HENDRICKSON v. GRIGGS, 672 F. Supp. 1126 (N.D.Iowa 04/9/1987)

[1] UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, CENTRAL DIVISION

[2] 2C 84-3012

[3] 672 F. Supp. 1126, 1987

[4] April 9, 1987

[5] Thomas Neil Hendrickson, Jr.; Bertha M. Foy, a minor, by her next friend, Blake Parker; and Sessions Harper, a minor, by his next friend, Blake Parker; individually and on behalf of all others similarly situated, Plaintiffs,
v.
Charles Griggs, individually and in his capacity as Sheriff of Webster County; Leonard Hansch, Chairman, and Elmer Pliner, Joseph Cunningham, Jill Messerly and Myron Groat, individually and as members of the Webster County Board of Supervisors; Webster County, Iowa; Terry E. Branstad, individually and in his capacity as Governor of the State of Iowa; and Richard R. Ramsey, individually and in his capacity as Executive Director of the Iowa Criminal and Juvenile Justice Planning Agency, Defendants

[6] Harry F. Swanger, and Blake Parker, for Plaintiffs. , Carlton Salmons, for defendants. , Gordon Allen and Charles Phillips, for Defendants.

[7] Donald E. O'Brien, Chief Judge.

[8] The opinion of the court was delivered by: O'BRIEN

[9] ORDER

[10] DONALD E. O'BRIEN, Chief Judge.

[11] The Court has before it:

[12]

- motions for dismissal under Rule 12(b)(6) and 12(b)(7), appointment of a guardian ad litem under Rule 17, and summary judgment filed by Defendants Griggs, Hansch, Pliner, Cunningham, Messerly, Groat, and Webster County (hereinafter the "County Defendants");



[13]

- a motion for summary judgment and a motion for a temporary restraining order filed by the plaintiffs; and



[14]

- a motion for summary judgment filed by Defendants Branstad and Ramsey (hereinafter the "State Defendants").



[15] Because the motion for a temporary restraining order was considered at a hearing at which all defendants were represented, the Court will treat that motion as a motion for a preliminary injunction. Walker v. O'Bannon, 487 F. Supp. 1151, 1153 (W.D.Pa. 1980). The plaintiffs have filed a motion to recertify the plaintiff class and create a defendant class, although this motion will be held in abeyance by the Court. While all motions for summary judgment were filed before the plaintiffs' motion for a TRO, the Court will address the motions for summary judgment today only to the degree necessary to determine whether the plaintiffs' request for a TRO must be denied as a matter of law. For the reasons given below, the Court denies the defendants' motions for summary judgment insofar as they involve the following assertions:

[16] 1) The plaintiffs' § 1983 claims are barred by res judicata and collateral estoppel.

[17] 2) The plaintiffs must exhaust administrative remedies.

[18] 3) The Office of Juvenile Justice and Delinquency Prevention ("OJJDP") has primary jurisdiction over the defendant's statutory § 1983 claim.

[19] 4) The plaintiffs' statutory § 1983 claim is not ripe for adjudication.

[20] 5) The plaintiffs must proceed through a guardian ad litem.

[21] 6) The plaintiffs' JJDPA claim must be dismissed because a necessary and indispensable party has not been sued.

[22] 7) Section 1983 does not provide a cause of action to seek redress for violations of rights created by § 5633 of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. § 5601, et seq. ("JJDPA").

[23] The Court grants the state defendants' motion for summary judgment against the plaintiffs' prayer for an order compelling the state to return OJJDP funds already received and stop receiving such funds. The Court postpones consideration of the plaintiffs' motion for summary judgment and the remaining portions of the defendants' motions for summary judgment, and grants a substantially modified version of the plaintiffs' motion for a preliminary injunction.

