Gibbons and Garth, Circuit Judges, and Teitelbaum, District Judge.*fn*
The plaintiffs, inmates of Philadelphia's Holmesburg Prison, appeal from a judgment dismissing their amended class action complaint, which seeks injunctive relief against that institution as well as money damages for the conditions of confinement in same. The plaintiffs originally filed a pro se complaint which was later amended after the appointment of counsel. The trial court dismissed at the pleading stage because of the possibility of relief under the terms of a judgment rendered in a case pending in the Court of Common Pleas of Philadelphia County. We reverse.
Proceedings in the Trial Court
In February of 1971 five inmates of the Philadelphia Prison System brought on behalf of themselves and others a class action in the Court of Common Pleas seeking equitable relief on federal constitutional grounds. That court found the Philadelphia Prison System to be operating in violation of the eighth amendment prohibition against cruel and unusual punishment. In August of 1973 the Commonwealth Court affirmed that holding but modified the Common Pleas Court order insofar as the earlier order required the appointment of a master to prepare a report and recommendation for the framing of a final decree. Hendrick v. Jackson, 10 Pa. Commw. 392, 309 A.2d 187 (1973). The Supreme Court of Pennsylvania, in July of 1974, reinstated the provision in the decree providing for the appointment of a master. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974). In March of 1976 the Common Pleas Court issued its first remedial order, which, inter alia, established a maximum inmate capacity for the Philadelphia prisons. That limit on inmate capacity, as well as other contested features of the remedial order, was affirmed per curiam by the Commonwealth Court in October of 1977. Hendrick v. Jackson, No. 1385 C.D.1976 (Pa.Commw. Oct. 17, 1977). The Common Pleas Court retained jurisdiction over the action. Between February 4, 1977 and June 29, 1983 the parties agreed upon a series of consent decrees dealing with various methods for alleviating the overcrowded conditions of the Philadelphia prisons. The Common Pleas class action did not seek damages, and the remedial decrees made no provision for individual relief for any inmate. The defendants in that action officials of Philadelphia, not of the Commonwealth. On at least one occasion those Philadelphia defendants were held in contempt, and fined, for failure to comply with various aspects of the consent degree.
In April of 1982 the plaintiffs in the instant case, none of whom were incarcerated before April 1980, filed a pro se complaint in federal district court seeking damages and injunctive relief for themselves and for a class consisting of all persons who have been inmates of Holmesburg since that date, and on behalf of future Holmesburg inmates. The amended complaint alleges that since April 30, 1982 members of the class have been deprived of rights guaranteed to them by the eighth and fourteenth amendments, in violation of 42 U.S.C. § 1983 (1982). The amended complaint acknowledges the provisions of the several litigated and consent decrees which have been entered by the Common Pleas Court, but alleges that those decrees have never been obeyed. Plaintiffs allege, for example, that the Common Pleas decree fixes the maximum capacity of Holmesburg at approximately 700 inmates, but that the current population exceeds 1300. Plaintiffs allege that, as a result of such overcrowding, they have been subjected to and injured by a long list of hazards and depriviations, and have been subject to physical and psychological injury from violent attacks, sexual assault, and threats of physical violence by other inmates. They allege further that each of the defendants, with full knowledge of the existence of unconstitutional conditions of confinement at Holmesburg, has acted or failed to act in such a way so as to exacerbate the overcrowding and resulting conditions at that institution. The defendants include the Philadelphia officials directly responsible for Holmesburg's operation, as well as two state officials, Jay C. Waldman, General Counsel for the Commonwealth and Ronald J. Marks, Commissioner of the Pennsylvania Bureau of Corrections. The Commonwealth defendants are alleged to be responsible for establishing standards for county jails and prisons, and to have made decisions respecting classification of prisoners which resulted in the overcrowding at Holmesburg.
The Philadelphia and the Commonwealth defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6).*fn1 The trial court granted these motions. The court ruled that as against the Philadelphia defendants both the claims for injunctive relief and for money damages were barred by res judicata, having been merged in and therefore barred by the decrees of the Court of Common Pleas. As to the Commonwealth defendants, who were not parties to the Common Pleas action, the court ruled that all claims against them were barred both by the eleventh amendment and by qualified official immunity. Alternatively, the court ruled that because of the pendency of the state court action it should abstain from adjudicating any aspect of the case and, accordingly, dismissed it entirely.
As we noted above, the Common Pleas Court action did not litigate any claims for money damages. Nor did it litigate events occurring after April 30, 1982.Thus the Philadelphia defendants do not urge that the plaintiffs are collaterally estopped either factually or legally -- barred by issue preclusion -- because of any determination made by the Court of Common Pleas. See Restatement (Second) of Judgments § 27 (1982). Indeed, quite the opposite is the case. The present plaintiffs, who were not inmates of Holmesburg at the time of the 1972 litigation, will contend, if the case goes to trial, that the Philadelphia defendants are collaterally estopped from attempting to defend the constitutionality of conditions of confinement at Holmesburg.*fn2 See Restatement (Second) of Judgments § 27 (1982).
