                                                                                                                           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Precedential or Non-Precedential: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.
