Harris v. City of Phila , 47 F.3d 1333 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-15-1995
Harris v City of Phila
Precedential or Non-Precedential:
Docket 94-1286
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 94-1286
MARTIN HARRIS, JESSE KITHCART, WILLIAM DAVIS,
RANDALL CUMMINGS, EVELYN LINGHAM, ESTRUS FOWLER,
TYRONE HILL, and NATHANIEL CARTER
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; WILHELMINA 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 E. 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,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 82-cv-1847)
Argued September 14, 1994
Before: SLOVITER, Chief Judge, MANSMANN and
ALITO, Circuit Judges
(Filed February 15, l995 )
John W. Morris
Philadelphia, PA 19102
Mark A. Aronchick
Gary A. Rosen (Argued)
Randy Karafin Hubert
Hangley Connolly Epstein
Chicco Foxman & Ewing
Philadelphia, PA 19102
Attorneys for Appellants
David Richman (Argued)
Philip H. Lebowitz
Sarah E. Ricks
Pepper, Hamilton & Scheetz
Philadelphia, PA 19103
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Chief Judge.
In this appeal, the City of Philadelphia and its
responsible officials (jointly City or Philadelphia) appeal from
the order of the district court dated February 16, 1994 denying
reconsideration of a $125,000 contempt fine imposed on them on
June 16, 1993. That fine was levied because the City defendants
failed to comply with the court's earlier order requiring the
City to maintain a 90 percent occupancy rate in a residential
drug treatment facility.
The City and plaintiffs in this case, a class of
inmates in the Philadelphia prison system who filed suit in 1982
claiming unconstitutional conditions of confinement, entered into
a consent decree in 1986 (1986 Consent Decree). That decree was
partially superseded by a stipulation and agreement approved by
the district court in 1991 (1991 Consent Decree), see Harris v.
Reeves, 761 F. Supp. 382 (E.D. Pa. 1991), under which the City
was obliged to provide a 250-bed substance abuse and treatment
facility. This particular appeal arises out of that undertaking.
Today we also file two other opinions disposing of
several related appeals by the City. The most detailed
recapitulation of the underlying facts appears in Harris v. City
of Philadelphia, Nos. 93-1997, 93-2116, & 93-2117 (3d Cir.
_______, 1995) (Harris V), an appeal from the imposition of
stipulated penalties in the amount of $584,000 and the dismissal
of the City's Motion to Modify the Consent Decree as a penalty
for the City's lengthy delay in submitting a Facilities Audit and
Ten-Year Plan. We file as well an opinion in Harris v. City of
Philadelphia, No. 93-1988 (3d Cir. ________, 1995) (Harris VII)
(an appeal from the adjudication of contempt and imposition of
fines arising out of designation of bailable pretrial detainees
for release). An earlier opinion was filed from a related appeal
argued the same day. See Harris v. City of Philadelphia, 35 F.3d
840 (3d Cir. 1994) (Harris IV). This opinion will set forth only
those facts necessary to decide the issues presented in this
appeal.
I.
Facts and Procedural History
Paragraph 16 of the 1991 Consent Decree provides, in
relevant part:
Not later than April 3, 1991, defendants shall contract
for and provide a minimum of 250 beds in a program or
programs that provide alcohol and substance abuse
rehabilitation, training and other support services. .
. . The beds and services provided pursuant to this
Paragraph 16 shall be reserved for persons who would
otherwise be committed to or retained in the custody of
the Philadelphia Prisons. Defendants shall have
discretion in selecting the program provider(s), but
may not reduce or discontinue the provision of such
programs without Court approval.
App. at 115-16.
It was understood that this program for alcohol and
substance abuse rehabilitation was designed for 250 persons
already in or sentenced to the Philadelphia prison system as an
alternative to incarceration in existing facilities. To comply
with paragraph 16, the City contracted with the Greater
Philadelphia Center for Community Corrections (GPCCC) to provide
the required 250 beds in a single facility.1
However, by June 13, 1991, the GPCCC facility was still
not operational because necessary renovations had not been
completed. At a status hearing on that date, the district court
announced its intention to enter an order "that the 250 beds be
available by June 30th. And that the City be fined for any day
that the beds are available and it's not filled to 90 percent of
capacity." Supp. App. at 969. Significantly, the City
Solicitor, who was present, did not object to the proposed order
but merely requested that the proposed date be extended. The
relevant colloquy was as follows:
1 The GPCCC facility has since changed its name to the John
Czmar Treatment Center. For convenience, we will continue to
refer to it as the GPCCC facility.
