ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-0640)
Before Seitz, Chief Judge, and Rosenn and Higginbotham, Circuit Judges.
This appeal concerns, among other things, the existence vel non of causes of action for damages by a prisoner sentenced as a "young adult offender" under the Youth Corrections Act (YCA), 18 U.S.C. §§ 5005-5026, because of the government's failure to provide him with the treatment and segregation required by the YCA. The district court held that no private cause of action was implied in the YCA; that no cause of action for damages existed in the appellant's favor under the fifth, eighth or fourteenth amendments; that the claims for injunctive and declaratory relief were mooted by the appellant's parole on the YCA sentence; and that the appellee, Carlson, was not personally served as required by Fed.R.Civ.P. 4(d)(1).
For the following reasons, we agree with the district court that no private cause of action can be implied in the YCA and that service on Carlson in his individual capacity was not properly accomplished under Fed.R.Civ.P. 4(d)(1). In contrast to the district court, however, we conclude that the appellant's requests for injunctive and declaratory relief are not moot and that a cause of action for damages exists directly under the fifth amendment.
The following statement of facts is taken from the pro se complaint filed in this case by the appellant, Gregory Micklus. Because this is an appeal from the grant of the appellees' motion to dismiss, the facts as pleaded in the complaint will be treated as true. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S. Ct. 2490, 2492 n.2, 53 L. Ed. 2d 557 (1977).
On September 30, 1974, Micklus was sentenced by the U.S. District Court for the District of Arizona after pleading guilty to armed bank robbery, a violation of 18 U.S.C. § 2113(d). He was sentenced as a young adult offender to a thirteen to fifteen year term of imprisonment.*fn1 The trial judge could have sentenced Micklus as an adult offender to a maximum term of twenty-five years.
At the time of his sentencing, Micklus was twenty-five years old. He was designated to serve his term initially at the U. S. Penitentiary at McNeil Island, Washington, an adult facility, where it was recommended that he be placed in "close custody," and where he allegedly received no training or treatment. In February 1975, he was transferred to the U. S. Penitentiary at Leavenworth, Kansas, another adult facility, "for more effective custody." While there, he was charged with disciplinary infractions. He claimed these infractions occurred when he was defending himself against a homosexual attack by fellow prisoners in Leavenworth's carpentry shop.
In September 1975, he was transferred to the U.S. Penitentiary at Marion, Illinois where appellee, Charles Fenton, was the warden. Micklus remained in the adult population and allegedly was subjected to homosexual attacks by four prisoners in three separate incidents between July 15, and July 22, 1976. He claims that he attempted an escape from Marion as a result of these assaults and because of certain additional threats by other prisoners.*fn2 He was wounded by prison guards during his escape attempt. Following his conviction in the Eastern District of Illinois for attempted escape, he was sentenced to a regular five-year adult term to be served consecutively to his YCA sentence. As a result of the escape attempt and his conviction, Micklus was placed in administrative segregation, otherwise known as the "control unit."
On June 17, 1977, upon his release from the Marion control unit, he was transferred to the U.S. Penitentiary at Terre Haute, Indiana, where on June 23 he was charged with misconduct for refusing to enter the general population. His reasons were "fears of homosexual pressures and my being labeled as an informant while confined at Marion." As a result of this refusal to enter the general population, he was transferred to the U.S. Penitentiary at Lewisburg, Pennsylvania, on September 21, 1977. As at Terre Haute, Micklus refused to enter Lewisburg's general population in October and November 1977 and he was charged with misconduct for these refusals. Fenton was warden at Lewisburg while Micklus was confined there.
Lewisburg officials referred Micklus' case on November 11, 1977 for possible transfer to McNeil Island. On January 1, 1978, he was referred to the Federal Correctional Institution at Lompoc, California and was accepted. Because he filed a habeas corpus action not directly connected to the instant case, his movement from Lewisburg to Lompoc was temporarily prevented. On March 13, 1978, the U.S. District Court for the Middle District of Pennsylvania, in response to Micklus' habeas corpus petition, ordered him transferred to a facility where he would be segregated from regular adult offenders and would receive treatment as required by 18 U.S.C. § 5011.*fn3 The court found that Micklus' incarceration at Lewisburg was in violation of Section 5011 of the YCA and that Lompoc did not qualify as an institution where he would receive the required segregation and treatment. The government's appeal was dismissed as moot because of Micklus' parole from his YCA sentence on September 1, 1978. Micklus v. Carlson, 591 F.2d 1336 (3d Cir. Jan. 31, 1979).
On July 6, 1978, the pro se complaint in this action was filed. The action was brought pursuant to the YCA and the first, fifth, eighth and fourteenth amendments, seeking both legal and equitable relief. Micklus named as defendants Carlson, Director of the U.S. Bureau of Prisons, and Fenton, Warden of the U.S. Penitentiary at Lewisburg. The complaint does not specify whether the plaintiff asserts his claims against the defendants in their official or individual capacities. Before the defendants responded to the complaint, Micklus was paroled from his YCA sentence. The defendants thereafter filed a motion to dismiss, or, in the alternative, for summary judgment.
