The opinion of the court was delivered by: SHAPIRO
NORMA L. SHAPIRO, UNITED STATES DISTRICT JUDGE
I. Facts and Procedural History
Plaintiffs assert this civil rights action on behalf of themselves and all persons similarly situated in regard to conditions of confinement in prisons in the City of Philadelphia. Plaintiffs allege that Commonwealth and City officials responsible for the conditions of confinement in City prisons are violating the Eighth Amendment to the Constitution of the United States. A hearing on plaintiffs' motion to approve a settlement agreement between plaintiffs and the City defendants,
presented preliminarily to the court on October 10, 1986, was held on December 11, 1986. Upon full consideration of written submissions, including objections of the District Attorney of Philadelphia County, and a hearing on the settlement, the court approved the settlement between the plaintiffs and the City defendants as fair, reasonable and adequate to the class in an order dated December 30, 1986 (Order as amended January 6, 1987). This memorandum states the court's reasons for doing so.
This action was commenced by the filing of a pro se complaint and request to proceed in forma pauperis by ten Holmesburg Prison inmates on behalf of themselves and all other persons similarly situated. Plaintiffs' action, pursuant to 42 U.S.C.A. § 1983 (West 1981), alleged that the conditions of confinement in Holmesburg Prison violated the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiffs sued the Commissioner of the Department of Human Services of the City of Philadelphia, the members of the Board of Trustees of the Philadelphia Prison System, the Superintendent of the Philadelphia Prisons, the Warden of Holmesburg Prison, and the Medical Director of the Philadelphia Prisons, in their individual and official capacities. Leave to proceed in forma pauperis was granted and counsel appointed. Plaintiffs then filed an amended complaint deleting as a defendant the Medical Director of the Philadelphia Prisons but adding as defendants the City of Philadelphia, the Managing Director of the City of Philadelphia, the Mayor of the City of Philadelphia, the Commissioner of the Pennsylvania Bureau of Corrections, and General Counsel of the Commonwealth of Pennsylvania, in their individual and official capacities. Defendants' motions to dismiss were granted on December 30, 1983 on two grounds, both of which were related to litigation pending in the state courts: res judicata and abstention. The claims against the Commonwealth defendants for money damages were dismissed on the grounds of official immunity.
In February, 1971, five inmates of the Philadelphia prison system had instituted Jackson v. Hendrick, a class action in equity in the Court of Common Pleas of Philadelphia County, Pennsylvania, to attack the constitutionality of their conditions of confinement and request injunctive relief against prison and city officials and the City of Philadelphia. On April 7, 1972, a three-judge court held that conditions in the Philadelphia County prisons violated the rights of inmates under, inter alia, the United States and Pennsylvania Constitutions; the decree nisi appointed a Prison Master to administer the court's corrective decree. On June 7, 1972, the decree became final; it was later affirmed by the Pennsylvania Supreme Court. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974). The three-judge state court retained jurisdiction and continued to issue remedial orders and approve consent decrees entered into by the parties.
One order established a maximum inmate capacity for the Philadelphia prison system based on "one man-one cell." Nonetheless, plaintiffs here contended that unconstitutional conditions persisted.
The United States Court of Appeals, reversing the judgment of this court (Opinion by Gibbons, J.; Garth, J., dissenting), held that the Court of Common Pleas' judgment was not res judicata of the claims made in this action. The court explained:
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.
Harris v. Pernsley, 755 F.2d 338, 342 (3d Cir. 1984) (citations omitted).
The Court of Appeals also held that this was not a proper case for abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), because the plaintiffs sought money damages in federal court which the plaintiffs in the state court action did not. Harris, 755 F.2d at 346. The court stated,
The mere pendency of a state court injunction predicated on federal law, which according to the complaint has not produced an alleviation of ongoing violations of the Constitution, is not such an exceptional circumstance as to relieve the federal courts of 'the virtually unflagging obligation . . . to exercise the jurisdiction given them.'
Petitions for rehearing were denied on March 21, 1985. Harris v. Pernsley, 758 F.2d 83 (3d Cir. 1985) (Judges Adams, Hunter, Weis, Garth, and Becker would have granted the petition for rehearing). Id. Defendants petitioned the United States Supreme Court for a writ of certiorari; the petition was denied on November 4, 1985. 474 U.S. 965, 106 S. Ct. 331, 88 L. Ed. 2d 314 (1985) (Justices Rehnquist and O'Connor would have granted certiorari; Chief Justice Burger dissented from the denial of the writ). Id.
