                    United States Court of Appeals,

                               Fifth Circuit.

                                No. 93-4967.

            Bobby HARRIS, et al., Plaintiffs-Appellees,

                                         v.

ANGELINA COUNTY, TEXAS and Angelina County Sheriff Mike Lawrence,
Defendants-Third Party Plaintiffs-Appellants, Cross-Appellees,

  The TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Third Party
Defendants-Appellees, Cross-Appellants.

                              Sept. 13, 1994.

Appeals from the United States District Court for the Eastern
District of Texas.

Before REAVLEY, GARWOOD and EMILIO M. GARZA, Circuit Judges.

     REAVLEY, Circuit Judge:

     In this prisoner class action suit, the district court found

unconstitutional       conditions   at       the   Angelina    County   jail,     and

granted injunctive relief in the form of a population cap on the

number of inmates.         We find no error in the district court's

findings   of   fact    and   conclusions          of   law   in   support   of   the

injunctive relief granted.          We also conclude that the district

court did not err in dismissing a third-party claim against state

prison officials.

                                 BACKGROUND

     Plaintiffs Bobby Harris and Terry Weekly, former prisoners at

the Angelina County Jail, brought this 42 U.S.C. § 1983 suit

seeking relief from allegedly unconstitutional conditions at the

jail.   The suit was brought against Angelina County and the county

sheriff in his official capacity.             These defendants (collectively

                                         1
the   County)      brought    a    third-party     action    against    the    Texas

Department of Criminal Justice (TDCJ), individual members of the

Department, and individual members of the Board overseeing the

Department     (collectively        the    State   defendants).        All    of   the

individual third-party defendants were sued in their official

capacities.        After a bench trial the district court dismissed the

State     defendants    and       issued   an   injunction    capping    the       jail

population at 111.

                                     DISCUSSION

A. The Injunction

          We review the district court's findings of fact for clear

error and its legal conclusions de novo.1                Fiberlok, Inc. v. LMS

Enterprises, Inc., 976 F.2d 958, 962 (5th Cir.1992).                         Deciding

whether     jail     conditions      are   unconstitutional       involves     mixed

questions of law and fact.            The district court employed a correct

legal analysis of the issues before it.

          The jail houses pretrial detainees and convicted felons.

Pretrial detainees are protected by the due process clause of the

Fourteenth Amendment. See Valencia v. Wiggins, 981 F.2d 1440, 1445

(5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2998, 125

L.Ed.2d      691    (1993).         Conditions      of   detention      constitute

      1
      The injunction was interlocutory in the sense that it was
entered not as part of a final judgment and "pending further
order of the Court." However, it represented the court's final
disposition of the claims concerning jail conditions as they
existed up to the time of trial, and was not a preliminary
injunction under FED.R.CIV.P. 65(a) contemplating a later
disposition after trial. Accordingly, the district court and
appellate standards appropriate to the granting or denying of a
preliminary injunction are inapplicable here.

                                           2
deprivations of liberty without due process if they amount to

punishment of the detainee.            Id.   Of course, confinement of a

pretrial    detainee   necessarily      involves   some   loss    of   liberty.

Deciding whether a condition of confinement amounts to "punishment"

under a due process analysis turns on whether "the disability is

imposed for the purpose of punishment or whether it is but an

incident of some other legitimate governmental purpose."                 Bell v.

Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447

(1979).     Without delving further into the subtleties of this

doctrine, we think it sufficient to note that jail conditions which

amount to "cruel and unusual punishment" under the Eighth Amendment

surely amount to "punishment" under the Fourteenth Amendment.

Evidence presented to the district court indicated that pretrial

detainees were treated the same as convicted felons.              For example,

all inmates are segregated on the basis of prior criminal history;

pretrial detainees with criminal records are placed in the general

population with other previously convicted felons.

        As to convicted felons, a violation of the Eighth Amendment's

prohibition against cruel and unusual punishment occurs if two

requirements—one objective and one subjective—are met.                 Farmer v.

