Rakes v. Coleman

• Citation: 318 F. Supp. 181
• Decision Date: 28 September 1970
• Docket Number: Civ. A. No. 174-70-R.
• Parties: Robert Bryant RAKES v. Bernard S. COLEMAN, etc., et al.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

318 F. Supp. 181

Robert Bryant RAKES v. Bernard S. COLEMAN, etc., et al.

Civ. A. No. 174-70-R.

United States District Court, E. D. Virginia, Richmond Division.

September 28, 1970.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Philip J. Hirschkop, Alexandria, Va., for plaintiff.

Tabor Cronk, Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Robert Bryant Rakes, proceeding in forma pauperis, attacks herein the practice of Virginia officials, acting under various State statutes, of confining alcoholics for "treatment and rehabilitation." The defendant Coleman is a state circuit judge, sued as representative of state judges committing persons pursuant to Va.Code § 18.1-200.1 (Supp.1970). The defendant Brown is Director of the Department of Welfare and Institutions of Virginia; the defendant Cunningham is Director of the Division of Corrections of that department; the defendant Oliver is Superintendent of the Virginia State Farm; the defendant Holton is Governor of Virginia, and Miller is Attorney General of the state.

When the suit was brought, on March 25, 1970, Rakes was confined at the State Farm under the order of Judge Coleman, who committed him pursuant to § 18.1-200.1 on September 22, 1969. Allegedly, Rakes was then in the immediate custody of Oliver. Oliver, along with Brown and Cunningham, were alleged to be responsible under state law for the treatment of Rakes and others committed in similar fashion. Holton and Miller are stated to be the "chief executive officers of the Commonwealth * * * responsible for the implementation of all state statutes."

Rakes sues each defendant "individually and in his official capacity and as a representative of his officers, agents, subordinates, servants, employees, attorneys, and those persons in active concert with him."

Rakes, himself, sues as representative of the class of persons "who have been committed to the Department of Welfare and Institutions and/or who have been incarcerated in a regular penal institution under the color of § 18.1-200.1 or § 18.1-202."

The relief sought is as follows:

1. A declaratory judgment that the application of § 18.1-200.1 and § 18.1-202 violate due process and constitutes cruel and unusual punishment, at least where rehabilitation for alcoholism is not provided and individuals are merely committed to regular penal institutions, and where courts activate the unserved portions of commitment terms when individuals reappear on charges of public drunkenness.

2. Mandatory injunctive relief requiring the defendant to provide effective rehabilitative facilities.

3. An injunction against the further incarceration of individuals pursuant to § 18.1-200.1 and § 18.1-202 until such facilities are provided.

4. An injunction against the enforcement of § 18.1-237 for the reason that it prescribes a penalty for the crime of chronic alcoholism, in violation of the Eighth Amendment.

5. A declaration, and injunctive relief consistent therewith, that the seventy-hour work week required of the plaintiff while incarcerated is a form of involuntary servitude.

The relevant state statutes are as follows:

Commitment of persons dismissed or acquitted of certain charges because of alcoholism.—Any person arrested for an offense in which proof of drunkenness or being under the influence of alcohol is a necessary element of the crime and is discharged, dismissed or acquitted of such charge by reason of being an alcoholic, shall be subject to commitment to the control and supervision of the Director of the Department of Welfare and Institutions in the same manner and for the same purposes as prescribed in § 18.1-200, or to the Department of Mental Hygiene and Hospitals, or to a facility under the control of the State Health Department for treatment of alcoholics, in the discretion of the court. Va.Code § 18.1-200.1 (Supp.1970).