On November 27, 1978, the Magistrate recommended that the complaint insofar as monetary damages were sought be dismissed as to Carlson, and that Micklus be given the opportunity to amend the complaint insofar as monetary damages were sought against Fenton in order to provide specifics of Fenton's affirmative involvement in the deprivation of Micklus' rights. Report of Magistrate (Nov. 27, 1978), reprinted in App., at 43a-51a. After objections to this report were filed by both parties in the form of exceptions and motions, the district court remanded the case to the Magistrate. The Magistrate adhered to his initial recommendations and further recommended that the complaint be dismissed insofar as money damages were sought against Fenton. Report of Magistrate (Feb. 26, 1979), reprinted in App., at 54a-62a.
On April 23, 1979, the district court adopted the recommendations of the Magistrate and held that there was no implied private right of action for money damages for violations of the YCA's mandatory requirements of segregation of youth offenders and of treatment, nor was there a cause of action for violations of constitutional rights. The court also based its dismissal of the complaint for damages against Carlson on insufficient service of process because the U.S. Marshal did not serve Carlson personally in accordance with Fed.R.Civ.P. 4(d)(1). The district court further concluded that mootness prevented the complaint from stating a claim for injunctive relief because Micklus had been paroled from his YCA sentence after the complaint had been filed.
An appeal, filed with this court on April 30, 1979, was certified by the court below as frivolous on May 4, 1979. Micklus then filed motions seeking permission to proceed in forma pauperis before this court and for the appointment of counsel. These motions were granted on July 23, 1979. After the appeal was taken, Micklus was transferred from Lewisburg to Lompoc, California. Counsel for the plaintiff was appointed on September 6, 1979.*fn4
Micklus sought the following equitable relief: a declaratory judgment that the defendants violated his constitutional rights; an injunction prohibiting his transfer to a facility not in compliance with the YCA; an injunction requiring the defendants to implement regulations that comply with the mandatory treatment and segregation provisions of the YCA; and such other equitable relief as the court deemed appropriate. In dismissing as moot Micklus' request for equitable relief, the district court only addressed one of these four requests for equitable relief, the injunction against a transfer to an institution not complying with the YCA. The district court believed this was moot because "since the Plaintiff at this time is serving and imprisoned for only one term, the five-year regular adult term imposed upon his conviction for attempted escape, he no longer has standing to seek declaratory or injunctive relief as a prisoner entitled to special consideration by virtue of 18 U.S.C. § 5011." Micklus v. Carlson, No. 78-640 (M.D.Pa. Apr. 23, 1979), at 2, reprinted in App. at 65a. We do not agree that the mere granting of parole on the YCA sentence renders Micklus' non-monetary claims moot.
Micklus has not been unconditionally released from his YCA sentence and is still subject to that sentence until 1989. Under Section 5020 of the YCA, a committed youth offender who has been conditionally discharged from YCA custody may be recommitted if the U.S. Parole Commission (Commission) determines that he would benefit from recommittal.*fn5 Micklus thus faces a realistic possibility of reincarceration under the YCA until 1989. His request for injunctive and declaratory relief is therefore not moot.
The district court relied on Preiser v. Newkirk, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975), in holding this case moot. In Preiser, a prisoner was transferred to a maximum security prison from a medium security prison, without notice or an opportunity to be heard. The prisoner sought, via injunctive relief, return to the medium security prison. In light of the prisoner's return to the medium security facility, and subsequent transfer to a minimum security facility, the Supreme Court dismissed the action because it was moot. It reasoned that the prisoner had no reasonable expectation that the wrong of the complaint would be repeated and that to avoid mootness, the issue must bear out "a genuine claim of injury or possible injury of "sufficient immediacy and reality' . . . ." Id. at 403, 95 S. Ct. at 2335.
In contrast in this case, because of the low standard for reincarceration on the YCA sentence and because of the history of Micklus' confinement in noncomplying facilities, Micklus's request for an injunction against reincarceration on his YCA sentence in a noncomplying facility is a "genuine claim of . . . possible injury of sufficient immediacy and reality." While the Commission cannot be totally arbitrary, it may nevertheless revoke Micklus' parole status if "at any time . . . (it) is of the opinion that (he) will be benefited by further treatment in an institution or other facility." 18 U.S.C. § 5020. A real threat of reincarceration on the YCA sentence therefore exists and the issue is not moot.
In dismissing the prisoner's claims as moot, the district court also relied on LoCicero v. Day, 518 F.2d 783 (6th Cir. 1975), where a prisoner challenged the factors that a parole board considered in denying him parole. Subsequent to the filing of the suit, the prisoner was granted parole and the district court dismissed the action as moot. Thus, the relief sought-parole-was granted. That obviously moots any controversy. But here, the relief sought-treatment, segregation and the issuance of regulations by the Bureau of Prisons that implement the YCA-has not already occurred. We are not unmindful of the appellees' strong arguments in favor of ...