Brennan, --- U.S. ----, ----, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811

(1994).    Under the objective requirement, the deprivation must be

so serious as to "deprive prisoners of the minimal civilized

measure of life's necessities," as when it denies the prisoner some

basic human need.      Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct.

2321,    2327,   115   L.Ed.2d   271    (1991).     Under   the    subjective


                                        3
requirement, the court looks to the state of mind of the defendant;

deliberate indifference on the part of prison officials will

suffice to meet this requirement.            Id.

       The district court found that constitutional violations had

occurred due to overcrowding, and that housing more that 111

inmates in the current facility violates the Eighth Amendment

rights of the convicted inmates and the Fourteenth Amendment rights

of    the   pretrial    detainees.     It    considered    the   objective     and

subjective elements of Eighth Amendment analysis.                The County and

the    State   defendants    argue    that   the   court    erred     in   finding

unconstitutional conditions.           We cannot say that the district

court, having employed the correct rules of law to this case,

clearly erred in finding unconstitutional conditions as a result of

overcrowding.     Viewing the record as a whole, we are not "left with

a definite and firm conviction that a mistake has been committed."

Graham v. Milky Way Barge, Inc., 824 F.2d 376, 388 (5th Cir.1987).

         As to the objective element of Eighth Amendment analysis,

evidence supports the district court's conclusion that, given the

jail's      current    management,   staffing,     and     physical    plant,    a

population exceeding 111 leads to a denial of the inmates' basic

human needs.          The design capacity of the current jail is 111,

meaning that the current facility has 111 bunks.                    The district

court correctly noted that design capacity is not always equivalent

to constitutional capacity, but that design capacity is relevant to

the constitutional inquiry.          Compare Alberti v. Sheriff of Harris

County, 937 F.2d 984, 1000-01 (5th Cir.1991) (holding district


                                       4
court's finding of unconstitutional jail overcrowding not clearly

erroneous, where district court considered design capacity in

conjunction with the "totality of the conditions."), cert. denied,

--- U.S. ----, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992).                  Prior to

the   district   court's    ruling,       The    Texas     Commission    on   Jail

Standards, which periodically reviews conditions at the jails

around the     state,   issued   a   remedial      order    limiting    the   jail

population to 111.      Again, we agree with the district court that

this order, while not dispositive, is instructive.

      Additional evidence supports the district court's finding that

overcrowding had resulted in a denial of basic human needs of the

jail population.    The court noted that in the recent months prior

to its ruling the jail had an average daily count of 135 inmates.

The population has gone as high at 159 inmates.                     Plaintiffs'

expert, who was well qualified, testified that with proper staffing

the facility could properly accommodate 111 inmates, and that to

ensure proper classification, the population should probably not

exceed   105   inmates.     Evidence       was    presented     that    staffing,

supervision, management and classification of prisoners are all

important to maintaining basic human needs in the jail, and that

all are affected adversely by overcrowding.                  The design of the

facility is such that when the jail population exceeds 111 some

prisoners must sleep on the floors in "day rooms" which are not

designed as sleeping quarters.        Compare Alberti, 937 F.2d at 1000-

01 (concluding that district court did not clearly err in finding

unconstitutional jail conditions where court considered, inter


                                      5
alia, design capacity, the physical design of the cellblocks, and

"the fact that thousands of inmates were sleeping on the floors").

Even       the   State   defendants'     expert        conceded:       "[I]f    you   go

significantly above that [111] number without any improvement in

the operation of the jail, you are going to hit that constitutional

wall fairly quickly, in my opinion."2

       Jail officials and former and present prisoners testified to

numerous specific incidents that the district court could have

found were the result of, or at least were exacerbated by, the

overcrowding at the jail.              These incidents included abuse and

intimidation        by   stronger   or   more     hardened     inmates     of   weaker

inmates, inadequate care for inmates with special needs, improper

sexual relations between inmates or between inmates and guards, the

operation of a homemade still, illegal drug use, and fighting among

inmates.           Evidence     indicated       that     the   reported    incidents

represented only the "tip of the iceberg" of the total incidents.