MS. LILLIE: [W]e could get to capacity in about 30
days, to 90 percent.
THE COURT: Good.
MS. LILLIE: And I would respectfully request that
the point at which you are going to
impose fines would be 30 days beyond
today as opposed to June 30th.
* * *
THE COURT: -- all right. . . .
MS. LILLIE: Thank you, your Honor.
Supp. App. at 974.
As a result, on July 2, 1991 the district court
entered an order which provided, in relevant part:
The 250 treatment beds that the City agreed to provide
by April 3, 1991, pursuant to Paragraph 16 . . ., shall
be available and the facility filled to at least 90%
(225 residents) of capacity by July 15, 1991.
App. at 199 (referred to as the July 2, 1991 Order). The order
also provided that the City must pay a fine of $500.00 per day
for every day after July 15, 1991 that 250 beds were not
available or at least 90 percent occupied. App. at 199-200. The
City neither objected to nor appealed from the district court's
July 2, 1991 Order.
On October 10, 1991, following a hearing, the district
court held the City in contempt, imposing $44,000 in fines for
the City's "continued failure" to fill the GPCCC facility to 90
percent of capacity. App. at 201. The City paid the fines and
did not appeal that order. On the same day, the district court
vacated the July 2, 1991 Order to a date certain2 and suspended
further accrual of fines until November 25, 1991 to allow the
parties to develop a protocol for sending eligible inmates to the
GPCCC facility at the time of sentencing. Because the protocol
had not been completed as planned, the question of further fines
did not arise at the November 25, 1991 hearing.
In the following months, the GPCCC facility population
fluctuated but it was never again 225 after April 15, 1992.
Supp. App. at 624 (Fortieth Report of Special Master). The
special master repeatedly found that the City remained out of
compliance with the July 2, 1991 Order. On July 17, 1992, after
reviewing the special master's Thirty-Seventh Report, the
district court issued a Rule to Show Cause ordering a hearing to
determine whether the City should be fined an additional $37,000
for 74 days during which the GPCCC facility was not 90 percent
occupied. Supp. App. at 1139. After the hearing, the court
deferred until the next scheduled compliance hearing a decision
on the amount of fines owed by the City, based on the City's
representation that the GPCCC facility would begin accepting
pretrial detainees to increase the occupancy level. Supp. App.
at 1142 (Order of August 4, 1992).
The assignment of pretrial detainees to the GPCCC
facility failed to raise its population above 225, and on October
2
The vacation was until further order of the court "but no
longer than the next status hearing," App. at 202, which was held
on November 25, 1991. Such status hearings were held
periodically.
16, 1992, the district court ordered the special master and an
independent expert to evaluate the GPCCC program and recommend
changes to make the program more effective. During the
evaluation process, the court again deferred the imposition of
fines. Supp. App. at 625 (Fortieth Report of Special Master).
Meanwhile, conditions at the facility deteriorated to the point
that the Philadelphia District Attorney refused to request
assignment of inmates to it and state court judges discontinued
making such assignments. See Supp. App. at 625-27 (Fortieth
Report).
As the City acknowledged in its motion for
reconsideration, there were "repeated reports of drug use, high
walkaway rates, and acts of violence in the [GPCCC] facility."
App. at 858. In addition, residents who violated facility rules
and tested positive for drug use were discharged without
sanctions. App. at 858-59. As a result, by May 19, 1993, the
GPCCC facility's population declined to 34. Supp. App. at 626-27
(Fortieth Report).
By April 1993, the City expressed its intention to
issue a Request for Proposal (RFP) seeking a facility to replace
the GPCCC facility, and in May 1993 the City stopped making
payments to GPCCC. Supp. App. at 625-26. As of May 19, 1993,
the population of the GPCCC facility had been below 90 percent of
capacity for 399 consecutive days, creating a potential liability
by the City of $199,500 in fines. Supp. App. at 627.
As a result of the City's continued noncompliance with
the July 2, 1991 Order, and after a hearing on June 11, 1993, the
district court fined the City $125,000, allowing a credit for
time during which the special master and independent expert were
evaluating the facility. In its order, dated June 16, 1993, the
district court tolled the further accrual of fines pending
submission of the RFP by June 30, 1993.
