Harris v. City of Phila. , 35 F.3d 840 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-27-1994
Harris, et al. v. City of Phila., et al.
Precedential or Non-Precedential:
Docket 93-2034
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 93-2034
MARTIN HARRIS, JESSE KITHCART, WILLIAM DAVIS,
RANDALL CUMMINGS, EVELYN LINGHAM, ESTRUS FOWLER,
TYRONE HILL, NATHANIEL CARTER and LONNIE BANKS
v.
THE CITY OF PHILADELPHIA; JOAN REEVES, in her official
capacity as Commissioner of the Department of Human
Services of the City of Philadelphia;
ALBERT F. CAMPBELL, ROSITA SAEZ-ACHILLA,
GENECE E. BRINKLEY, ESQ., REV. PAUL M. WASHINGTON,
M. MARK MENDEL, HON. STANLEY KUBACKI, MAMIE FAINES,
each in his or her official capacity as a member of the
Board of Trustees of the Philadelphia Prison System;
J. PATRICK GALLAGHER, in his official capacity as
Superintendent of the Philadelphia Prison System;
HARRY E. MOORE, in his official capacity as
Warden of Holmesburg Prison;
WILHEMINA SPEACH, in her official capacity as
Warden of the Detention Center;
PRESS GROOMS, in his official capacity as
Warden of the House of Corrections;
RAYMOND SHIPMAN, in his official capacity as
Managing Director of the City of Philadelphia; and
HON. EDWARD G. RENDELL, in his official capacity
as Mayor of the City of Philadelphia,
Theodore Levine, in his official capacity as Commissioner of the
Department of Human Services of the City of Philadelphia;
Albert F. Campbell, Rosita Saez-Achilla, Genece E. Brinkley,
Esq., Rev. Paul M. Washington, M. Mark Mendel, Hon. Stanley
Kubacki, Mamie Faines, each in his or her official capacity as
Trustees of the Philadelphia Prison System;
J. Patrick Gallagher, in his official capacity as Superintendent
of the Philadelphia Prison System; Harry E. Moore, in his
official capacity as Warden of Holmesburg Prison; Wilhemina
Speach, in her official capacity as Warden of the Detention
Center; Press Grooms, in his official capacity as Warden of the
House of Corrections; Raymond Shipmen, in his official capacity
as Managing Director of the City of Philadelphia; and Hon. Edward
G. Rendell, in his official capacity as Mayor of the City of
Philadelphia; and the City of Philadelphia,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 82-cv-01847)
Argued: September 14, 1994
Before: SLOVITER, Chief Judge, MANSMANN and
ALITO, Circuit Judges
(Opinion Filed September 29, l994)
John W. Morris
The Graham Building
Philadelphia, PA 19102
Mark A. Aronchick
Gary A. Rosen (Argued)
Randy Karafin Hubert
Hangley Connolly Epstein
Chicco Foxman & Ewing
Philadelphia, PA 19102
James B. Jordan
Office of City Solicitor
Philadelphia, PA 19102
Attorneys for Appellants
David Richman
Philip H. Lebowitz (Argued)
Michael S. Hino
Pepper, Hamilton & Scheetz
Philadelphia, PA 19103
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Chief Judge.
Before us is the City of Philadelphia's appeal from the
orders of the district court dated September 24, 1993 and
September 30, 1993 entering an injunction governing the occupancy
and conditions of confinement of the City's newly constructed
prison facility denominated the Alternative and Special Detention
Central Unit ("ASDCU"). This is one of a series of appeals taken
by the City from related orders arising out of a consent decree
and various revisions entered into between the City and the
plaintiffs, a class of prisoners incarcerated in the Philadelphia
prison system, to ameliorate the severe overcrowding and harsh
conditions in the Philadelphia prisons.1 Although this appeal
was argued at the same time as the other appeals, and the other
appeals remain pending for disposition by this court, the court
disposes of this appeal initially for reasons that will become
clear hereafter.