Probation or release of such persons.— If the Director of Welfare and Institutions finds it not possible or expedient to place such persons as are committed to him under the provisions of § 18.1-200 in the institutions referred to in that section, the committing court on application of the Director may place such persons on probation. The Director or his authorized agents may at any time order the release of such persons when satisfied that such release is conducive to the welfare of such persons and will not be detrimental to the public health or the public welfare, and may prescribe reasonable terms or conditions upon which such release is granted. If any person so released violates the terms or conditions of his or her release, the county, municipal or juvenile and domestic relations court exercising jurisdiction in the city or county wherein such violation occurs may revoke the order of release and direct his or her apprehension and detention by the proper law enforcement officers and his or her return to the Director, and such court, on its own motion or on application of the Director, may recommit such person to an institution or make such other disposition as may be provided by law. In no case shall the total period of probation, confinement, supervision and reconfinement exceed three years. Va. Code § 18.1-202 (Supp.1970).

Profane swearing and drunkenness.— If any person arrived at the age of discretion profanely curse or swear or get or be drunk in public he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than one nor more than twenty-five dollars. If any person shall be convicted for being drunk in public three times within one year in this State, upon the third or any subsequent conviction for such offense within the period of one year, such person may be punished by imprisonment in jail for not more than six months or by a fine of not more than fifty dollars, or by both such fine and imprisonment.

Counties, cities and towns may pass or adopt ordinances or resolutions prohibiting and punishing the conduct and acts embraced in this section. Va.Code § 18.1-237 (Supp.1970).¹

Rakes alleges that he has been a chronic alcoholic for many years and has been arrested seventy-five times for public drunkenness. He was first committed under § 18.1-200.1 in April of 1967, by the Municipal Court of Fredericksburg. Twice released after some months, the same court twice recommitted him, after Rakes was charged with public drunkenness, pursuant to § 18.1-202. After the second recommitment, he was released by court order after serving four months. (It is not alleged whether the earlier releases were pursuant to order of court or of that of the Director of the Department of Welfare and Institutions.) Recommitment soon followed, again by the Fredericksburg Municipal Court, when Rakes was found to have been drunk in public. An appeal was taken, and the Circuit Court imposed a new indefinite term. "There appears," the complaint alleges, "to be a pattern of abuse of § 18.1-200.1 by the Fredericksburg judges to keep plaintiff under the three months to three year sentence at all times * *"

While incarcerated, Rakes alleges, he lives among ordinary convict prisoners and receives no rehabilitative treatment particularly related to his alcoholism. Nor does confinement have any curative effect upon his alcoholism.

The defendants have moved to dismiss the complaint for failure to state a claim on which relief can be granted. Fed. Rules Civ.Proc. rule 12(b) (6), 28 U.S. C. They state that no actual controversy exists between Rakes and the defendants Holton, Miller and Coleman, and that in essence the suit is without merit because it seeks to compel the expenditure of general state funds. Moreover, it is contended, Rakes has an available remedy by means of a state habeas corpus action, pending at the time the motion to dismiss was filed. Further objection is made to the plaintiff's alleged representative status.

On April 24, 1970, the defendants filed an amendment to their motion to dismiss, wherein they suggest that the case has become moot for the reason that Rakes was that day released by order of the defendant, Coleman, in the Fredericksburg Circuit Court on April 15, 1970. The order, also filed, is apparently one of unconditional release.²

The Court has heard argument, and both sides have submitted memoranda on the defendants' motions. The Court will confine its consideration at this point to the grounds for dismissal urged by the defendants. In addition, the Court is bound to consider the preliminary question of its jurisdiction to entertain the case without convening a three-judge court pursuant to 28 U.S.C. § 2281 et seq.

The question of the need for a three-judge court must be explored with reference to each individual item of relief sought. The statutory court must be convened when these requisites are met:

(1) An interlocutory or permanent injunction must be sought;

(2) The injunction sought must be one to restrain the action of a state officer or administrative agency;

(3) The action sought to be enjoined must consist of the enforcement or execution of a state statute, and,

(4) The injunction must be sought on the ground that the state statute is unconstitutional. Bartlett & Co., Grain v. State Corp. Commission, 223 F.Supp. 975 (D.Kan. 1963).

The function of a single judge is restricted:

When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962).

Dismissal of a claim by a single judge is proper when the constitutional question appears "insubstantial" or when a basis for equitable relief seems lacking.

Insubstantiality

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