Greenberg, Jack; and Others, 1995, undated - 112 of 114

    ACP L egal D efense Fund
10 C'.lu’ubus Circle 

New Y.-wk, N. V. 10019 
», > B R A R Y

AUG 5  1977 *
UNITED STATES COUNT OF APPEALS

F or the Second Circuit

Nos. 1391 and 1392— September Term, 1976. 

(Argued June 8, 1977 Decided July 29, 1977.)

Docket Nos. 76-7426, 77-7032

R aymond G-. L asky, et al., 

—against—
Appellees,

Sheriff Lawrence Quinlan, et al.,
Appellants.

B e f o r e :
T imbers, Meskill, Circuit Judges, 

and P almieri, District Judge.*

Appeal from orders of the United States District Court 
for the Southern District of New York, Henry F. Werker, 
Judge, holding appellant in contempt for failure to comply 
with consent decree providing for improvement of condi­
tions at Dutchess County jail and awarding appellees’ 
counsel attorney’s fees and costs. 419 F. Supp. 799 (S.D. 
N.Y. 1976).

Vacated and remanded to the District Court with in­
structions to dismiss.

Of the United States District Court for the Southern District of New 
York, sitting by designation.

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Jack P. L evin, Esq., 1 Chase Manhattan Plaza, 
New York, New York 10005, for Appellees.

P eter E. K ehoe, Esq., 37 First Street, Troy, 
New York 12180, for Appellants.

Palmieri, J .

This action was commenced on April 16, 1973 by the 
filing of a pro se class action complaint by five inmates 
at the Dutchess County Jail (the “ jail” ) in Poughkeepsie, 
New York. The complaint sought injunctive and declar­
atory relief, and alleged violations of the inmates’ consti­
tutional rights and violation of 42 U.S.C. § 1983 by Sheriff 
Lawrence M. Quinlan and certain jail personnel. Juris­
diction was invoked under 28 IT.S.C. §§ 1343 and 2201 and 
42 IT.S.C. § 1983.

The District Court appointed counsel to represent the 
inmates, conducted an evidentiary hearing, and made a 
personal inspection of the jail in the company of counsel 
for both sides and a court reporter. Thereafter, at the 
suggestion of the District Court, counsel for both sides 
entered into a stipulation, dated July 25, 1973, providing 
for the implementation of improvements by the Sheriff 
with respect to certain conditions at the jail. The Court 
approved the stipulation by order dated July 30, 1973 and 
added as a further requirement that the Sheriff post a 
new set of rules and regulations consistent with the stip­
ulation and provide each inmate with a copy of it upon 
his admission. The Court stated that as a result of the 
hearing and inspection of the facility it was of the opinion 
that the jail was “a generally acceptable institution in con­
stitutional terms . . . [with] room for improvement in 
certain respects.” The Court determined that in view of 
the stipulation “ there is no need to declare this a class

5086



action, since I can find nothing substantial in a constitu­
tional sense that is likely to be added because of a class 
determination.” The Court dismissed the action upon the 
filing of the stipulation, “ subject to reopening- or the in­
stitution of contempt proceedings in the event of a willful 
failure to comply with the aforesaid order of the Court.”

The stipulation provided for the improvement of condi­
tions in ten general areas. First, it required that pre-trial 
detainees not occupy the same rooms with convicts under 
sentence and that minors not be housed in the same rooms 
with adults. Second, it set forth certain requirements with 
respect to personal hygiene, including the laundering of 
linen, bedding, and institutional clothing and the bathing of 
inmates. Third, it provided for several changes in the ad­
ministration of health services, including the availability 
of medical examinations and treatment, the maintenance 
of records, and the improvement of present health service 
facilities. Fourth, the stipulation set forth certain min­
imum sanitation standards for the jail’s kitchen and food 
service staff and required that these facilities be inspected 
regularly by public health authorities on the same basis as 
restaurants serving the public. The fifth provision re­
quired that the jail’s outdoor exercise and recreational 
area become operational within six months of the Court’s 
approval of the stipulation.

The sixth, seventh and eighth provisions of the stipula­
tion concerned inmate communication, reading materials 
and legal assistance, respectively. With respect to com­
munication, the stipulation provided for notice to inmates 
of any restrictions on correspondence, set forth the basis 
on which incoming mail could be censored and the pro­
cedures to be followed for censored mail, and established 
rules for inmates’ use of telephones. With respect to read­
ing materials, the stipulation set forth the basis on which

5087



reading material could be censored. With respect to legal 
assistance, the stipulation provided that inmates who were 
unable to secure counsel in civil or criminal matters would 
be permitted to consult with other inmates for such pur­
poses.

The ninth provision set forth a series of conditions to be 
observed in the event that an inmate was disciplined by 
way of confinement in a cell apart from other inmates or 
placed on a restricted diet. It further provided for the 
supervision and, if necessary, the medical examination of 
inmates whose physical or mental conditions created a risk 
of their endangering themselves or other inmates or a need 
for requiring protection from other inmates. In addition, 
the Sheriff was required to promulgate and post in a 
prominent place a list of the rules and regulations govern­
ing inmate conduct and the standardized procedures re­
lating to it.

Finally, the tenth provision required that alterations 
and repairs to the physical plant be effectuated to provide 
for adequate lighting, heating, ventilation and plumbing 
facilities. Within thirty days of the approval of the stip­
ulation, the Sheriff was required to submit to the District 
Court a plan for the implementation of the third, fifth and 
tenth provisions of the stipulation.