The    evidence       also    showed     that,     unlike      state    penitentiary

facilities, the jail houses a highly heterogenous mix of inmates:

men and women, inmates still under the influence of drugs or

       2
      The same expert earlier responded to an inquiry from the
court as follows:

            THE COURT: Let's assume that Angelina County is not
       willing to add five security additional employees, intake
       person, a classification person, doctor full or part-time or
       contract or however, Angelina County is not willing to put
       twelve new bunks in each dorm and double cell for the four
       and the six, and is—prefers to leave staffing levels and the
       facilities as they are. Now, assuming that is true, I
       gather then you are hard-pressed to disagree with the 111?

                 THE WITNESS:    You gather correctly.

                                            6
alcohol after arrest, inmates with prior convictions for serious

felonies and those with no criminal records and under arrest for

minor offenses, etc.    In such a jail the proper segregation and

classification of inmates is of paramount importance. Evidence was

presented that the physical layout and size of the facility was

such that overcrowding in excess of design capacity would adversely

affect the   ability   of   jail   officials   to   safely   and   properly

segregate inmates.     Evidence that overcrowding had an impact on

security, recreation and the delivery of medical care was presented

as well.

      We also conclude that the district court did not clearly err

in finding that the subjective element of Eighth Amendment analysis

was established   against    the   County.     Reports   from   the   Texas

Commission on Jail Standards to the County, various incident

reports, evidence brought to the attention of the County through

this ongoing litigation itself, and testimony from the County's

sheriff and jail administrators all support the conclusion that the

County was well aware of the overcrowding at the jail and the

resulting conditions.       We also agree with the district court's

analysis of this issue.     It found that:

     the County Defendants make deliberate decisions whether or not
     to pick up prisoners, to release them or to detain them.
     County Defendants also make decisions concerning staffing
     levels, classification of inmates and configuration of the
     facility. The exercise of this decision making authority,
     which   has    resulted   in    inmates   being   housed    in
     unconstitutionally overcrowded jail facilities, meets the
     criteria of deliberate indifference required by the Eighth
     Amendment.

     The County argues that the subjective element was not met


                                    7
because, in response to the overcrowding, "the county officials did

everything in their power—from building a dormitory to transferring

inmates to providing alternatives to incarceration—in order to

relieve overcrowding."      It argues that the overcrowding is beyond

its control because the state has refused to take paper-ready

felons who belong in state prison facilities,3 and that the County

has "continuously spent over budget for the expenses of the jail

and anticipated going over budget in 1992, even with declining

revenue from sales taxes, fines and fees due to a slow economy."

Despite this evidence, we cannot say that the district court

clearly erred in finding that the subjective element was met.

Evidence was presented that the County could, and in fact had,

simply   delayed   acting    on   arrest   warrants   in   response   to

overcrowding concerns, and had addressed overcrowding through other

means as well, including the use of probation, other facilities and

electronic monitoring. While such approaches may not be ideal from

a public policy standpoint, they demonstrate that alternatives were

available to address the unconstitutional conditions at the jail.

     As to a purported lack of funding, the Supreme Court has left

open the question of whether a cost defense is available under

Eighth Amendment analysis. Wilson v. Seiter, 501 U.S. 294, 301-03,


     3
      "Paper-ready" or "state-ready" felons consist of convicted
felons sentenced to the state prison system and awaiting transfer
from county facilities. Due to its own overcrowding problems,
the state has engaged in a policy of deliberately leaving
paper-ready felons in county facilities, and accepting transfers
of such felons from county jails under an allocation formula.
See TEX.GOV.CODE § 499.071 (West Supp.1994); Alberti, 937 F.2d at
987-89.

                                    8
111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991).               Prior to Seiter,

this court rejected the defense.          See Alberti, 937 F.2d at 999 and

cases cited therein.      Even if a cost defense were recognized, we

would find    it    inapplicable   here,     since   the   evidence    did   not

establish    that    additional    funding    was    unavailable      from   the

taxpayers to address the overcrowding.               On the contrary, the

sheriff testified:

     The budget hasn't been a problem: I overspend my budget every
     year, but the paper hasn't raised cane about it, the
     Commissioners haven't raised cane about it, the citizens
     haven't. They know the problem is something that we can't
     handle as far as—or can't control as far as the amount of
     people coming in. So.... they've always paid whatever we've
     run over, and—and we've pretty well accepted that, that we
     will.

