Doe v. Lally

• Citation: 467 F. Supp. 1339
• Decision Date: 05 March 1979
• Docket Number: Civ. No. Y-74-63.
• Parties: John DOE v. Robert LALLY, et al.
• Court: U.S. District Court — District of Maryland

467 F. Supp. 1339

John DOE v. Robert LALLY, et al.

Civ. No. Y-74-63.

United States District Court, D. Maryland.

March 5, 1979.

COPYRIGHT MATERIAL OMITTED

E. Dale Adkins, III, Baltimore, Md., for plaintiff.

John P. Stafford, Jr., Asst. Atty. Gen., Baltimore, Md., for defendants.

JOSEPH H. YOUNG, District Judge.

Plaintiff John Doe began this suit under 42 U.S.C. § 1983 seeking damages as a result of a homosexual rape suffered while an inmate at the Maryland Reception, Diagnostic and Classification Center ("MRDCC") on March 29, 1973. The complaint was later amended to include a claim for injunctive and declaratory relief. Plaintiff had been brought to the MRDCC on March 21, 1973 for classification following conviction of assault with intent to harm. Both the Maryland State Penitentiary ("Penitentiary") and the MRDCC are located in the same compound in Baltimore, but their respective facilities and inmates are supposed to remain separate. Plaintiff states that he was attacked during the course of a widespread riot in the Penitentiary which spilled over into the cell blocks of the MRDCC. In his initial complaint, plaintiff alleged that his sexual molestation was the immediate result of defendants' failure to maintain proper security and control throughout the Penitentiary at all times. Plaintiff named the following parties as defendants: Robert Lally, Maryland Secretary of Public Safety; Gordon C. Kamka, Superintendent of the MRDCC; James Jordan, the Maryland Commissioner of Corrections; and Gerald H. McClellan, the Warden at the Maryland Penitentiary.

This Court denied defendants' motion to dismiss plaintiff's complaint on December 11, 1974. In the meantime, in April, 1976, another inmate of the MRDCC, Nathan M. Nance, moved to intervene as a party plaintiff asserting precisely the same claims as plaintiff Doe as to MRDCC conditions and the commingling of Diagnostic Center inmates with the Penitentiary population. See F.R.Civ.P. 24(b). Plaintiff Nance also moved to certify the proceeding as a class action. While this Court permitted Nance to intervene on January 7, 1977 it initially denied the class certification, subject to later reconsideration. Upon subsequent reconsideration and in light of the fact that several of the issues in the case were likely to become mooted, this Court granted plaintiff-intervenor's motion for class certification on October 11, 1977 pursuant to F.R. Civ.P. 23(b)(2) for the limited purpose of preserving the issues from mootness. On February 25, 1977, however, plaintiff-intervenor Nance escaped from the Southern Maryland Correctional Camp Center, and is still in an escape status, his whereabouts unknown.

Defendants, represented by the Attorney General's Office of Maryland, have now moved to dismiss both that portion of plaintiff Doe's amended complaint pertaining to injunctive and declaratory relief and the order certifying the class action. They claimed that since Nance has escaped, the class action should be decertified, and without such certification, plaintiff Doe's action for injunctive and declaratory relief has become mooted because Doe no longer resides at the MRDCC.

I. THE MOTION AS TO PLAINTIFF DOE

Plaintiff Doe's original complaint sought only money damages as a result of the alleged pederasty and other abuses to which he was subjected during the course of a riot in the Maryland State Penitentiary on March 29, 1973. In his amended complaint, filed after he had been transferred from the MRDCC, Doe asked for certain declaratory and injunctive relief in light of what he maintained was an atmosphere of pervasive violence and danger to the inmates at the MRDCC which had created a pattern, the consequence of which was the mass riot during which plaintiff Doe was raped.

Defendant would dismiss this portion of plaintiff's amended complaint on two grounds: (1) at the time of filing the amended complaint, Doe was no longer being subjected to the conditions from which he sought declaratory and injunctive relief, and (2) the request for such relief was moot because Doe's case was not at that time, nor is it now, certified as a class action. In support of their position, defendants cite Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Sosna v. Iowa, 419 U.S. 393, 399-402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); DeFunis v. Odegaard, 416 U.S. 312, 319-20, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); and Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977).

