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September 14, 1983


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

 Plaintiffs have brought suit under 42 U.S.C. § 1983 challenging the constitutionality of the Pennsylvania Juvenile Pretrial Detention statutes. The pertinent portions are attached hereto as an appendix. Plaintiffs seek damages, declaratory and injunctive relief. I have certified a plaintiffs' and a defendants' class. Plaintiffs' class consists of all allegedly delinquent juveniles in Pennsylvania who are or will in the future be detained before adjudication pursuant to 42 Pa. Cons. Stat. Ann. §§ 6325 and 6335, and all adjudicated delinquent juveniles who are now or in the future will be detained before their disposition hearing pursuant to § 6341.

 The defendant class is composed of all juvenile court judges and masters and all juvenile probation officers in Pennsylvania who are now or who will be responsible for hearing delinquency matters and conducting detention procedures.

 Defendants have moved for judgment on the pleadings and/or for partial decertification of plaintiffs' class. Defendants argue that named plaintiffs do not have standing to represent the interest of future pretrial detainees; that those named plaintiffs who were in detention at the time of filing the complaint must bring a habeas corpus action, exhausting their remedies in state court, rather than a suit under § 1983; and that Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) or Railroad Commissioner v. Pullman, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) or Burford v. Sun Oil Company, 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943) requires that I abstain from deciding the merits of the case. I shall deny defendants' motion.

 I. Standing

 There are four named plaintiffs. At the time of the filing of the complaint, plaintiffs Coleman and Mattox had already been released from detention; plaintiffs Lawrence and Freddie Wiggins were in detention pursuant to the provisions of the challenged statute.

 Defendants argue that named plaintiffs Coleman and Mattox lack standing. Article III of the United States Constitution requires that those who seek to invoke the jurisdiction of the federal courts must allege an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). A plaintiff must show that he has a "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962) and that he "has sustained or is immediately in danger of sustaining some direct injury." City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675, 51 U.S.L.W. 4424, 4426 (1983).

 Defendants agree that named plaintiffs Mattox and Coleman would have standing to assert a valid damages claim. Defendants argue, however, that the claim of Coleman and Mattox for damages is faulty because defendants are judges and probation officers who would enjoy at least a good faith immunity. Because it is clear from the pleadings that plaintiffs were detained pursuant to a state statute which has not previously been found unconstitutional, defendants claim that their good faith immunity is established by the pleadings. Defendants fail to consider, however, that Montgomery County is also a named defendant in this action. Even if I were to find that individual judges and probation officers were immune *fn1" because of absolute or good faith immunity, the county would not acquire immunity and would still be subject to a suit for damages. See Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980). Therefore, plaintiffs Mattox and Coleman have standing to bring their damages action in federal court.

 The question then arises whether any of the named plaintiffs have standing to seek injunctive and declaratory relief. In City of Los Angeles v. Lyons, supra, the plaintiff had suffered injury as a result of a chokehold applied to him pursuant to Los Angeles police regulations. The Court held that Lyons clearly presented a case or controversy as to the damages claim, but that he did not have standing to seek injunctive relief because his standing to claim damages did not establish "a real and immediate threat" that he would again be stopped and choked into unconsciousness. Clearly, therefore, under Lyons, if this case were brought solely by Coleman and Mattox in their individual capacity, they would not have standing to seek an injunction of the pretrial detention statute.

 Because I find that plaintiffs Freddie and Lawrence Wiggins have standing to seek injunctive and declaratory relief, I need not reach the question of whether the claims of Coleman and Mattox for damages would be sufficient to grant them standing to seek injunctive and declaratory relief in a class action suit. Like defendants here, however, courts have tended to confuse the requirements for standing and class representation under Federal Rule of Civil Procedure 23. "Class Standing and the Class Representative," 95 Harv.L.Rev. 1637 (1981).

 I have already certified the class to include all juveniles who will be detained in the future pursuant to the provisions in question. There is a point where the class becomes the plaintiff in a lawsuit. In mootness cases, it appears that that point occurs at certification of the class. Id. at 1643 n.39. See Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975) (holding that even though the class was moot as to the named plaintiff, the case was live for the class which plaintiff had been certified to represent). Because the class in this case is defined to include all who will be detained in the future, there is no question that there is a "real and immediate threat" that class members will be subject to the application of the allegedly unconstitutional provisions of the statute. Therefore, the allegations of Coleman and Mattox of specific injury, coupled with an unambiguous, well-defined class whose members will unavoidably be subject to the allegedly unconstitutional statute would distinguish this case from O'Shea v. Littleton, 414 U.S. 488, 494-95 n.3, 496, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974).