         While a population cap may be an appropriate remedy to

relieve overcrowding,4 the district court correctly recognized that

a constitutional review of jail conditions should not consider

inmate population in a vacuum.            It stated in its order that it

"will entertain any motion by the County Defendants to raise the

population cap upon notification that the County has made changes

in the configuration of the physical plant, increased staffing and

upgraded its classification system such that an inmate population

in excess of 111 can be housed in the jail without violating the

Constitutional rights of the Plaintiff Class."             We agree with this

approach and urge the district court to freely and fully revisit

     4
      Alberti v. Sheriff of Harris County, 978 F.2d 893, 896 (5th
Cir.1992) ("A numerical cap on the number of prisoners is not an
overly intrusive remedy. It gives the county maximum flexibility
in determining on its own how to meet the population goals."),
cert. denied, --- U.S. ----, 113 S.Ct. 2996, 125 L.Ed.2d 690
(1993).

                                      9
the need for the injunction should the County bring any relevant

change in circumstances to its attention.5

B. The Third-Party Claims Against the State Defendants

     The    County      complains    that    the   district    court     erred    in

dismissing its third-party action against the State defendants. In

its third-party complaint the County sought monetary and injunctive

relief against the State defendants in the event the County was

found    liable    to     plaintiffs,       as   well   as    attorney's       fees.

Overcrowding      at    the   jail   results     from   the   presence    of   both

traditional county inmates and paper-ready felons awaiting transfer

to state facilities.

     The district court dismissed the State defendants with the

following reasoning:

     The County Defendants, as Third-Party Plaintiffs did not
     establish that the State Defendants had a legal duty to pick
     up paper-ready felons within a certain length of time.
     Further, the State Defendants have reimbursed Angelina County
     for the expenses of housing paper ready felons in accordance
     with the statutory formula set out in [TEX.GOV'T CODE ANN. §§
     499.123-499.124 (Vernon Supp.1994) ].

While we cannot agree with this analysis, we nevertheless hold that

the State defendants were properly dismissed.

         The County alleged in its third-party complaint that the

state's refusal to accept paper-ready felons was the cause of

plaintiffs' damages, and sought to have the state enjoined to

timely accept those felons.          Whether the state is making payments

     5
      We note that there in no apparent procedural barrier to
reopening the case, since so far as we can tell from the record,
the County is correct in contending that no final judgment has
been entered in this case. Our appellate jurisdiction rests on
28 U.S.C. § 1292(a)(1).

                                        10
to the County for housing state felons, under the state statutory

scheme, cannot by itself resolve the question of the state's

constitutional obligations under the Eighth Amendment.         To hold

otherwise would mean that a state could abdicate its constitutional

responsibility to its own felons by paying a third party to house

them.

     We addressed the issue of state liability for unconstitutional

conditions at a county jail in Alberti.          We recognized that

liability under § 1983 depends on which state actor is responsible

for the civil rights violation, and that this question "turns

exclusively on state law."    Alberti, 937 F.2d at 994 (emphasis in

original).   We agreed with the district court that, under Texas

law, both the state and county are responsible for the conditions

at county jails, and both are therefore liable for constitutional

violations at such jails.    Id. at 996-97.   In particular, we noted

that by statute the state places primary responsibility for the

confinement of felons on a state agency, the TDCJ.       Id.    In our

case, the State defendants can point to no significant changes in

state law that would alter the careful analysis and conclusion of

the district court and this court in Alberti.6    The state's current

     6
      Under the current statutory scheme, the TDCJ remains the
state agency "with primary responsibility for [ ] the
confinement, supervision, and rehabilitation of felons...."
TEX.GOV'T CODE § 493.001 (Vernon Supp.1994). The Board of the
TDCJ is required to adopt and enforce an allocation formula for
accepting inmates from county facilities. Id. § 499.071. The
director of the TDCJ's institutional division must "adopt rules
to provide for the safe transfer of inmates from the counties in
which inmates are sentenced to the institutional division." Id.
§ 500.006(a). Further, a provision effective after the Alberti
decision now provides:

                                 11
statutory       obligation   to   make        payments   to   counties   holding

paper-ready felons does not divest the state of its constitutional

responsibility for assuring that state felons—felons convicted in

state courts of state crimes and sentenced to the state prison

system—are not subjected to cruel and unusual punishment.