1
. The other appeals are from an order adjudicating the City in
contempt and imposing fines for noncompliance with an order
requiring occupancy of a substance abuse and treatment facility
(No. 94-2186); a series of orders adjudicating contempt and
imposing stipulated penalties for failure to timely submit a
Facilities Audit and Ten-Year Plan as required by the consent
decree (Nos. 93-1997, 93-2116, 93-2117); and an adjudication of
contempt and imposition of fines for modification of procedures
by the City for designation of bailable prisoners for release
(No. 93-1988).
I.
BACKGROUND OF THE CASE AND THE CONSENT DECREES
The complaint in this case was initially filed in 1982
by a group of inmates suffering from alleged overcrowding at
Holmesburg Prison. Defendants in the case include the City of
Philadelphia and various city officials charged with the
responsibility of administering the Philadelphia prison system
(hereinafter collectively referred to as "the City"). In 1986,
the plaintiff class was expanded to include all past, present and
future inmates in the Philadelphia prison system, and the
allegations of overcrowding were expanded to apply to the
Philadelphia prison system as a whole. There is also pending a
somewhat parallel action in the Philadelphia Court of Common
Pleas which found, some twenty years ago, that conditions in the
Philadelphia prison system violated the prohibition against cruel
and unusual punishment in the Eighth Amendment to the United
States Constitution and which retains control over aspects of the
prison system pursuant to a consent decree entered by the City
and representatives of that plaintiff class.2
On November 14, 1986, the plaintiff class in the
federal case and the City entered into a Settlement Agreement.
On December 30, 1986, the district court approved the Settlement
Agreement and entered a Consent Order (the "1986 Consent Decree")
2
. We note, however, that the Supreme Court of Pennsylvania took
cognizance of findings of "vast improvements in prison
conditions" as a result of the remedial decrees entered into in
that case. See Jackson v. Hendrick, 503 A.2d 400, 407 (Pa.
1986). We offer no opinion on that issue.
consistent with its terms. Among other things, the 1986 Consent
Decree provided for the construction of a downtown 440-bed
detention facility by December 31, 1990 and established a maximum
allowable population ("MAP") of 3,750 inmates for the then-
existing facilities of the Philadelphia prison system. See App.
at 91-92.
Five years after the entry of the 1986 Consent Decree,
the City had not complied with many of its provisions, including
the provision requiring construction of the 440-bed facility and
the provision establishing the MAP. In 1991, the parties entered
into a new Stipulation and Agreement approved by the district
court which entered another Consent Order consistent with its
terms (the "1991 Consent Decree") and which contained a series of
remedial decrees and stipulations aimed at alleviating the
overcrowding and conditions in the prison system.
The 1991 Consent Decree relieved the City of its
obligation under the 1986 Consent Decree to construct the 440-bed
detention facility. Instead, the 1991 Consent Decree imposed,
among other things, the following requirements:
11. Defendants shall conduct expeditiously the orderly
planning process set forth in the document
entitled "Prison Planning Process" attached as an
Appendix hereto and incorporated herein by
reference. Defendants shall thereafter construct
or arrange for such new facilities and close or
renovate existing facilities in accordance with
the plans produced pursuant to the Prison Planning
Process and approved by the Court.
. . . .
14. Defendants shall construct a new prison facility
or facilities capable of housing in the aggregate
at least 1,000 inmates by May 25, 1994. Such
construction shall be planned pursuant to the
Prison Planning Process.
App. at 114-15. (emphasis added).
The "Prison Planning Process" set forth in the Appendix to the
1991 Consent Decree includes the following provision:
C. The defendants shall develop physical and
operational standards for the operation of their
facilities. Defendants shall then apply these
standards when making the evaluations and
construction plans called for in subparagraphs 1-4
below. Such standards shall comply with
constitutional standards and requirements for the
incarceration of sentenced prisoners and pretrial
detainees, where applicable, and shall comply with
correctional industry standards of the American
Correctional Association (ACA), with reference to
those of the American Jail Association (AJA), the
Federal Department of Justice (DOJ), the American
Public Health Association (APHA), the American
Medical Association (AMA), and the American Bar
Association (ABA).