Following remand, the trial court granted leave to file a second amended complaint in order to provide adequate class representation. Plaintiffs filed a second amended complaint on behalf of an expanded class of past, present and future inmates of all Philadelphia prisons and added the wardens of the Detention Center and the House of Corrections in their individual and official capacities as party defendants. The plaintiffs and City defendants also began settlement negotiations. This court was informed on August 8, 1986, that proposed related settlements had been reached in both the state and federal actions. A preliminary hearing on approval of the federal settlement was tentatively scheduled.
On August 19, 1986, District Attorney Ronald D. Castille moved to intervene as a party defendant pursuant to Fed.R.Civ.P. 24 in order to oppose the settlement. Mr. Castille sought intervention as of right pursuant to Fed.R.Civ.P. 24(a) or, in the alternative, permissive intervention pursuant to Fed.R.Civ.P. 24(b). A revised proposed consent order, of which the District Attorney was notified, was preliminarily presented to the court on October 10, 1986 and thereafter incorporated in a settlement agreement of November 14, 1986, amended by Stipulation of December 23, 1986, filed with the court. Briefing on the District Attorney's motion to intervene in opposition to settlement, an evidentiary hearing and oral argument followed; after a joint memorandum in support of the revised settlement was filed, a hearing on the proposed revised settlement and consent order was scheduled and publicized in the news media. In addition to publication of the notice of the hearing in The Legal Intelligencer, articles appeared in the Philadelphia Inquirer and the Philadelphia Daily News and the proposed settlement, District Attorney's opposition, and the court proceedings were reported by numerous radio and television broadcasts on several occasions.
The court stated on December 11, 1986 that the motion of District Attorney Castille to intervene as a party defendant would be denied, but the court also expressly agreed to hear the objections of the District Attorney to the settlement agreement regardless of that denial. The Order denying that motion and the Memorandum in support of the denial were filed on December 31, 1986.
The court having considered the oral submissions on December 11, 1986, the record made by the parties and the proposed intervenor, the information submitted on request of the court, and the court's personal tour of the prisons, determined upon an independent evaluation of the proposed settlement that it was fair, reasonable and adequate. Therefore, the court approved the settlement and entered a consent order on December 30, 1986.
The settlement is conditioned upon plaintiffs' filing a revised second amended complaint and certification, pursuant to Fed.R.Civ.P. 23(b)(2), of a plaintiff class of all individuals who are, or who have been, inmates of the Philadelphia prison system since April 30, 1980 and all future inmates of the Philadelphia prison system during the time the court retains jurisdiction over the case. Under the settlement agreement, the City defendants agree inter alia "to adopt and implement a series of procedures and policies to reduce the population of the Philadelphia prison system and maintain the population at agreed-upon levels." (Settlement Agreement, para. 3, p.4).
The City defendants agree that at no time shall more than two inmates be housed in a cell in the Philadelphia prison system. The agreement requires that every inmate shall be assigned to a housing area within seventy-two (72) hours of arrival in the Philadelphia prison system. Housing areas shall not include any gymnasium, corridor or bench area, or any area not set up for permanent housing. Every inmate shall receive a mattress the first night after arrival and a bed and mattress within twenty-four (24) hours of arrival. Until his or her assignment to a housing area, each inmate shall remain in designated intake areas and receive proper bedding. (Settlement Agreement, para. 3(c), p.5)
The settlement agreement requires the City defendants to complete construction of the Philadelphia Industrial Correction Center, with at least 650 cells, by December 15, 1986 n3 and a downtown detention facility, with at least 440 beds, by December 31, 1990. It phases in the limitations on the total population of the Philadelphia prison system. As of March 9, 1987, the population may not exceed 4,100 inmates; as of May 11, 1987, it may not exceed 3,950 inmates; as of July 13, 1987, it may not exceed 3,750 inmates. The maximum allowable population must remain no more than 3,750 inmates until the downtown detention facility opens in 1990. The settlement agreement also includes a maximum population limit for each individual facility, as well as a total limit for the entire system on given dates. The maximum allowable population for each facility on and after July 13, 1987 shall be:
Detention Center 750 inmates
Holmesburg Prison 800 inmates
House of Correction 900 inmates
Women's Modular Units 200 inmates
Laurel Hall, Cannery
and YMCA 250 inmates
PICC 850 inmates
The implementation of these maximum allowable populations is left in the first instance to the City defendants and the Pennsylvania courts. (Settlement Agreement, para. 3f, p.6). The agreement provides that no federal or state prisoners, other than inmates detained for immediate court appearances, shall be housed within the Philadelphia prison system, except for those federal prisoners in the custody of the United States Marshal. Prisoners in the custody of the United States Marshal may be housed by contract between the City of Philadelphia and the United States Marshal.