The City filed a motion for reconsideration of the
order imposing the $125,000 fine as a sanction, which the
district court denied on February 16, 1994. In its opinion, the
district court held that the City had waived the opportunity to
argue that the July 2, 1991 Order exceeded the scope of the 1991
Consent Decree, and that even if the 1991 Consent Decree did not
support that order the City had still failed to comply with
paragraph 16 because the GPCCC facility provided inadequate
treatment services.
The City now appeals from the district court's order
denying reconsideration. We have appellate jurisdiction under 28
U.S.C. § 1291. See Inmates of Allegheny County Jail v. Wecht,
874 F.2d 147, 152 (3d Cir.), vacated on other grounds, 493 U.S.
948 (1989); Stone v. City and County of San Francisco, 968 F.2d
850, 854 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993).
II.
Discussion
The City raises four arguments on appeal. First, it
argues that the Order of July 2, 1991 imposing the 90 percent
occupancy requirement exceeded the scope of the Consent Decree.
Second, it contends that the imposition of contempt sanctions was
without adequate due process notice or hearing. Third, the City
claims that it was impossible for it to comply with the July 2,
1991 Order because it lacked power to compel state court judges
to assign inmates to the GPCCC facility. Finally, the City
argues that plaintiffs have unclean hands and should be barred
from any benefit from a contempt sanction.
A.
According to the City, the district court impermissibly
expanded the City's obligations beyond the "four corners" of the
1991 Consent Decree by requiring the City to ensure 90 percent
occupancy of GPCCC. Normally, "[f]or the purposes of
enforcement, a consent judgment is to be interpreted as a
contract, to which the governing rules of contract interpretation
apply." Harley-Davidson, Inc. v. Morris, 19 F.3d 142, 148 (3d
Cir. 1994). The obligations imposed by a consent decree must be
"discerned within its four corners, and not by reference to what
might satisfy the purposes of one of the parties to it." United
States v. Armour & Co., 402 U.S. 673, 682 (1971). As this court
has said, "[t]he agreement memorializes the bargained for
positions of the parties and should be strictly construed to
preserve those . . . positions." Halderman v. Pennhurst State
Sch. and Hosp., 901 F.2d 311, 319 (3d Cir.), cert. denied, 498
U.S. 850 (1990).
However, we have no occasion on this appeal to decide
whether the July 2, 1991 Order exceeded the scope of the 1991
Consent Decree, because the validity of that order is not open to
collateral attack in a contempt proceeding for violating it. See
Northeast Women's Center, Inc. v. McMonagle, 939 F.2d 57, 68 (3d
Cir. 1991); Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir.
1990); see also Walker v. City of Birmingham, 388 U.S. 307, 313-
21 (1967). As we have stated, "'[i]f a person to whom a judge
directs an order believes that order is incorrect the remedy is
to appeal, but, absent a stay, he must comply promptly with the
order pending appeal.'" United States v. Stine, 646 F.2d 839,
845 (3d Cir. 1981) (quoting Maness v. Meyers, 419 U.S. 449, 458
(1975)).
It is true, as the City notes, that we will review the
validity of the underlying order in a contempt proceeding when
the underlying order was not previously appealable and compliance
would result in irreparable harm. See United States v. Pearce,
792 F.2d 397, 400 (3d Cir. 1986) (citing Maness, 419 U.S. at 460
and United States v. Ryan, 402 U.S. 530, 532-33 (1971)).
However, even assuming that compliance would have resulted in
irreparable harm, that exception is inapplicable here because the
July 2, 1991 Order was previously appealable as an injunction
under 28 U.S.C. § 1292(a)(1). See Harris IV, 35 F.3d at 844
(asserting appellate jurisdiction under section 1292(a)(1) over
appeal of orders related to consent decree which imposed
affirmative duties on City); see also Sansom Committee v. Lynn,
735 F.2d 1552, 1553 (3d Cir.) (order extending a compliance
deadline in a consent decree by 30 days was "in the nature of a
preliminary injunction" and appealable under section 1292(a)(1)),
cert. denied, 469 U.S. 1017 (1984).