What the Philadelphia defendants do urge, however, is that the named plaintiffs in tis action and the class members whom they represent are barred by res judicata -- claim preclusion -- from asserting any claim which might have been asserted in the 1971 Common Pleas case. See Restatement (Second) of Judgments §§ 24, 41 (1982).
When determining the judgment preclusion effect of a judgment rendered by a state court, we are referred to the law of the rendering state. 28 U.S.C. § 1738 (1982); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). But while federal courts are directed by statute to look to state law for determination of the judgment preclusive effects of state judgments, state law itself is subject to the limitations of due process. Thus there are due process limitations upon the authority of states to attempt to bind by judgment non-participants in the underlying state lawsuit. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S. Ct. 2140, 2151, 40 L. Ed. 2d 732 (1974); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940). The position of the Philadelphia defendants is that the 1971 Common Pleas action forever bars claims for injunctive relief and damages, not only by claimants who were inmates in 1971, but also by inmates who did not become so until more than a decade later.
We need not decide whether Pennsylvania law would violate due process should it purport to go that far in applying claim preclusion. Plainly Pennsylvania law is not so extreme.
Pennsylvania applies res judicata -- claim preclusion -- only after a final judgment on the merits. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).Even after judgment, "it is well settled that for the doctrine of res judicata to prevail there must be a concurrence of four conditions: 1) identity of issues, 2) identity of causes of action, 3) identity of persons and parties to the action, and 4) identity of the quality or capacity of the parties suing or sued." Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 345 A.2d 664, 668 (1975). We assume arguendo, that despite the retention of jurisdiction by the Common Pleas Court, its liability determination would be treated by Pennsylvania as a final judgment on the merits. It must nevertheless satify the conjunctive four factor tests quoted above. That test is not satisfied by the Common Pleas Court judgment.
There is no identity of causes of action between the plaintiffs in the 1971 lawsuit and this one. No member of the present class even had a cause of action, either for injunctive relief or for damages, growing out of the conditions in Holmesburg in 1971, for no such class member was subjected to those conditions. A Pennsylvania judgment is not conclusive on matters which by reason of the nature of the case could not have been adjudicated. E.g., Folmar v. Elliot Coal Mining Co., 441 Pa. 592, 272 A.2d 910 (1971); Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967); Maslo Mfg. Corp. v. Proctor Elec. Co., 376 Pa. 553, 103 A.2d 743, cert. denied, 348 U.S. 822, 75 S. Ct. 36, 99 L. Ed. 648 (1954). Indeed it could not have been anticipated in 1971 that the class members now before us would ever arrive in Holmesburg. Moreover there was no time at which notice could have been given to them so as to afford current class members an opportunity to assert the claims now claimed by the Philadelphia defendants to be barred. See Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 (3d Cir.1973); Restatement (Second) of Judgments § 42(1)(a) (1981). No steps were taken in the Common Pleas Court action to impose on any party in that action the responsibility for discharging fiduciary obligations to unknown potential future inmates. Thus there is no identity of persons or parties between the present class members and the named plaintiffs in the Common Pleas Court action. The Philadelphia defendants have not referred us to any Pennsylvania case suggesting that the Courts of the Commonwealth would apply claim preclusion, on the basis of a 1971 lawsuit, against non-parties, who could not have been notified of its pendency, so as to bar claims for injunctive relief and damages for events occurring over ten years.
The trial court erred, therefore, in holding that res judicata -- claim preclusion -- bars the instant action against the Philadelphia defendants.
The Commonwealth defendants, Waldman and Marks, contend that the action against them for either injunctive relief or damages is barred by the eleventh amendment. The claims asserted against them are predicated upon alleged violations of the Constitution. They are charged with individual acts taken under color of state law. No payments are sought from the Commonwealth Treasury. Compare Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). No relief is sought against them under state law. Compare Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). They remain subject to actions for injunctive relief, Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), and to actions for money damages, except to the extent that they may enjoy official immunity.
Plaintiffs claim Waldman and Marks made decisions which allegedly contributed to the unconstitutional conditions at Holmesburg. Waldman and Marks are not parties to the action in the Court of Common Pleas, but, according to plaintiffs, have been responsible in part for the failure of that court to achieve compliance with its decree. The trial court accepted their argument that the official immunity holding in Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S. Ct. 2727, 2739-39, 73 L. Ed. 2d 396 (1981) barred the plaintiffs' claim for monetary relief because the complaint did "not contain allegations of sufficient specificity to defeat their qualified immunity as state officials with discretionary powers." App. 18.
The qualified immunity defense only applies, of course, to claims for money damages. The trial court correctly so assumed and relied on different grounds for dismissing the action for injunctive relief against Waldman and Marks. Initially we note that qualified immunity is an affirmative defense. There is no pleading requirement that a plaintiff must anticipate such a defense. Marks and Waldman did not move for summary judgment; thus there is no ...