[24] All defendants have moved for dismissal or summary judgment on plaintiffs' claim that they are entitled to relief because several jailing practices of the county defendants violate the JJDPA. The plaintiffs claim that the state plan requirements in § 5633 of the JJDPA create rights enforceable under § 1983, or in the alternative, give rise to an implied cause of action under the four-step analysis of Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). *fn1"

[25] The Juvenile Justice and Delinquency Prevention Act was enacted in 1974, with relevant amendments in 1977, 1980 and 1984. Title II of the original Act established a formula grant program under which states and local governments could seek funds from the OJJDP for projects and programs related to juvenile justice and delinquency. Pub. L. No. 93-415, Title II, § 221, 88 Stat. 1119 (1974) (codified as amended at 42 U.S.C. § 5631 (1982)). Section 223 of the Act required states seeking formula grants to submit a plan for carrying out the purposes of the Act and established a list of state plan requirements. Section 223, supra (codified at § 5633). Under a 1980 amendment, participating states have been required to submit annual performance reports to "describe the status of compliance with state plan requirements." Pub. L. No. 96-509, § 11(a)(1) (codified at § 5633(a)).

[26] This case involves the defendants' compliance with three such requirements:

[27]

1. The deinstitutionalization of status offenders. Section 5633(a)(12)(A), as amended in 1977 and 1980, requires each plan to "provide within three years after submission of the initial plan that juveniles who are charged with or who have committed offenses that would not be criminal if committed by an adult or offenses which do not constitute violations of valid court orders, or such nonoffenders as dependent or neglected children, shall not be placed in secure detention facilities or secure correctional facilities." *fn2" (Hereinafter "subsection 12").



[28]

2. The ban on regular contact between juveniles and incarcerated adults. Section 5633(a)(13) of the original Act requires the plan to "provide that juveniles alleged to be or found to be delinquent and youth within the purview of paragraph 12 shall not be detained or confined in any institution in which they have regular contact with adult persons incarcerated because they have been convicted of a crime or are awaiting trial or criminal charges." (Hereinafter "subsection 13").



[29]

3. The jail removal mandate. Finding that "the time has come to go farther," Congress added subsection (a)(14) in 1980. H.Rep.No. 946, 96th Cong., 2d Sess. 24 (1980). As amended in 1984, it states that a plan must "provide that, beginning after the five-year period following December 8, 1980, no juvenile shall be detained or confined in any jail or lockup for adults, except that the Administrator shall, through 1989, promulgate regulations which make exceptions with regard to the detention of juveniles accused of non-status offenses who are awaiting an initial court appearance pursuant to an enforceable State law requiring such appearances within 24 hours after being taken into custody (excluding weekends and holidays) provided that such exceptions are limited to areas which -- (i) are outside a Standard Metropolitan Statistical Area, (ii) have no existing acceptable alternative placement available, and (iii) are in compliance with the provisions of paragraph 13. *fn3" (Hereinafter "subsection 14").



[30] Claiming that Webster County fails to comply with each of these requirements and that the state is not substantially complying with subsections 12 and 14, the plaintiffs seek declaratory, compensatory and equitable relief under § 5633 alone and in combination with § 1983. *fn4"

[31] I. PRELIMINARY ISSUES

[32] As the plaintiff class is presently certified, its members have been or will be placed in the Webster County Jail by a juvenile court. The county defendants argue that the plaintiffs' § 1983 claims are precluded under the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) because they could raise these issues in juvenile court. *fn5" This argument can only pertain to those plaintiffs who have already been placed in the jail, because with the exception of those now in jail, the plaintiffs who would be protected by the injunction have not had their day in court.