The City claims that the Order of July 2, 1991 was not
appealable because it provided that fines would be imposed in the
future only if certain conditions were not fulfilled. This
argument confuses appeal from final orders with appeal from
injunctions. Generally, a party may not appeal from an otherwise
final order awarding damages or fines until the damages or fines
have been calculated, unless calculation would be a purely
ministerial act. See Apex Fountain Sales, Inc. v. Kleinfeld, 27
F.3d 931, 934-35 (3d Cir. 1994). But the July 2, 1991 Order
imposed an immediate duty on the City to open the GPCCC facility
and fill it to 90 percent of capacity by July 15, 1991. The
July 2, 1991 order thus satisfied the requirements of section
1292(a)(1) because it "grant[ed] relief [that] could be enforced
pendente lite by contempt if necessary." Cohen v. Board of
Trustees of Univ. of Medicine, 867 F.2d 1455, 1465 (3d Cir. 1989)
(in banc). It was therefore appealable when entered.3
3
Because we hold the order was appealable as an
injunction, we need not decide if it was also appealable as a
final order under 28 U.S.C. § 1291, see United States v.
Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1082 (3d Cir.
1987) (order modifying consent decree by indefinitely extending
compliance deadline appealable as final order).
The City argues that it is not "incumbent upon [it] to
file a Notice of Appeal from virtually every interlocutory order
entered . . . to preserve its rights to appellate review," and
that it may "wait to see which orders, in the ebb and flow of
events, actually cause serious prejudice to the City and merit
the attention of the Court of Appeals." Reply Brief for City at
4. We simply cannot accept the City's argument that it can pick
and choose when to appeal from the entry of an injunction, an
argument that ignores the mandatory nature of the time limits for
filing a notice of appeal. If a party could obtain appellate
review of court orders simply by disobeying them at any time, the
time limits for appeal mandated by Fed. R. App. P. 4(a) "would
easily be set to naught," thus destroying "the finality of
judgments of both appellate and trial courts." Halderman v.
Pennhurst State Sch. and Hosp., 673 F.2d 628, 637 (3d Cir. 1982)
(in banc), cert. denied, 465 U.S. 1038 (1984); see also United
States v. Millstone Enterprises, Inc., 864 F.2d 21, 23-24 (3d
Cir. 1988). Having failed to challenge the July 2, 1991 Order at
the first available opportunity, the City may not now attack its
validity.
B.
The City next argues that the district court imposed
the contempt sanction without affording it adequate notice or
hearing. Our standard of review over this question of law is
plenary. United States v. Barnhart, 980 F.2d 219, 222 (3d Cir.
1992). See also Epstein Family Partnership v. Kmart Corp., 13
F.3d 762, 765-66 (3d Cir. 1994).
The fundamental requirements of due process are notice
and a meaningful opportunity to be heard, but the "concept is
flexible, calling for procedural protection as dictated by the
particular circumstance." Kahn v. United States, 753 F.2d 1208,
1218 (3d Cir. 1985). In a contempt case, the hearing must
provide an opportunity to explain why contempt sanctions should
not be imposed and create a record to facilitate appellate
review. Newton v. A.C. & S., Inc., 918 F.2d 1121, 1127 (3d Cir.
1990).
The City raised no due process arguments in the
district court, either at the June 11, 1993 hearing or in its
motion for reconsideration. This court "generally refuses to
consider issues raised for the first time on appeal." United
States v. Frost, 999 F.2d 737, 744 n.4 (3d Cir.), cert. denied,
114 S. Ct. 573 (1993); see also Harris IV, 35 F.3d at 845. The
City has put forward no reason why we should disregard our strong
policy in favor of allowing district courts to decide such issues
in the first instance when there was no obstacle to their review
in the district court, and thus the City's waiver of its due
process argument is a sufficient basis to reject its contention.
Alternatively, we hold that the City's notice argument
fails on its merits. Having been held in contempt on
October 10, 1991 for failure to comply with the 90 percent
occupancy requirement, the City cannot now complain that it was
unaware that its further failure to comply could be grounds for
additional contempt sanctions. Moreover, the district court
issued a Rule to Show Cause order on July 17, 1992, explicitly
requiring the City to show cause why it should not be held in
contempt for noncompliance with the July 2, 1991 Order. In its
order of August 4, 1992, the district court deferred a
determination of the amount of fines to be imposed, based on the
City's prediction that diversion of pretrial detainees to GPCCC
would satisfy the 90 percent requirement, but the court's
determination that the City would be fined for its noncompliance
was not vacated.