App. at 131 (emphasis added).
II.
FACTS LEADING TO THIS APPEAL
The City decided in late 1992 to double the capacity of
the new facility it was required to construct by the 1991 Consent
Decree from 1000 to 2000 beds. App. at 781. In order to build
the second 1000 beds, however, the City needed to demolish Laurel
Hall, which housed 175 inmates. App. at 781. Because Laurel
Hall formed an integral part of the MAP limits set forth in the
Consent Decree, the City sought court approval of a plan to
relocate Laurel Hall inmates. Supp. App. at 1175-77, App. at
464-65. The district court required that the City develop a plan
for the inmates before razing Laurel Hall. App. at 456, 749-50,
821.
On March 17, 1993 the City submitted a program
outline and plan drawings for the construction of the ASDCU, a
pre-fabricated modular facility, designed as a minimum security
facility to house 192 inmates. On April 30, 1993 the City
presented these plans to the court, apparently in chambers,
through its architect and a City official and there was a
discussion of space requirements, food service, and the target
date for demolition of Laurel Hall. App. at 733-64.
Although the court-appointed consultant commented that
the plans were "consistent with the physical and operational
standards," App. at 761, after the April 30, 1993 presentation
the plaintiffs, pursuant to the court's invitation to communicate
their concerns, objected, inter alia, to the number of inmates
the City proposed to house at the ASDCU. The crux of the dispute
concerns whether the three wings of the proposed facility were
multiple occupancy cell/rooms within ACA standards, which
plaintiffs contended could house no more than 50 inmates each, or
64-bed dormitories, which the City's consultants believed
appropriate.
There followed a series of meetings by the parties with
the special master, culminating in what the City calls a
"conference" and what the plaintiffs call a "hearing" on
September 22, l993. This occurred two days before the City had
scheduled to move the Laurel Hall prison population to the ASDCU.
The parties discussed with the district court a variety of issues
related to occupancy in the new facility, including smoking by
inmates and activities programs to mitigate the density of the
ASDCU population. App. at 1114, 1134-38, 1142-49, 1156-83.
During and at the conclusion of the discussion, the district
court expressly requested that the City submit a motion for a
variance from the ACA standards, but despite counsel's agreement
to do so no such motion was forthcoming.
The district court indicated that it would limit the
number of inmates at the ASDCU to 168, which could be increased
to 192 upon the City's application to the court if the City
could demonstrate that at least 163 of them were participating in
jobs or work. App. at 1170. The court referred to the "draft of
an order" which would be forwarded for comment, App. at 1187, but
it is unclear whether a draft order was prepared or comments were
received from the parties.
On September 24, 1993, however, the court issued a
sua sponte order (hereinafter "the September 24 Order") which
recited the facts deemed relevant to the ASDCU dispute, including
reference to the hearing of September 22, 1993, the report of the
court's "independent consultant," and the court's own tour of the
ASDCU facility, and which "allowed" the occupancy of ASDCU by
more than 150 inmates on specified terms and conditions. These
included (1) the classification of inmates assigned to the ASDCU,
(2) provision for food services satisfactory to the City's Health
Department, with the court "expect[ing] copies of inspection
reports by the Health Department," (3) provision of adequate
ventilation for smoking rooms and "monthly tests of air quality
to assure compliance," (4) the provision of work tables and
seating in at least three work stations, (5) provision of
volunteer outdoor recreation of no less than two hours after the
evening meal, and (6) certain staffing of ASDCU. The district
court then set a maximum allowable population for ASDCU at 168 as
long as 80% of the inmates had work or school activities six
hours per day, five days per week within ten days of arrival.