The City defendants are to provide counsel for plaintiffs on a weekly basis with daily population figures for each of the facilities within the Philadelphia prison system. Because the prison population fluctuates on a daily basis, the agreement provides that the maximum allowable population may be exceeded temporarily, but not for more than seven (7) consecutive days or for more than twenty (20) out of any forty (40) days. If the population of any facility exceeds its maximum allowable population, the agreement provides that the City defendants will seek the release, through the mechanism of the Bail Master appointed by the Jackson court or otherwise, of persons being held either on the lowest bail or persons sentenced to the Philadelphia prisons with less than sixty (60) days remaining on their sentences. Such releases shall continue until the maximum allowable population is achieved or restored. However, City defendants agree not to seek release of any person charged with, or convicted of, murder or forcible rape, or any inmate whose release would constitute imminent threat to public safety or to the inmate's own health, safety, or welfare. (Settlement Agreement, para. 5, p.8).
If the population of any facility still exceeds its maximum allowable population twenty-one (21) days from the date on which the maximum allowable population has been exceeded for more than seven (7) consecutive days or for more than twenty (20) out of forty (40) days, a bar on admission of prisoners to such facility or facilities will go into effect. The bar on additional inmates will continue until the number of inmates housed is within the maximum allowable population and new admissions will not cause the maximum allowable population to be exceeded, except that persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a knife or firearm during the commission of an aggravated assault or robbery, may always be admitted notwithstanding this bar. (Settlement Agreement, para. 6, pp. 8-9).
The City of Philadelphia agrees to pay Twenty Thousand Dollars ($ 20,000) in damages to the named plaintiffs, to be distributed as determined by counsel for plaintiffs with the approval of the court. (The consent orders entered to date have not yet implemented the provisions concerning damages or fees.) The City defendants also agree to pay plaintiffs' costs and attorneys' fees in the amount of Ninety Thousand Dollars ($ 90,000). Plaintiffs will bear their own costs in monitoring the implementation of the agreement. However, if additional proceedings are required to implement or enforce the terms of the consent order and plaintiffs obtain substantial relief from those proceedings, the City defendants will bear plaintiffs' costs and reasonable attorneys' fees. The City defendants and plaintiffs agree to propose an order in the Jackson v. Hendrick litigation that complements the settlement agreement approved by this court. This agreement is not an admission by the City defendants of any fault or liability or of the existence of any unconstitutional conditions in the Philadelphia prison system.
The court retains jurisdiction over the parties and cause of action for five (5) years. After five (5) years, unless the parties reach agreement on the issue of continued jurisdiction or plaintiffs demonstrate at a hearing that continued jurisdiction is necessary to maintain the maximum allowable populations, this court will discontinue jurisdiction. All claims against the City defendants are dismissed with prejudice; all claims against defendants Marks and Jeffes are dismissed without prejudice; the plaintiff class has also agreed to the dismissal of defendant Waldman without prejudice but he objects. Defendants Marks, Jeffes and Waldman are not parties to the settlement agreement.
Because this litigation received so much publicity in the months immediately preceding the settlement hearing, the court determined that due process did not require any additional notice to the class before the equitable relief was approved. While some form of post-settlement notice is mandatory under Fed.R.Civ.P. 23(e) before approval of a class action settlement, see Walsh v. Great Atlantic and Pacific Tea Company, Inc., 726 F.2d 956, 962 (3d Cir. 1983), the trial court has broad discretion to determine the timing and manner of notice, see, e.g., Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 77 (N.D. Tex. 1979); Fed.R.Civ.P. 23(e); C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 1797 (2d ed. 1986). The court determined that in order to approve the order providing class-based relief, a non-traditional form of notice was appropriate. Because of the nature of the class and the actual class-based relief sought and obtained, the court considered it unfeasible and unnecessary to send personal notice to City prisoners from 1980 to date, impossible and unnecessary to identify or notify future prisoners and unlikely that notices posted in the Philadelphia prisons would reach class members not reached by the prison class representatives as well as the extensive media publicity. The court considers the notice given by the extensive publicity in the news media the best notice of the class-based relief in the circumstances. See Johnson v. Robinson, 296 F. Supp. 1165 (N.D. Ill. 1967), aff'd, 394 U.S. 847, 23 L. Ed. 2d 30, 89 S. Ct. 1622 (1969); cf. Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833-34 (3d Cir. 1973).
In determining what manner of notice to provide, district courts have traditionally considered inter alia the cost of giving notice, the difficulty of identifying class members, the timing of the notice and the likelihood of notice reaching potential class members. See, e.g., Greenfield, 483 F.2d 824 (timing and effectiveness); Tate v. Werner, 68 F.R.D. 513 (E.D. Pa. 1975) (cost, size, identification, timing); see also In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.), cert. denied, 452 U.S. 905, 101 S. Ct. 3029, 69 L. Ed. 2d 405 (1981). Individual notice has not traditionally ...