[33] The Court finds that neither issue nor claim preclusion can bar the claims of the previously jailed plaintiffs. Issue preclusion is unavailable because the defendants have produced no evidence that these issues were actually litigated or necessarily decided in any juvenile court proceedings. Ideal Mutual Insurance Co. v. Winker, 319 N.W.2d 289, 296 (Iowa 1982). Iowa law governs the claim preclusive effect of an Iowa juvenile court's judgment, and the Court cannot find an Iowa case in which claim preclusion was successfully asserted against a civil plaintiff because he was a defendant in a prior criminal case, let alone a juvenile court defendant. The Restatement (Second) of Judgments does not give prior criminal judgments a claim preclusive effect. See id. at § 85 comment (a) (1980). Although a § 1983 plaintiff can be precluded from raising issues which she could have raised in a prior civil action which she initiated, Migra v. Warren City District Board of Education, 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984), a footnote in Migra suggested that former state court defendants should be treated differently because they do not voluntarily go to state court first. Id. at 85 n.7. In a very important case, the Second Circuit recently held that Migra does not apply to federal plaintiffs who were the defendants in a prior state court action. Texaco v. Pennzoil, 784 F.2d 1133, 1144 (2d Cir. 1986), reversed on other grounds, 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 ( 1987). In light of this authority, the Court finds that an Iowa court would not give a juvenile judge's placement decision a claim preclusive effect. The county defendant's motion to dismiss on this ground is denied.

[34] The defendants assert that the plaintiffs must first file a complaint with the OJJDP, as permitted in 28 C.F.R. § 18.5(j) (1986). *fn6" They contend that § 18.5(j) is a remedy which must be exhausted and that only the OJJDP has primary jurisdiction to decide whether states have complied with § 5633. If the plaintiffs can proceed under § 1983, no exhaustion requirement applies. Patsy v. Board of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). The doctrine of primary jurisdiction *fn7" presumes that the plaintiffs can "get relief" administratively, see Rosado v. Wyman, 397 U.S. 397, 406 n.8, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); Chowdhury v. Reading Hospital and Medical Center, 677 F.2d 317, 320 (3d Cir. 1982). However, the most important form of relief the plaintiffs seek -- an order requiring compliance -- is not available from the OJJDP. See § 18.5(a). The OJJDP can only cut off funding. The doctrine of primary jurisdiction therefore does not bar the plaintiffs' claim. *fn8"

[35] In briefs filed prior to subsection 14's compliance deadline of December 5, 1985, the defendants argued that plaintiffs' claim under that subsection was not ripe. Following that date, they argued that the claim was not ripe because the Administrator had not yet decided whether the defendants had complied or substantially complied. To the extent that this argument implies that only the OJJDP has jurisdiction to decide whether the defendants satisfy § 5633, the argument merely restates their primary jurisdiction argument which the Court has already rejected. Ripeness depends upon whether the plaintiffs' injuries have occurred or are about to occur, not whether the illegality of that injury has already been established. That question is properly before the Court at this time.

[36] The county defendants have argued that Fed.R.Civ.P. 17 requires a plaintiff class of minors to proceed through a guardian ad litem and have asked the Court to appoint one. Plaintiffs' counsel respond that one of them can represent the class as "next friend". Under standards set out in Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y. 1976), the Court concludes that the class can be adequately represented by the plaintiffs' counsel, so that a guardian ad litem need not be appointed at this time.

[37] Finally, the Court must decide whether the plaintiffs' JJDPA claim must be dismissed for failure to name an indispensable party. The county defendants argue that the plaintiffs must sue the juvenile judges who order the sheriff to place class members in jail, and that their failure to do so warrants dismissal under Rule 12(b)(7). The Eighth Circuit's decision in R.W.T. v. Dalton, 712 F.2d 1225, 1233 (8th Cir. 1983), indicates that juvenile judges are not indispensable parties to actions of this sort. The motion is therefore denied.

[38] II. THE PLAINTIFFS' § 1983 CAUSE OF ACTION FOR RIGHTS CREATED BY § 5633

[39] Prior to 1980, citizens could only enforce federal statutory rights if a cause of action was expressly provided for in the statute or if one could be implied under general principles stated in Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975). Under these principles, a cause of action could only be implied if the plaintiff was one of the class for whose especial benefit the statute was enacted, a congressional intent to create a remedy could be found, such a remedy would be consistent with legislative purposes, and it would not inappropriately interfere with a traditionally state area. Id. In effect, these requirements placed the burden on the plaintiff to find a specific intent to permit this particular form of a remedy.