The September 24 Order also included provisions by
which the City could request a population increase to 192 upon
the City's representation that 85% of the inmates will be
assigned program activities (i.e. work or schooling), and (2) the
provision of voluntary activities other than religious
programming, "such as AA/NA, Smoke-enders, parenting, literacy
training (Hooked on Phonics or the equivalent), [and] arts and
crafts," for two hours per day. The court also ordered that the
City submit a compliance report and a plan within 60 days, and
set a hearing within 90 days. Finally, the court granted the
City permission to proceed with the demolition of Laurel Hall
upon transfer of the prisoners in accordance with the terms of
the Order.
On September 30, without any prompting from the
parties, the district court issued a second sua sponte order
requiring that daily reports be made available to the court upon
request regarding issues covered by the September 24 order.
These included, inter alia, with respect to the posts and
staffing patterns, "a daily report of the number of posts each
shift, the number of assigned staff reporting and the number of
staff either reassigned or working overtime to replace non-
reporting staff," "[d]aily reports of the program activities
provided, the number of inmates assigned to program activities,
the number who actually report to their assignments as well as
their names, and the number of hours spent in each assignment,"
and a "daily log of the times that the recreation yards are
opened and closed." The September 30 Order also established a
schedule of fines for non-compliance with the terms of the
September 24 Order. The district court also required a
compliance reporting plan in 60 days and scheduled a hearing for
90 days. Joint App. at 1334.
The City now appeals from the district court's orders
of September 24 and September 30, 1993. It grounds appellate
jurisdiction on 28 U.S.C. § 1292(a), and the plaintiffs agree
that the orders constitute injunctive relief appealable under
that section.
III.
DISCUSSION
On appeal, the City contends as follows: First, it
argues that the district court erred in entering a permanent
injunction governing the operations of the ASDCU sua sponte and
without observing the fundamental procedural and evidentiary
safeguards of the adversary process. In support of that
contention the City argues that the district court erred in
disregarding the requirement to hold a hearing prior to entering
a permanent injunction; in determining disputed issues of fact on
the basis of non-record evidence; and that the September 24th and
September 30th orders do not reflect "agreements reached,"
despite the characterization of the district court in the
September 24th order, and that therefore their entry without a
hearing cannot be justified on that basis. It is the City's
position that there was no voluntary meeting of the minds and
that it was subject to a "Hobson's Choice" with an "undercurrent
of coercion" because the district court had indicated it would
not approve moving the Laurel Hall population to ASDCU without
the conditions imposed and the City was faced with the need to
raze Laurel Hall to meet its construction schedule.
The City contends next that the district court's
interpretations of the consent decree and of the ACA standards
were erroneous. It contends, notwithstanding the language of the
consent decree emphasized above, that the ASDCU was not required
to meet the ACA standard under the consent decree and that in any
event the ASDCU does not violate the ACA standard. This argument
depends upon resolution of the factual issue as to whether the
wings are "multiple occupancy cells/rooms" or "multiple occupancy
dormitories," a factual dispute as to which the City contends it
did not have the opportunity to present evidence.
Finally, the City contends that the "conditions of
confinement" imposed by the district court constitute
impermissible judicial micromanagement of the operations of a
county prison facility. In support of this argument the City
refers to the Supreme Court's emphasis on according great
deference to the policies and opinions of prison administrators,
and the strong separation of powers concerns heightened in this
case by the important interests of federalism. These are serious
contentions, and although many of them are forcefully answered in
the plaintiffs' brief it would have been helpful to this court if
we had the benefit of the district court's consideration and its
response. Surprisingly, however, the City candidly concedes that
"[t]he issues presented on appeal were not raised or adjudicated
on the record in the district court." Appellant's brief at 1
n.1.
This court has consistently held that it will not
consider issues that are raised for the first time on appeal.
See, e.g., Pritzker v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 7 F.3d 1110, 1115 (3d Cir. 1993); In re American
Biomaterials Corp., 954 F.2d 919, 927-28 (3d. Cir. 1992); Frank
v. Colt Industries, Inc., 910 F.2d 90, 100 (3d Cir. 1990); Flick
v. Borg-Warner Corp., 892 F.2d 285, 287-88 (3d Cir. 1989); Newark
Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.
