MILONAS v. WILLIAMS
Former students brought action against private school for youths with behavioral problem for its use of "behavioral-modification program allegedly violative of section 1983 and of the Rehabilitation pct. The United States District Court for hp District of Utah, Bruce S. Jerkins, J., entered judgment, and appeal was taken. 'The Court of Appeals, McWilliams, Circuit Judge held that: (1) plaintiff students' removal from private school did not preclude hem from having standing required for hem to be entitled to represent class of students: (2) owners and operators of private school for youths with behavioral problems sere acting "under color of state law," as squired for former students to be able to ring section 1983 action; (3) record supported finding that the schools use of polygraph machine it: monitoring and censoring of student mail, its use of isolation rooms, and s use of eve physical force violated students' First and Fourteenth Amendment rights; and (4) fact that some parents approved of the "behavioral-modification" program did not compel finding that practices employed were "necessary," as required for them not to violate students' constitutionally protected liberty interests.
Affirmed
1. Federal Civil Procedure 164
Uninjured plaintiff cannot bring suit on behalf of injured class. Fed.Rules Civ.
Proc. Rule 23(ax3), 28 U.S.C.A.; U.S.C.A. Const.Art. 3, § 2, cl. 1.
2 Federal Civil Procedure 187.5
Plaintiff students' removal from private school did not preclude them from
having standing required for them to be entitled to represent class of students
in action against private school for youths with behavioral problems for its use
of "behavioral-modification" program allegedly violative of section
1983 and of Rehabilitation Act Fed.Rules Civ.Proc. Rule 23(a), (b)(4). 28
U.S.C.A.; Rehabilitation Act of 1973, § 5K 29 U.S.C.A. § 794; 42 U.S.C.A_ §
1983; Education of the Handicapped Act, §§ 602-661, 612(2)(B) as amended 20
U.S. C.A.. §§ 1401-1461, 1412(2)(B).
3. Federal Civil Procedure 62 Federal Courts 817
Class certification determination is matter -within sound discretion of trial
court, and its conclusions as to whether class representative has demonstrated
that numerosity, commonality, typicality. and adequacy of representation
requirements have been met will not be disturbed absent showing of abuse of such
discretion. Fed. Rules Civ.Proc. Rule 23(a), 28 U.S.C.A.; U.S.CA.Const.Art. 3,
§ 1 et seq.
4. Federal Civil Procedure 187.5
Named plaintiffs' having tuition at private school funded from sources differing
from those of other student members of class did riot establish lade of-
typicality precluding certification in farmer students' action against private
school for youths with behavioral problems for is use of
behavioral-modification" program allegedly violative of section 1983 and
Rehabilitation Act where all of youths at the school were in danger of being
subjected to the allegedly unlawful "behavior-modification" practices.
Fed.Rules Civ.Proc. Rule 23(a)(1, 3, 3, 4), 28 U.S.C.A.
5. Civil Rights 13.5(2) .
Conduct that constitutes "state action" for Fourteenth Amendment due
process purposes is also action "under color of state Law" for
purposes of section 19$3 civil rights suits. U.S.C.A.Const.Amend. 14; 42 U.S.C.A.
§ 1983. See publication words and Phrases for other judicial constructions and
definitions.
6. Civil Rights 13.5(4)
Owners and operators of private school for youths with behaviors( problems were
acting "under color of state law;" as required for former students to
be able to bring section 1983 action against school for alleged violations of
their civil rights occurring as result of the school's use of
"behavioral-modification" program, where many students were placed at
school involuntarily by juvenile courts and other state agencies. detailed
contracts were drawn up by school administrator and agreed to by local school
districts placing youths at the school, there was significant state funding of
tuition, and there was extensive state regulation of educational program at the
school. 42 U.S.C.A. § 19$11.
7. Prisons 4(5)
Person involuntarily confined by state is institution retains liberty interests
that are protected by due process clause of Fourteenth Amendment: the right to
reasonably safe conditions of confinement; the right to be free from
unreasonable bodily restraints; right to such minimally adequate training as
reasonably way be required by such liberty interests; right to-be free from
censorship of correspondence; and right to privacy of his own thoughts,
U.S.C.A.Const. Amend. 14.
