Nelson v. Murphy

• Decision Date: 13 March 1995
• Docket Number: No. 94-1764,94-1764
• Citation: 44 F.3d 497
• Parties: Wayne NELSON and Anthony Manos, Plaintiffs-Appellants, v. William MURPHY, Acting Director of the Department of Mental Health and Developmental Disabilities, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 497

44 F.3d 497

Wayne NELSON and Anthony Manos, Plaintiffs-Appellants, v. William MURPHY, Acting Director of the Department of Mental

Health and Developmental Disabilities, et al.,

Defendants-Appellees.

No. 94-1764.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1994.

Decided Jan. 4, 1995.

Opinion Denying Rehearing March 13, 1995.

Mark J. Heyrman, Adam Goodman, law student (argued), Julia A. Bronson, Mandel Legal Aid Clinic, Chicago, IL, for plaintiffs-appellants.

Gary M. Griffin, Asst. Atty. Gen., Robert McFarland, Jan E. Hughes, Asst. Atty. Gen. (argued), Civ. Appeals Div., Chicago, IL, for defendants-appellees.

Before CUDAHY, ESCHBACH, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

When a jury in Illinois returns a verdict of not guilty by reason of insanity, the criminal court commits the defendant for a mental examination. 730 ILCS 5/5-2-4(a). If after receiving the results of this examination the judge decides that the person is mentally ill and dangerous, the judge must order the person confined "in a secure setting". Ibid. "Such defendants placed in a secure setting shall not be permitted outside the facility's housing unit unless escorted". Ibid. Notwithstanding this command, a court may permit a confined person to move freely on and off the facility's grounds. Every 60 days the director of the mental health facility "shall file a treatment plan with the court.... Such plan may ... include unsupervised on-grounds privileges, off-grounds privileges (with or without escort ...), home visits and participation in work programs". 730 ILCS 5/5-2-4(b).

Wayne Nelson and Anthony Manos were found not guilty by reason of insanity. Nelson had been charged with murder, Manos with attempted murder. Each was found mentally ill and dangerous, ordered confined "in a secure setting", and sent to the Elgin Mental Health Center. On the recommendation of a treatment plan, both received passes for on- and off-grounds travel. In December 1988 the criminal court approved a treatment plan that permitted Nelson to move on-grounds from one activity to another, and to leave the grounds on supervised travel twice a month (but not to visit his home). In January 1988 the criminal court approved a treatment plan that gave Manos similar on-grounds privileges, and in September 1989 the court granted Manos's motion for supervised off-grounds travel (but he, too, was not to visit his home).

In May 1990 two persons confined at Elgin escaped while traveling on off-grounds passes. William Murphy, then the director at Elgin, concluded that security needed improvement. He canceled all off-grounds passes and curtailed unescorted movement within the grounds while the facility constructed a fence. Treatment plans duly filed with the criminal court described this change. Neither Nelson nor Manos complained to the state court--although other inmates did, and some of them obtained judicial relief. Instead, in December 1990 Nelson and Manos filed suit in federal court under 42 U.S.C. Sec. 1983, contending that the reduction of their privileges violated the due process clause because it was a response to a breach of security rather than an outgrowth of an individual evaluation. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Litigation is proper under Sec. 1983, rather than 28 U.S.C. Sec. 2254, because the scope of passes may be understood as a condition of confinement. See Graham v. Broglin, 922 F.2d 379 (7th Cir.1991) (request for placement in a work release program may be adjudicated under Sec. 1983).

Plaintiffs believe that the due process clause forbids any decisions applicable across the board to all inmates. They sought injunctive "As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Fed.R.Civ.P. 23(c)(1). This case was active on the district court's docket for three years and four months, but despite two motions for class certification and full briefing by the parties the court never decided whether it could be maintained as a class action. The court did not give a reason for this inaction, and we do not perceive one. Prompt decision one way or the other is imperative not only so that the parties know whose interests are at issue but also so that representative plaintiffs with live claims may be substituted. For a properly certified class action survives the mootness of the original representative's claims, while an individual action must be dismissed in identical circumstances. Compare Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), with Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). Both plaintiffs have been released from confinement at Elgin--Manos in December 1990 and Nelson in April 1993. See People v. Nelson, 244 Ill.App.3d 356, 185 Ill.Dec. 143, 614 N.E.2d 277 (1st Dist.1993). The district court did not mention these releases, which moot plaintiffs' request for injunctive relief. Although each plaintiff is subject to recommitment for future misbehavior, that possibility was held insufficient to satisfy Article III in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), which concluded that release on parole moots a dispute about the procedures the state uses to make parole decisions. See also Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). A decision on class certification could permit other inmates to carry on the quest for injunctive relief, Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), but two considerations counsel against a remand. First, the small size of the putative class (fewer than 85 at all pertinent times) coupled with the fact that each inmate was entitled to (and several received) individual consideration in state court suggests that the conditions for class certification have not been met. Second, Nelson and Manos have a live dispute with the defendants about damages, and our resolution of this dispute shows that class certification would be imprudent.

relief and damages on behalf of a class of all persons confined at Elgin after acquittal by reason of insanity. The fence was completed in March 1991, but on-grounds unsupervised travel has not been fully restored; most inmates' movement is supervised. In March 1994 the district court dismissed the suit without prejudice to its renewal in state court, concluding that abstention is appropriate.

The district court abstained under the principles of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Burford held that a federal court should abstain when the federal case depends on the resolution of unsettled questions of state law within the competence of an administrative agency--in Burford itself, an agency regulating the oil industry. Plaintiffs observe that directives affecting passes from a single state mental facility are some distance from a statewide program of oil and gas regulation, and they add that nothing in this case depends on the resolution of an unsettled question of state law. The district court conceded all this but thought Burford applicable because the rules governing the treatment of mentally ill persons are important to the state. Although Illinois does not handle these matters through an agency with statewide power, or even a court of specialized jurisdiction, the district judge thought that the criminal court supervising each person's custody specializes in the details of that case: "While the Illinois circuit courts can hardly be said to [be] courts of technical specialization, in this instance they are courts of individual specialization."

Plaintiffs see this as proof that Burford cannot apply. No agency, no Burford abstention. This oversimplifies matters. Five years ago the Court recapitulated the Burford doctrine:

Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"; or (2) where the New Orleans Public Service, Inc. v. New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (NOPSI ) (citations omitted). This language suggests that Burford is limited as plaintiffs propose. Yet two years ago the Court suggested that the Burford doctrine might justify abstention in a domestic relations case otherwise within the diversity jurisdiction, when a state court is available to resolve difficult questions of state law. Ankenbrandt v. Richards, --- U.S. ----, ----, 112 S.Ct. 2206, 2216, 119 L.Ed.2d 468 (1992). If Burford abstention might be apt in a domestic-relations dispute, an agency's role cannot be essential.

"exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."

Still, it is hard to fit this dispute within Burford. Its outcome does not depend on the answer to some unsettled issue of state law. And far from using a single agency or specialized court to "establish a coherent policy with respect to a matter of substantial public concern", Illinois has divided responsibility among the many criminal courts throughout the state. A decade ago, when a state judge issued an injunction governing the handling of escape risks at mental institutions, the Supreme Court of Illinois reversed on the ground that each judge supervising a person in custody after an insanity acquittal is entitled to consider the subject independently. People v. Roush, 101 Ill.2d 355, 78 Ill.Dec. 349, 462 N.E.2d 468 (1984). Roush establishes that Illinois does not seek a uniform...