On December 8, 1975, plaintiffs’ counsel moved for an 
order (1) adjudging Sheriff Quinlan in civil contempt for 
his alleged failure to comply with the Court’s order of 
July 30, 1973, approving the stipulation; (2) compelling 
compliance with that order; and (3) awarding plaintiffs’ 
counsel reasonable attorney’s fees and the costs incurred 
in prosecuting the contempt action. The matter was re­
opened, and a four day hearing on the motion was held 
before Judge Werker of the Southern District of New 
York. In an opinion dated June 21, 1976, Judge Werker

5088



held that Sheriff Quinlan had failed to comply with sub­
stantially all of the provisions of the stipulation in the 
lengthy period following its approval. 419 F. Supp. 799 
(S.D.N.Y. 1976). Although the Court stated that it was 
unnecessary for its adjudication of contempt to find that 
the Sheriff willfully failed to comply, it found that plain­
tiffs had demonstrated such willfulness with respect to 
several provisions of the stipulation. In an order dated 
July 7, 1976, pursuant to this opinion, the Court assessed 
a fine of $500 against the Sheriff, ordered that he pay the 
attorney’s fees and expenses incurred in connection with 
the contempt proceeding, and ordered that he comply with 
the stipulation or submit a plan for compliance within 30 
days or be fined $50 per day thereafter until he filed such 
a plan and it was approved by the Court. After a hearing, 
the Court allowed plaintiffs’ counsel attorney’s fees in the 
amount of $35,000 and disbursements in the amount of 
$9,573.48. Judgment in the amount of $44,573.48 was en­
tered on December 13, 1976, and Sheriff Quinlan filed a 
timely notice of appeal.

Although Sheriff Quinlan has asserted several arguments 
on appeal, the Court need not reach any of the issues raised 
because it has concluded that the judgment of contempt 
must be vacated on the ground that the action is moot. All 
five of the named plaintiffs were no longer in custody in 
the Dutchess County jail at the time the contempt pro­
ceeding was commenced. Since the District Court denied 
class certification in its order approving the stipulation, 
there is no longer any party to this action having an in­
terest in the enforcement of the consent decree. Thus, the 
case is moot and this Court is without jurisdiction. See 
North Carolina v. Rice, 404 U.S. 244, 246 (1971); Ringgold 
v. United States, 553 F.2d 309, 310 (2d Cir. 1977).

In the absence of a class certification, the plaintiffs can­
not prosecute the action on behalf of present inmates of

5089



the Dutchess County jail under the relaxation of the moot­
ness doctrine provided by Sosna v. Iowa, 419 U.S. 393 
(1975). Board of School Commissioners v. Jacobs, 420 U.S. 
128 (1975); Boyd v. Justices of Special Term, Part I, 546 
F.2d 526 (2d Cir. 1976). Moreover, the exception to the 
timely certification requirement established in Gerstein v. 
Pugh, 420 U.S. 103 (1975), for persons who are similarly 
situated to the plaintiffs and have “ a continuing live in­
terest in the issues” is inapplicable. In Gerstein, the Su­
preme Court found that there was no indication in the 
record whether any of the named plaintiffs were still in 
custody awaiting trial at the time the District Court cer­
tified the class. Nevertheless, it held that the case was not 
moot because the controversy was so transitory that moot­
ness might inevitably intervene before the District Court 
could reasonably be expected to certify the class. See also 
Sosna, supra, 419 U.S. at 402 n .ll ;  Boyd, supra, 546 F.2d 
at 527 n.2. While under Gerstein and Sosna a belated cer­
tification may be said to “ relate back” to the filing of the 
complaint, such an argument is unavailable where, as here, 
the District Court expressly denied class certification and 
there was no apjjeal from that determination. Cruz v. 
Hauch, 515 F.2d 322 (5th Cir. 1975), cited by the plain­
tiffs, is distinguishable for the same reason. In Cruz, the 
Court was “unable to find any certification of this pro­
ceeding as a class action” but the parties had treated the 
litigation “ as though the District Court made an appro­
priate certification.”  515 F.2d at 325, n.l.

The plaintiffs contend that Rule 71 of the Federal Rules 
of Civil Procedure provides a basis on which to seek to en­
force the contempt judgment. We disagree. Rule 71 pro­
vides, in pertinent part:

When an order is made in favor of a person who is 
not a party to the action, he may enforce obedience

5090



to the order by the same process as if he were a 
party; . . . .

It seems clear that Bale 71 was intended to assure that 
process be made available to enforce court orders in favor 
of and against persons who are properly affected by them, 
even if they are not parties to the action. 7 J. Moore, 
F ederal P ractice, 1J71.02 (1975). While Buie 71 may 
support a separate action by a present inmate to enforce 
the order obtained by the plaintiffs, it cannot be used by a 
party to enforce an order in an action in which he no 
longer has standing to sue. The cases cited by the plain­
tiffs in this regard are clearly distinguishable since each 
deals with a situation in which a non-party sought to en­
force an order obtained by a party to the action by a 
motion for contempt.

Finally, while it may be argued that the Court itself has 
an interest in assuring that litigants comply with its or­
ders, it is well established that a “civil contempt proceed­
ing is wholly remedial, to serve only the purposes of the 
complaint, not to deter offenses against the public or to 
vindicate the authority of the court.”  United States v. In­
ternational Union, etc., 190 F.2d 865, 873 (D.C. Cir. 1951); 
see also MacNeil v. United States, 236 F.2d 149, 153-54 (1st 
Cir.), cert, denied, 352 TT.S. 912 (1956).

Since there is no individual plaintiff still in custody at 
the Dutchess County jail, no class certification by the Dis­
trict Court, and no basis on which the Court can vindicate 
its own authority in the context of a civil contempt pro­
ceeding, the Court is constrained to conclude that the case 
is moot. Accordingly, the judgment of the District Court is 
vacated and the case remanded to the District Court for 
dismissal. Nothing in this opinion is intended to prejudice 
the reinstitution of these proceedings on behalf of any 
present inmate of the Dutchess County jail.

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