In the circumstances, we find that the district court
afforded ample notice to the City. The October 10, 1991 contempt
order and the July 17, 1992 Rule to Show Cause notified the City
that it could be held in contempt, and the August 4, 1992 order
put the question of the amount of fines on the table at
subsequent status hearings. Three weeks before the June 11, 1993
hearing, the special master's report informed the City that it
remained out of compliance with the 90 percent requirement. At
the hearing itself, the district court told the City that the
City appeared to be in continuing violation of the July 2, 1991
Order. App. at 835.
In light of the ample notice previously provided and
the continuing nature of the City's violation, due process did
not require the district court to issue a further Rule to Show
Cause or other formal written notice before holding the City in
contempt in its order of June 16, 1993. Cf. American Fletcher
Mortgage Co. v. Bass, 688 F.2d 513, 519 (7th Cir. 1982) (in civil
contempt case, oral notice in open court, without written notice
or service, satisfies due process).
The City also faults the district court for failing to
hold an evidentiary hearing before holding it in contempt. At the
hearing on June 11, 1993, the district court stated its
inclination to impose fines for noncompliance with the July 2,
1991 Order, but told the City, "I'll hear anything you want to
say." App. at 835.
Without seeking to call witnesses or requesting that
the hearing be postponed until another time, the City then
proceeded to present its defense to contempt. That defense
consisted primarily of the argument that compliance was
impossible because it could not compel the state courts to
approve release of inmates to the GPCCC facility, as well as an
attempt to shift blame to GPCCC for its failure to cooperate with
the City. The City noted that it hoped to issue an RFP for
replacement programs by the end of the month and to have the
programs in place within 30 to 60 days after that, and it argued
that "fining the taxpayers of the City of Philadelphia . . . is
not an appropriate sanction, because what happened here was in
very large part beyond the ability of the City of Philadelphia to
address." App. at 836-37.
On this record, we find that the district court
afforded the City a sufficient hearing before finding it in
contempt. The City had ample opportunity to "explain the conduct
deemed deficient," Newton, 918 F.2d at 1127, and indeed presented
a vigorous defense. An evidentiary hearing would have added
nothing of consequence to the record.4
The problems at the GPCCC facility that caused the
District Attorney to stop recommending assignment there and the
state courts to deny petitions for such assignments are well
documented. The City does not dispute that the GPCCC facility's
population fell below 90 percent of capacity during the relevant
time period, and effectively concedes that "there were no
disputed issues of fact related to the July 2, 1991 Order."
Reply Brief for City at 11. It argues only that it cannot be
held liable for "judicial resistance to paroling inmates to the
facility." Id. Because the relevant facts are undisputed, the
only question remaining is whether those facts justified a
finding of contempt. In such a case, no evidentiary hearing is
necessary. See Alexander v. Chicago Park Dist., 927 F.2d 1014,
1025 (7th Cir. 1991) (due process does not require evidentiary
4
In its brief, the City pounces on the statement by the
district court that "I don't think that this is an appropriate
time to hear the allegations or decide wherein the merit lies."
App. at 844. That statement concerned the separate issue of
responsibility between the City and its vendor, GPCCC.
On June 30, 1993, the district court proceeded to hold
a limited hearing on GPCCC's claims. Although the City faults
the district court for relying on evidence from that hearing, it
is undisputed that the state judges declined to assign inmates to
GPCCC because of concern about the program. GPCCC officials
testified that "severe underfunding" from the City prevented them
from providing adequate services. Addendum to Brief for City at
A-8. This testimony was cumulative of similar evidence appearing
in a City Department of Public Health evaluation of the GPCCC
facility attached as an exhibit to the City's motion for
reconsideration. See App. at 898.
hearing prior to imposition of contempt sanctions where relevant
facts not in dispute), cert. denied, 112 S. Ct. 1262 (1992).
The district court held that, in the alternative, the
City could be held in contempt for violating paragraph 16 of the
1991 Consent Decree, because the GPCCC facility did not provide
adequate "alcohol and substance abuse rehabilitation, training
and other support services" as required by paragraph 16. We need
not decide whether that determination should have been preceded
by a hearing notwithstanding the City's concession that the GPCCC
facility was in "undisputed decline," had "inadequate security,"
was beset with "rampant drug use," and had proved "inadequate."