Defendants' arguments must be rejected. In granting plaintiff Nance's motion to intervene in this civil rights case, the Court recognized the essential similarity of the claims being raised by the two petitioners. On the same day that it granted plaintiff Nance leave to intervene, the Court also denied his request for class certification, subject to later reconsideration should the facts warrant it. Class certification was in fact granted upon such later consideration.

It now appears that plaintiff Nance has escaped from custody, and for these reasons, considered in more detail below, defendants would also seek to have the class action decertified. Acceptance of the logic of defendants' theories would have the unwarranted effect of preventing litigation of the equitable issues raised by both plaintiffs. Inmates at the MRDCC were, and still are, confined for short periods of time prior to being transferred to other penal institutions. Plaintiff Doe was at the MRDCC for some fifteen days, from March 21 to April 5, 1973. The rape occurred on March 29, 1973. Unless courts adopt a liberal attitude towards mootness aspects of civil rights claims brought in connection with alleged deprivations occurring at temporary prison facilities, such claims will continue to recur and escape adjudication. As the Supreme Court said in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), such deprivations will be "capable of repetition, yet evade review" by the courts. Plaintiff Doe's original complaint was also filed after he had left the MRDCC, and as far as this Court is concerned, a plaintiff's essential right to relief pursuant to civil rights claims should not depend on his remaining within the institution where the deprivation occurred. Otherwise, defendants in such actions could simply defeat a court's jurisdiction in every instance by transferring inmates from institution to institution.

Thus, claims for money damages are clearly not mooted by a transfer or release from confinement, or by alleviation of the alleged violation. See Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976); United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). In Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977), the Fourth Circuit decided that claims for injunctive relief become mooted whenever the prisoner is no longer subject to the alleged deprivation, unless the suit has been filed and certified as a class action.

II. THE MOTION AS TO PLAINTIFF NANCE

The ultimate resolution of the motion to dismiss parts of the Doe complaint is conceptually intertwined with defendants' motion to dismiss plaintiff Nance as intervenor and to decertify the class action. To grant defendants' motion would be to confine the scope of any hearing merely to damages claimed by plaintiff Doe.

When a court decides to certify an action as a class action, it must be able to distinguish or define membership of the class at the outset. See, e. g., D & A Motors v. General Motors Corp., 19 F.R.D. 365, 366, 22 F.R.Serv. 23a. 11, Case 1 (S.D. N.Y.1956); 3B Moore's Federal Practice ¶ 23.041, at 23-114 (2d ed. 1978). The representative plaintiff or plaintiffs may maintain a class action only if the requirements of Rule 23(a) and (b)¹ of the Federal Rules of Civil Procedure are satisfied at the time of certification. Since plaintiff Nance had been permitted to intervene in plaintiff Doe's original suit, it would appear that for the purposes of class certification, either named plaintiff could serve as a proper class representative. Once an affirmative determination has been made, however, the action should be viewed as having been a class action from the date of commencement and not merely the determination date. 3B Moore's Federal Practice ¶ 23.50, at 23-434 (2d ed. 1978). As the court in Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 326, 11 F.R.Serv.2d 23.1, Case 1 (E.D.Pa.1967) noted:

"The use of the word `maintained' in 23(c)(1) is some indication that the court is expected to determine what the lawsuit has always been, not what it is about to become." (Emphasis added).

In the instant case, certification came after plaintiff Doe's amended complaint and at the request of intervenor Nance who is now unavailable for trial. At the time Nance filed his complaint for declaratory and injunctive relief, he was still confined in the MRDCC. Since his complaint was subsequently certified as a class action, it cannot be mooted due to any later transfer to another institution. Inmates v. Owens, supra. The issue which does arise, however, is whether a representative class exists in light of the fact that its original plaintiff-representative, Nance, is unavailable to participate in the trial. Without Nance, say defendants, the action must be decertified as a class action, and without a class action, plaintiff Doe is limited to recovering only damages under the holding in Mawhinney v. Henderson, supra. While defendants' logic may be straightforward, it is not compelling.

The courts have frequently faced the recurring problem of mootness in connection with class action suits as well as the question of whether the original plaintiff remains a proper representative. With regard to mootness, the Supreme Court made it clear in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), that a representative party...