           However, our case differs from Alberti, since the plaintiffs

in that case brought direct claims against the state defendants to

avoid the very problem we face here.               Alberti, 937 F.2d at 988,

990.       We note that if some of the claims the County asserted

against the State defendants (including claims for contribution and

other relief under state law) had been brought by a private

citizen, they would have been properly dismissed under the Eleventh

Amendment.7       That Amendment however would not appear to bar all


               If a state or federal court determines that conditions
               in a county jail are unconstitutional, and if on or
               after October 1, 1991, the percentage of inmates in the
               jail awaiting transfer to the institutional division is
               20 percent or more of the total number of inmates in
               the jail, the commission shall transfer inmates from
               the jail to an appropriate jail, detention center, work
               camp, or correctional facility, but only to the extent
               necessary to bring the county into compliance with
               court orders or to reduce the percentage of inmates in
               the jail awaiting transfer to the institutional
               division to less that 20 percent of the total number of
               inmates in the jail.

       Id. § 499.125.
       7
      Decades of Supreme Court jurisprudence have defined the
contours of Eleventh Amendment immunity, and we do not attempt a
comprehensive analysis here. Under the current state of the law,
the TDCJ is deemed an instrumentality of the state operating as
its alter ego in carrying out a public function of the state, and
is immune from suit under the Eleventh Amendment. Ruiz v.
Estelle, 679 F.2d 1115, 1136-37 & n. 75 (5th Cir.1982)
(dismissing claims against board of Texas Department of
Corrections (TDC), predecessor of TDCJ, since board was "merely

                                         12
such claims.     Under the authority of Ex Parte Young, 209 U.S. 123,

28 S.Ct. 441, 52 L.Ed. 714 (1908) and later authority, a § 1983

action seeking prospective injunctive relief based on federal

constitutional violations may be brought against state officials in

their official capacities. Will v. Michigan Dep't of State Police,

491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10, 105 L.Ed.2d 45

(1989);     Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct.

3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) ("official-capacity actions

for prospective relief are not treated as actions against the

State.").8

         Our analysis leads us to two questions.       The first is whether

contribution     is   generally   available   to   a   defendant    sued   for

violation of a plaintiff's civil rights under § 1983.              The second



an agency of the state"), cert. denied, 460 U.S. 1042, 103 S.Ct.
1438, 75 L.Ed.2d 795 (1983); Loya v. Texas Dep't of Corrections,
878 F.2d 860, 861 (5th Cir.1989) (holding TDC immune from suit
under Eleventh Amendment). In contrast, counties generally are
not immune from suit under the Eleventh Amendment. Mount Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278-80, 97
S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). State law claims against
the State defendants, such as the claim for contribution under
state law asserted in the third-party complaint, are also barred
by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 102-03, 124-26, 104 S.Ct. 900, 909, 921,
79 L.Ed.2d 67 (1984).
     8
      In appropriate circumstances, attorney's fees ancillary to
the award of prospective injunctive relief may also be awarded,
even where the fees are ultimately to be paid from state coffers.
Hutto v. Finney, 437 U.S. 678, 687-98, 98 S.Ct. 2565, 2572-78, 57
L.Ed.2d 522 (1978); Maher v. Gagne, 448 U.S. 122, 129-34, 100
S.Ct. 2570, 2575-77, 65 L.Ed.2d 653 (1980); Wyatt v. Cole, 928
F.2d 718, 722 (5th Cir.1991) ("Congress intended to authorize
awards of attorneys fees under § 1988 to prevailing parties in
official-capacity actions even when the state is immune from
damages under § 1983."), rev'd on other grounds, --- U.S. ----,
112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).