See Brief for City at 28, 13, 16. Instead, we rely on the
district court's finding that the City was in violation of the
July 2, 1991 Order, a finding made after according the City its
full due process rights.
C.
Turning to the merits, we review a finding of contempt
for abuse of discretion, reversing only for an error of law or
clearly erroneous finding of fact. United States v. Sarbello,
985 F.2d 716, 727 (3d Cir. 1993).5 The City's defense is limited
5
The City contends that our standard of review over the
initial finding of contempt is plenary, citing American Greetings
Corp. v. Dan Dee Imports, Inc., 807 F.2d 1136, 1140 (3d Cir.
1986). As we explain in Harris v. City of Philadelphia, Nos. 93-
1997, 93-2116, & 93-2117 (3d Cir. ____________, 1995) (slip op.
at __), American Greetings does not support the City's argument.
Briefly, in American Greetings, we reversed a finding of contempt
that was based on a preliminary injunction that did not provide
sufficient notice of the conduct it prohibited. See 807 F.2d at
1147-48. Whether the notice provided conformed to legal
requirements is a question of law over which we retain plenary
review. American Greetings thus holds only that we exercise
to whether it was possible to comply with the order. See Wecht,
874 F.2d at 152. A finding of contempt must rest on clear and
convincing evidence. Robin Woods Inc. v. Woods, 28 F.3d 396, 399
(3d Cir. 1994). The City may escape contempt by showing that it
could not possibly comply with the court's order despite making
all reasonable efforts to do so. Citronelle-Mobile Gathering,
Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991) (citing
Ryan, 402 U.S. at 534).
The City claims that it has a complete defense to
contempt because under 61 Pa. Cons. Stat. Ann. § 785 it may not
transfer pretrial detainees without the consent of the sentencing
court. It argues that it must rely on parole petitions to
individual state courts to fill a drug treatment facility with
prison inmates, and these courts are now refusing such petitions.
Therefore, it claims that the district court impermissibly held
it in contempt as a "hostage" to the actions of third parties
beyond its control. See United States v. International Bhd. of
Teamsters, 899 F.2d 143, 147 (2d Cir. 1990) (defendant cannot be
held in contempt for actions of third parties when defendant has
no legal power to compel them to act otherwise); Newman v.
Graddick, 740 F.2d 1513, 1528 (11th Cir. 1984) (defendant cannot
be held in contempt for failing to prompt government officials to
plenary review over conclusions of law underlying a finding of
contempt, a conclusion entirely consistent with Sarbello.
Nothing in American Greetings suggests that we exercise plenary
review over the district court's findings of fact or ultimate
finding of contempt except to the extent that the finding of
contempt rests on an erroneous conclusion of law.
correct violation of court order when defendant has no power to
control actions of officials).
Of course, the City cannot directly compel state courts
to assign inmates to a treatment facility. But the City's
undertaking to establish a treatment facility pursuant to the
1991 Consent Decree imposed on it an obligation to use all
reasonable efforts to provide a treatment facility to which state
courts could be expected to assign inmates. That would
necessarily be one where residents could not routinely circumvent
security, use drugs, attack each other in the building, or walk
away at will. This obligation includes contracting with an
appropriate facility, funding it at the level necessary to
provide adequate security and treatment, and closely monitoring
performance under the contract.
The evidence from the City's own Department of Public
Health as well as Donald Stoughton, the court's independent
expert, showed that the GPCCC facility was an inappropriate
facility from the outset. According to the Department, GPCCC
initially told the City it could handle only 125 residents, but
the City insisted that it take 250, though 250 residents exceeded
the number that the Department considered appropriate for the
site. App. at 885, 895. Moreover, Stoughton noted the lack of
"perimeter security" and the "unrestricted and easy access to and
from the public streets," and concluded that the GPCCC facility
is "not designed, equipped, staffed or operated as a secure
detention facility." App. at 902-03.
