itself has consistently been read to bar such suits. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Thus, although Ahmad is a citizen of the Commonwealth of Pennsylvania, the Eleventh Amendment bars this unconsented-to damages action against the Commonwealth, and the complaint will be dismissed as to the Commonwealth for want of subject-matter jurisdiction.
The same problem arises with respect to defendant Board. A state agency may fall within the scope of the Eleventh Amendment if it is "an arm of the State," Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), or if it is the state's "alter ego." E.g., George R. Whitten, Jr., Inc. v. State Univ. Constr. Fund, 493 F.2d 177, 180 (1st Cir. 1974), quoting Charles Simkin & Sons, Inc. v. State Univ. Constr. Fund, 352 F. Supp. 177 (S.D.N.Y. 1973). See generally Note, A Practical View of the Eleventh Amendment -- Lower Court Interpretations and the Supreme Court's Reaction, 61 Geo. L.J. 1473, 1483-89 (1973); 22 Vill. L. Rev. 153, 158-63 (1977). In determining whether a state agency may partake of the state's Eleventh Amendment immunity, the fundamental issue is "whether the governmental entity has powers sufficiently distinct and independent from the state as not to be considered a part of the state." Flesch v. Eastern Pa. Psychiatric Inst., 434 F. Supp. 963, 976 (E.D. Pa. 1977); see Mount Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. at 280. With this background in mind, I turn to a review of the Board's structure and powers.
The Board was established in 1965 as "an independent administrative board for the administration of the probation and parole laws of this Commonwealth." Act of December 27, 1965, P.L. 1230, § 2, 61 P.S. § 331.2 (West Supp. 1977). Its five members are appointed by the Governor of Pennsylvania. The Board has the exclusive power to grant and revoke parole, 61 P.S. § 331.17 (West Supp. 1977), to supervise any person placed on probation, 61 P.S. § 331.17a (West Supp. 1977), and "to make general rules for the conduct and supervision" of persons on parole. 61 P.S. § 331.23 (1964). In addition, the chairman of the Board is authorized "to deputize any person to act as an officer and agent of this state" in securing the return of probation or parole violators. 61 P.S. § 331.21b (1964). The Board's powers, in short, are not those of an agency "sufficiently distinct and independent from the state as not to be considered a part of the state." This conclusion is further supported by 61 P.S. § 331.10 (West Supp. 1977), which authorizes the Board "to enter into contracts on behalf of the Commonwealth" for office space and equipment for the Board's district offices. Finally, the Board enjoys no financial independence from the Commonwealth. Its budget, like those of all boards and administrative departments, is established pursuant to Article VI of the Administrative Code of 1929, 71 P.S. §§ 221-28 (1964 & West Supp. 1977), which gives the Governor the right to amend or disapprove any budget request submitted by any board or department. 71 P.S. § 224 (West Supp. 1977).
Further evidence of the Board's close relationship to the Commonwealth may be found in the Pennsylvania decisions on sovereign immunity. The Pennsylvania Constitution, art. I, § 11, provides: "Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." In two recent decisions, the Commonwealth Court of Pennsylvania held that suits against the Board were unauthorized suits against the Commonwealth. Reiff v. City of Philadelphia, 27 Pa. Commw. Ct. 504, 365 A.2d 1357 (1976); Freach v. Commonwealth, 23 Pa. Commw. Ct. 546, 354 A.2d 908 (1976), modified 471 Pa. 558, 370 A.2d 1163 (1977). Although the question whether a state agency partakes of the state's Eleventh Amendment immunity is clearly a federal question, state law governs the relationship between the agency and the state, and therefore state law often can inform a court's resolution of the Eleventh Amendment question. See Lankford v. Platte Iron Works Co., 235 U.S. 461, 474, 59 L. Ed. 316, 35 S. Ct. 173 (1915); cf. Mount Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 62 (3d Cir.) (en banc), cert. denied, 429 U.S. 979, 50 L. Ed. 2d 588, 97 S. Ct. 490 (1976).
For the reasons stated above, I conclude that the Board is immune from suit by virtue of the Eleventh Amendment. Accord, Reiff v. Commonwealth, 397 F. Supp. 345, 349 n.2 (E.D. Pa. 1975) (alternative holding); cf. Pate v. Alabama Board of Pardons and Paroles, 409 F. Supp. 478, 479 (M.D. Ala. 1976) (Alabama Board of Pardons and Paroles). The complaint will be dismissed as to defendant Board for lack of subject-matter jurisdiction.
As to the individual Board members who are named as defendants, since plaintiff seeks to recover damages, I must determine whether he is proceeding against the Board members in their official capacities or as individuals. See, e.g., Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462-64, 89 L. Ed. 389, 65 S. Ct. 347 (1945); Thonen v. Jenkins, 517 F.2d 3, 6 (4th Cir. 1975); McCartney v. West Virginia, 156 F.2d 739 (4th Cir. 1946); Jones v. Manson, 393 F. Supp. 1016, 1021 (D. Conn. 1975); Carey v. White, 375 F. Supp. 1327, 1329 (D. Del. 1974). The Eleventh Amendment bars a damage award against a state official in his official capacity.
Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462-64, 89 L. Ed. 389, 65 S. Ct. 347 (1945); Condosta v. Vermont Elec. Coop., Inc., 400 F. Supp. 358, 361 (D. Vt. 1975); Hazzard v. Weinberger, 382 F. Supp. 225, 227 (S.D.N.Y. 1974). Where a personal judgment for damages is sought against a state official, however, the Eleventh Amendment is no bar to the suit, Scheuer v. Rhodes, 416 U.S. 232, 238, 40 L. ...