1976). This general rule "applies with added force where the
timely raising of the issue would have permitted the parties to
develop a factual record." American Biomaterials, 954 F.2d at
927-28.
The Supreme Court has frequently approved the
application of such a rule, explaining that the rule against
considering issues not raised before the district court is
considered "essential in order that parties may have the
opportunity to offer all the evidence they believe relevant to
the issues . . . [and] in order that litigants may not be
surprised on appeal by final decision there of issues upon which
they have had no opportunity to introduce evidence." Hormel v.
Helvering, 312 U.S. 552, 556 (1941); see also Singleton v. Wulff,
428 U.S. 106, 120 (1976) (noting that, when an argument was
raised for the first time on appeal, "[w]e have no idea what
evidence, if any, petitioner would, or could, offer in defense
[of the argument].").
The City's failure to raise these issues before the
district court is surprising. Indeed, the district court gave
the City the opportunity to present again at least some of these
issues by construing a request filed by the City for
authorization to increase the population of ASDCU to 192 and to
modify the reporting requirements as a motion under Rule 60(b) to
relieve the defendants of certain provisions of the September 24,
1993 Order. See Order of June 27, 1994 at 8. The district court
cited authority it construed as depriving it of jurisdiction to
rule on that motion. See Venen v. Sweet, 758 F.2d 117 (3d Cir.
1985). Because the City apparently wanted to insure that this
court address not only the occupancy limit but also the related
conditions imposed by the district court, in lieu of requesting
this court to remand, the City has represented that it will
withdraw its request pending before the district court.
The plaintiffs argue with some plausibility that at
least some of the issues presented here by the City have been
waived. See, e.g., Appellees' Brief at 40 ("The City failed, at
every stage prior to this appeal, to request a formal evidentiary
hearing regarding the occupation of ASDCU."). Had the City filed
a Rule 60(b) motion, the district court would have had the
opportunity to consider the substantial number of factual
questions that are intertwined with the City's arguments,
including, but not limited to, whether the ASDCU facility
complied with ACA standards and whether the ACA standards or any
other relevant standards incorporated the subjects addressed in
the district court's orders; whether the City had a fair
opportunity to present its experts on the issue of the
characterization of the multi-unit rooms, and whether, on
reflection, the decrees inappropriately involved the court in the
micromanagement of a state institution. See Halderman v.
Pennhurst State School & Hosp., 673 F.2d 628, 637-39 (3d Cir.
1982) (in banc) (declining to address a defense to a civil
contempt citation that had not first been presented to the
district court through a motion under Rule 60(b)), cert. denied,
465 U.S. 1038 (1984).
Although we would have the undisputed discretion to
view the City's failure to raise these issues in the district
court as a waiver, a practice this court generally follows, in
light of the strong public interest in the subject matter of
these decrees, we will not do so in this instance. See Selected
Risks Insurance Co. v. Bruno, 718 F.2d 67, 69-70 (3d Cir. 1983).
Nonetheless, we decline to address these significant issues until
the district court has an opportunity to consider "the competing
equities, . . . the strengths and weaknesses of the parties'
positions, and . . . the imposition of conditions for relief from
a judgment." Pennhurst, 673 F.2d at 637.
A remand will give the district court the opportunity
to address the City's vigorous arguments focused on, inter alia,
the detail of the monitoring of the ASDCU facility. Of course,
in the present circumstances, we express no opinion regarding the
propriety of the district court's Orders of September 24, 1993
and September 30, 1993, and nothing that we have written should
be construed as an opinion on the merits, which we do not reach.
IV.
For the foregoing reasons, we will not affirm, reverse,
or vacate the district court's orders of September 24, 1993 and
September 30, 1993, but instead will remand this matter to the
district court so that the City can file an appropriate motion.
The mandate will issue forthwith. Costs on appeal to be assessed
against the City.