There is also evidence that the City underfunded GPCCC
and failed to develop performance standards or to monitor GPCCC's
performance under the contract. The Department of Public Health
reported that GPCCC was not funded at a level "in line with other
residential programs in the area." App. at 898. Stoughton found
a "lack of measurable performance standards and program
criteria." App. at 903. He concluded by stating, "It is
essential to develop and maintain a performance monitoring
process to assure that the city is getting what it is paying
for." Id. Finally, both Stoughton and the Department of Public
Health noted the inadequate number of therapists available and
questioned whether GPCCC was capable of providing effective
substance abuse treatment as currently staffed.
Because the problems at the GPCCC facility stemmed at
least partly from the City's own acts and omissions, the City
cannot demonstrate that it exhausted all reasonable efforts to
comply with the 90 percent occupancy requirement. Instead, the
City helped create the situation leading the state court judges
to refuse to assign inmates there, and then it failed to explore
alternative programs until the middle of 1993, when it finally
issued a new RFP.
In such circumstances, the City has no viable defense
in its argument that it lacked power to compel the assignment of
inmates. In Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), the
court was confronted with an analogous situation and refused to
recognize a defense of impossibility. In that case, the district
court had directed Michigan prison officials to provide equal
educational opportunities to male and female prison inmates,
after finding the officials guilty of equal protection
violations. On appeal from the district court's contempt order
and sanctions imposed because defendants had failed to contract
with local colleges to provide degree programs in women's
prisons, defendants contended that they were "unable to comply
with the court's orders . . . because the orders required the
cooperation of colleges and educators outside their control."
Id. at 708. Defendants argued that because the legislature
failed to appropriate sufficient funds, colleges did not find it
"financially attractive" to offer degree programs in women's
prisons. Id. at 711.
The appeals court upheld the finding of contempt
because the record was "devoid of any evidence" that defendants
exhausted all reasonable efforts to design degree programs for
female inmates that would be financially attractive. Id.
Defendants neither provided support nor sought funding for
education of female inmates, though they sought funding for male
inmates. Id.
Like the Sixth Circuit in Glover, we find the City's
argument disingenuous. Because the City directly contributed to
the state courts' loss of confidence in GPCCC, it cannot now
complain that its hands were tied by the state courts' refusal to
cooperate. We cannot therefore say that the district court
abused its discretion in holding the City in contempt.
D.
Lastly, the City claims that plaintiffs should not
benefit from the contempt order because of their unclean hands.
Specifically, the City argues that by walking away from the GPCCC
facility, certain inmates have demonstrated sufficient "fraud,
unconscionability, or bad faith" to bar enforcement of the July
2, 1991 Order. See S & R Corp. v. Jiffy Lube Int'l, Inc., 968
F.2d 371, 377 n.7 (3d Cir. 1992). Though the district court did
not address the unclean hands issue, we will resolve it on appeal
in the interests of judicial economy and because the unclean
hands doctrine ensures that courts protect "'their own integrity'
and . . . avoid[] becoming 'the abettor of iniquity.'" Northeast
Women's Center v. McMonagle, 868 F.2d 1342, 1354 (3d Cir.)
(quoting Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 598 (3d
Cir.), cert. denied, 407 U.S. 934 (1972)), cert. denied, 493 U.S.
901 (1989).
We are most reluctant to allow the misconduct of one or
more class members to adversely affect the position of a class of
plaintiffs.6 The members of the plaintiff class who walked away
from the GPCCC facility will not necessarily benefit from their
allegedly inequitable conduct by our affirmance of the order at
issue. Therefore, even if the isolated acts of certain members
6
This case is unlike Gaudiosi v. Mellon, 269 F.2d 873 (3d
Cir.), cert. denied, 361 U.S. 902 (1959), where we affirmed the
district court's dismissal of a suit arising out of a proxy
contest because the plaintiff who had deliberately attempted to
intimidate stockholders to vote for his election as director
would have become a director despite his unclean hands if the
claims of his co-plaintiffs, who were not implicated in his
conduct, were not also dismissed. Id. at 882.
of the plaintiff class reflect fraud, unconscionability, or bad
faith, those acts do not justify denying relief to the plaintiff
class as a whole, which has not been shown to have acted in bad
faith.
III.
Conclusion
For the foregoing reasons, we will affirm the district
court's order of February 16, 1994 denying the City's motion to
reconsider the order of June 16, 1993 imposing fines of $125,000
on the City as a sanction for contempt for its violation of the
district court's order of July 2, 1991, which the City had not
previously appealed.