 The real question here is whether Coleman and Mattox are adequate class representatives. I have already concluded that Coleman and Mattox fulfill the requirements for adequate representation. Their attorney is qualified, experienced, and able to conduct this litigation and Coleman and Mattox do not have interests that are antagonistic to those of the class. Wetzel v. Liberty Mutual Insurance Company, 508 F.2d 239, 247, cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975).

 As I noted above, plaintiffs need not rely, however, on the standing of Coleman and Mattox to bring their damages claim in order to pursue injunctive relief. At the time of the filing of the complaint, named plaintiffs Freddie and Lawrence Wiggins were in custody pursuant to the challenged provisions of the statute. Therefore, the Wiggins brothers have standing to request injunctive and declaratory relief. *fn2"

 II. Exhaustion of State Remedies

 Defendants claim that even though plaintiffs Wiggins have standing to bring this suit for declaratory and injunctive relief, the suit is barred by the doctrine set forth in Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973) as to them and those members of the plaintiffs' class presently in detention.

 In Preiser, plaintiffs were state prisoners who brought a civil rights action in federal court under 42 U.S.C. § 1983, alleging that they had been deprived unconstitutionally of their good conduct time credits. Plaintiffs sought injunctive relief to restore the credits, which in each case would result in their immediate release. The Court held that a habeas corpus action under 28 U.S.C. § 2254 was plaintiffs' exclusive remedy because plaintiffs' suit attacked the very "fact and duration" of their confinement.

 The Court distinguished the case from one challenging conditions of confinement, stating that a suit challenging conditions rather than the fact or duration of confinement is the proper subject of a § 1983 action. Furthermore, the Court stated that there are situations in which a plaintiff could choose to bring either a federal habeas corpus action or a § 1983 suit. Id. at 499.

 The Court's holding in Preiser is significant because the federal habeas corpus statute requires that a litigant exhaust state remedies before bringing suit in federal court, a requirement that is absent from 42 U.S.C. § 1983. Thus, in the case at bar, if defendants are correct in asserting that the Preiser doctrine applies to plaintiffs' suit, I would be forced to dismiss the case, requiring plaintiffs to go to state court first.

  It would appear at first blush that a suit challenging the preventive detention statute challenges the fact or duration of plaintiffs' confinement and would therefore be governed by the Preiser doctrine. I find, however, that the Preiser doctrine is inapplicable to the case before me. Since Preiser, the United States Supreme Court has decided two cases which limit the broad language set forth in Preiser. In Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), a case arising in Florida that challenged the plaintiffs' pretrial detention without a probable cause hearing, the Court found the Preiser doctrine inapplicable because plaintiffs did not seek and the court did not order release from custody as a remedy. The only relief sought in Gerstein was an order that the state grant plaintiffs a probable cause hearing. Id. at 107 n. 6.

 In Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the plaintiffs brought a suit under 42 U.S.C. § 1983 challenging procedures and practices in the Nebraska prisons. The Court upheld the court of appeals' decision that Preiser precluded the district court from granting the remedy sought in the complaint -- a restoration of good time credits. However, the Court held further that Preiser did not preclude the district court from examining the validity of the procedures employed in the Nebraska prison system for imposing sanctions on prisoners, including the withdrawal of good time credits. In Wolff, the Court held that the district court had to determine the constitutionality of the state prison system's procedures because plaintiffs had brought a damages action which was a proper subject of a claim brought pursuant to 42 U.S.C. § 1983. The Court went even further. It stated that the Preiser doctrine would not bar a litigant from obtaining an injunction of the prospective enforcement of unconstitutional prison regulations. The Court stated:

Such a declaratory judgment as a predicate to a damages award would not be barred by Preiser ; and because under that case, only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.

 Id. at 555 (emphasis added).

 Thus, in order to avoid the habeas requirement of exhaustion, whatever relief I may grant, except damages, can be prospective only.

 Wright v. Cuyler, 624 F.2d 455 (3d Cir. 1980) further supports my conclusion. In Wright, the court held that the Preiser doctrine was inapplicable to a prisoner who challenged the Pennsylvania Bureau of Corrections' application to plaintiff of eligibility standards for the state prisoner's prerelease furlough. Even though a finding by the court that the eligibility standards were unconstitutional, as applied to plaintiff, would result in shortening plaintiff's period of confinement, the court distinguished Preiser.

 In distinguishing Preiser, the Third Circuit in Wright, like the Supreme Court in Gerstein and Wolff, emphasized the relief sought by the plaintiff. In Wright, the plaintiff challenged the procedures used by officials to determine eligibility for the furlough program, and demanded a fair application ...

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