                                     13
is whether, assuming there is such a general right to contribution,

a federal court has authority to grant relief in favor of a

political subdivision of a state and against the state itself.   We

need not answer the first question here, although we note that

other courts have struggled with it and have reached different

conclusions.9

     9
      Miller v. Apartments and Homes of New Jersey, Inc., 646
F.2d 101 (3d Cir.1981), addressed contribution under § 1982, and
held that damages recoverable by a plaintiff had to be reduced by
the amount of settlements received from other defendants. Id. at
110. It states that there is "a fair uniformity in favor of
allowing contribution among the few courts which have considered
the general question of contribution under the civil rights
acts." Id. at 106. Miller recognized that questions regarding
the effect of settlements and questions of contribution are
closely related. Id. at 105 n. 5 ("However, the two problems
[settlement and contribution] are so intertwined that they cannot
sensibly be treated in isolation."). In Dobson v. Camden, 705
F.2d 759 (5th Cir.1983), on rehearing en banc, 725 F.2d 1003 (5th
Cir.1984), this court addressed what effect to give a settlement
in a § 1983 action. We initially held that a nonsettling
defendant is entitled to a credit for a settlement by a joint
tortfeasor in proportion to the amount of damages caused by the
joint tortfeasor. 705 F.2d at 760. We treated the issue as a
contribution issue of sorts. Id. at 762 ("It is impractical to
consider the effect of a settlement without also considering the
problem of contribution and, indeed, the very nature of joint
liability."). However, when the case went en banc, we affirmed
the district court on grounds that injuries caused by the
settling defendant and the other defendants were separate, and
there could be no joint liability requiring application of a rule
of contribution or credit. 725 F.2d at 1005-6. Our case is
somewhat different from Dobson and Miller, which addressed the
effect of a settlement rather that a direct right of action by
one defendant against another tortfeasor. These cases do
suggest, however, that there are at least some notions of
contribution applied to § 1983.

          Miller is of questionable precedential value because in
     1981 the Supreme Court decided two important contribution
     cases. In Northwest Airlines, Inc. v. Transport Workers
     Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981),
     the Court held that there was no right to contribution under
     Title VII and the Equal Pay Act. In Texas Industries, Inc.
     v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061,

                                14
     Assuming there is a right to contribution generally under §

1983, no party argues that relief from unconstitutional jail

conditions is impossible without enjoining the state. The district

court    plainly   did   not    believe   so   either,   since   it    found

unconstitutional conditions and entered an injunction to relieve

those conditions, but nevertheless dismissed the State defendants.

The issue therefore boils down to whether a federal district court

in such circumstances, exercising its power to remedy civil rights

violations   under   a   federal     statute   passed    pursuant     to   the

Fourteenth Amendment, can grant a county contribution against its

state.

     We have previously held that state subdivisions, such as

counties and municipalities, cannot assert constitutional claims in

federal court against their creator, the state itself, or other

state political subdivisions.       E.g. Town of Ball v. Rapides Parish

Police Jury, 746 F.2d 1049, 1051 n. 1 (5th Cir.1984);                 Appling

County v. Municipal Elec. Authority of Georgia, 621 F.2d 1301,

1307-08 (5th Cir.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 574,

66 L.Ed.2d 474 (1980);         City of Safety Harbor v. Birchfield, 529


     68 L.Ed.2d 500 (1981), the Court held that there is no
     contribution under the federal antitrust laws. Subsequent
     district court cases have looked to these Supreme Court
     cases in deciding whether there can be contribution under §
     1983 or other civil rights statutes. Most find no right of
     contribution. See, e.g., Gray v. City of Kansas City, 603
     F.Supp. 872, 875 (D.Kan.1985); Wright v. Reynolds, 703
     F.Supp. 583, 592 (N.D.Tex.1988); Banks v. City of
     Emeryville, 109 F.R.D. 535, 539 (N.D.Cal.1985). But see
     Hoffman v. McNamara, 688 F.Supp. 830, 834 (D.Conn.1988)
     (allowing setoff for settlement in § 1983 action); Fishman
     v. De Meo, 604 F.Supp. 873, 877 (E.D.Pa.1985) (holding that
     contribution is available in § 1983 cases).