[40] Since 1874, § 1983 has expressly provided a private cause of action for claims arising from "the deprivation of any rights, privileges or immunities secured by the Constitution and laws " by individuals acting under color of state law. Until Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), the "and laws" phrase was generally ignored. In Thiboutot, the court formally recognized that § 1983 provided a private cause of action for "claims based on purely statutory violations of federal law" by state actors. Now plaintiffs suing state actors who cannot satisfy Cort v. Ash by showing that the same Congress which created a statutory right also intended to give them a civil remedy may rely upon the general purpose of § 1983 -- "to provide a remedy, to be broadly construed, against all forms of official violations of federally protected rights." Monell v. New York City Department of Social Services, 436 U.S. 658, 700-701, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

[41] Two requirements persist. A separate federal statute must create enforceable rights, privileges or immunities, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 19, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981) (hereinafter " Pennhurst I "), and Congress must not have specifically foreclosed the § 1983 remedy, Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981).

[42] A. Does § 5633 Create Enforceable Rights?

[43] The easy part of answering this question is deciding where to look; "the key to the inquiry is the intent of the legislature." See Clammers Association 453 U.S. at 13; Hill v. Group Three Housing Development Corp., 799 F.2d 385, 394 n.10 (8th Cir. 1986). The difficult part is deciding what reflects an intent to create a right. As usual, Congress "has voiced its wishes in muted strains and left it to the courts to discern the theme" indirectly. Rosado v. Wyman, 390 U.S. at 412. If the Court were to define the term "right" so narrowly that no right would exist unless the Court could find an intent to permit a private suit, nothing would be left of Thiboutot.9 On the other hand, the purpose behind the quiet inclusion in § 1983 of the phrase "and laws" is too uncertain to permit that statute to give rise to a remedy against any state official who has violated any federal law. See Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139 (8th Cir. 1984); First National Bank of Omaha v. Marquette National Bank, 636 F.2d 195, 198-99 (8th Cir. 1980).

[44] A right was easily found in Thiboutot because the case involved an entitlement program. The existence of a right was easily rejected in Pennhurst I, when plaintiffs sought to enforce a provision labeled as a bill of rights for persons with developmental disabilities, but which created no separate obligation upon those states receiving funds under the law to respect those rights. The Supreme Court found that because the law "does no more than express a congressional preference for certain kinds of treatment," the "rights" described were not rights enforceable under § 1983. 451 U.S. at 19.

[45] However, in so finding, the court emphasized that the language in question was too informal to even condition the state's eligibility for funding upon compliance therewith. Id. at 13, 19, 20 n.15, 21-22. For that reason, it did not fully consider the Solicitor General's position that a § 1983 right would exist if the law created conditions upon the state's eligibility for grants. Id. at 22.

[46] The Supreme Court recently decided a case presenting that issue. In Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 55 U.S.L.W. 4119, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987), tenants in federally subsidized low-income housing sued their public housing authority, alleging that it overbilled them for their utilities and thereby violated a federal rent ceiling. The ceiling was an express funding condition; if a housing authority violated the standard, the agency could have cut off funds. Id. at 4121. The Fourth Circuit Court of Appeals had ruled that the rent ceiling did not create § 1983 rights because it was "highly unlikely that Congress intended federal courts to make the necessary computations regarding utility allowances that would be required to adjudicate individual claims of right." 771 F.2d 833, 836-37 (4th Cir. 1985). The Fourth Circuit had also reasoned that "the existence of such a right is essentially negatived by the provisions of the annual contributions contract" between the defendants and HUD permitting HUD to sue local authorities which violated the ceiling. Id. at 837-38 n.9.