                                     15
F.2d 1251, 1253-56 (5th Cir.1976).        One rationale for these cases

is that political subdivisions lack Fourteenth Amendment or other

constitutional rights against the creating state.10            These cases

arguably   are   distinguishable     because   here   the   County   is    not

necessarily claiming a constitutional right against the state;

instead,   it    is   seeking   contribution   from   the   state    for   the

violation of plaintiffs' constitutional rights.

      Nevertheless, we conclude that the County should not be able

to seek relief against the State defendants.          A fundamental limit

on federal jurisdiction is implicated here.            As a general rule

states cannot be made parties to a federal court suit.                "[T]he

principle of sovereign immunity is a constitutional limitation on

the federal judicial power established in Art. III:          "That a State

may not be sued without its consent is a fundamental rule of

jurisprudence ... of which the [Eleventh] amendment is but an

exemplification.' " Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 98-99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (quoting

Ex Parte State of New York, 256 U.S. 490, 497, 41 S.Ct. 588, 589,

     10
      See City of Trenton v. New Jersey, 262 U.S. 182, 188, 43
S.Ct. 534, 537, 67 L.Ed. 937 (1923) ("In none of [our prior]
cases was any power, right, or property of a city or other
political subdivision held to be protected by the Contract Clause
or the Fourteenth Amendment. This court has never held that
these subdivisions may invoke such restraints upon the power of
the state."); Birchfield, 529 F.2d at 1254 ("Ever since the
Supreme Court's landmark decision in Dartmouth College v.
Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), it has been
apparent that public entities which are political subdivisions of
states do not possess constitutional rights ... in the same sense
as private corporations or individuals. Such entities are
creatures of the state, and possess no rights, privileges or
immunities independent of those expressly conferred upon them by
the state.") (citation omitted).

                                     16
65 L.Ed. 1057 (1921)).         Young represents a necessary exception to

this general       rule    which   "has      not   been    provided   an   expansive

interpretation," id. 465 U.S. at 102, 104 S.Ct. at 909, and we are

not   inclined     to     extend   it   to     cover   the    County's     claim   for

contribution here.           The Supreme Court has concluded "that in

enacting     §     1983,     Congress        did    not     intend    to    override

well-established immunities or defenses under the common law."

Will v. Michigan Dep't of State Police, 491 U.S. 58, 67, 109 S.Ct.

2304, 2310, 105 L.Ed.2d 45 (1989).

      In construing the Eleventh Amendment, the Court has recognized

that Congress has the power under the Fourteenth Amendment to

abrogate Eleventh Amendment immunity for the states, but that

congressional intent to negate such immunity must be unequivocally

expressed.       Id. at 64-66, 109 S.Ct. at 2309;              Pennhurst, 465 U.S.

at 98-100, 104 S.Ct. at 907.            We are unable to find an unequivocal

expression of congressional intent to subject states to claims for

contribution from their own political subdivisions.                   In Pennhurst,

the court recognized that in applying the Young doctrine, "the need

to promote the supremacy of federal law must be accommodated to the

constitutional immunity of the States."                   Id. 465 U.S. at 105, 104

S.Ct. at 910.           In striking this balance, the Court found it

"difficult to think of a greater intrusion on state sovereignty

than when a federal court instructs state officials on how to

conform their conduct to state law."               Id. at 106, 104 S.Ct. at 911.

Employing like reasoning, we can think of few greater intrusions on

state sovereignty than requiring a state to respond, in federal


                                          17
court, to a claim for contribution brought by one of its own

counties.   Cf. Kelley v. Metropolitan County Bd. of Educ. of

Nashville and Davidson County, 836 F.2d 986, 988 (6th Cir.1987)

("if a state cannot be sued by its own citizens, a fortiori it

cannot be   sued   by   its   own   political   subdivisions,   which   are

creatures of the state and exist only at the state's sufferance."),

cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885

(1988).

                                CONCLUSION

     The district court's order is AFFIRMED.




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