8. Constitutional Law 82(13)
First Amendment rights do not terminate upon institutionalization. U.S.C.A
Const,Amend. L
9. Criminal LAW 1213
The Eighth Amendment's proscription against "cruel sad unusual
punishment" does not apply in situation where involuntarily confined person
has not been adjudicated guilty of any crime. U.S.C.A.Const. Amend. 8.
10. Civil Right 13.13(3)
In former students' action against private school for youths with behavioral
problems for its use of "behavioral-modification" program allegedly
violating section 1983, record supported finding that the school's use of
polygraph machine, its monitoring and censoring of student mail, its use of
isolation rooms, and its use of excessive physical force violated students'
First and Fourteenth Amendment rights. U.S.C.A. Const.Amends. 1, 14; 42 U.S.C.A.
§ 1983.
11. Constitutional Law 255(4)
Children, as well as adults, have substantial liberty interests that are
protected from state action by Fourteenth Amendment, and such liberty interests.
include right not to be confined unnecessarily for medical treatment, and
concomitant with such right is right to be fees of unnecessary restrictions of
other fundamental rights once confined to state institution. U.S.C.A.
Const.Amend. 14.
12. Constitutional Law 255(4)
While judgments of parent are to be considered by court in determining
"necessity" of burdens placed upon 'Wren's fundamental right by state
institutions, parent -cannot authorize state to limit child's liberty without
showing good cause therefore. U.S.C.A. Const.Amend. 14.
13. constitutional Law 278.5(6)
Fact that some parents approved of "behavioral-modification" program
employed by private school for youths 'with behavioral problems did not compel
finding that practices were "necessary,- as required for them not to
violate students' constitutional protected liberty interests. U.S.C.A.
Const.Amend. 14.
14. Judges 49(1)
Trial judge's serving as member of advisory counsel for local chapter of civil
liberties association did not require judge's disqualification from ruling upon
attorney fee application made in section 1983 action in which plaintiffs were
represented by the association. 42 U.S.C.A. § 1988.
15. Civil Rights 13.17
No error occurred in including as party against whom attorney fee award was
entered in section 1983 actor against private school defendant who became part
owner of the school after the action was commenced 42 U.S.C.A. § 1988.
16. Federal Courts 543
Nonsettling party had no standing to appeal consent decree which. did not bind
him nor interfere with legal relationship between nonsettling party and settling
parties Kathryn Collard of Collard, Kuhuhausen, Pixton & Downes, Salt Lake
City. Utah, and Mack I. Soler, San Francisco, Cal. (and Loren M. Warboys and Jan
C. Costello, Juvenile Justice Legal Advocacy Project, San Francisco, Cal., with
them on the brief), for plaintiffs-appellees. Max D. Wheeler, Salt Lake City,
Utah (Harold G. Christensen and Paul C. Droz of Snow, Christensen &
Martineau, Salt Lake City, Utah, with him on the beef), for
defendants-appellants. Kathleen B. Boundy and Geraldine S. Hires. Attys.,
Cambridge, Mass, filed a brief on behalf of the Canter for Law and Educ., amicus
curiae. Before McWILLIAMS and SEYMOUR. Circuit Judges, and BRINKER, District
Judge.
Honorable Clarence A. Brimmer Jr. Chief
Judge. U. S. District Court for the District of
McWILLLAMS, Circuit Judge.
The Provo Canyon School for Boys, located
near Provo, Utah, is a private school for boys between the ages of twelve and
seventeen. Timothy Milonas, Jr., age fifteen, and Kenneth Rice, age sixteen,
then students at the Provo Canyon School, brought the present action against the
owners and operators of the Provo Canyon School. Also named as parties defendant
were various agencies, officers, and employees of the State of Utah.'
The individual plaintiffs, Milonas and Rice, challenged the education, treatment
and conditions of confinement of juvenile boys placed at the Provo Canyon School
and averred that the school administrators acting under color of state law, had
caused the plaintiffs to suffer and to be subjected to cruel and unusual
punishment, anti-therapeutic and inhumane treatment, and denial of due process
of law. Milonas and Rice sought class actions certification and, both
1. Jack L Williams owner and administrative director of the Provo Canyon School
and Robert K Crist. owner and medical director of the Provo Canyon School were
named as parties defendant is the original complaint Filed on September 21.
1978. D. Eugene Thorne became the executive director of the Provo Canyon School
on Aped 1. 1979. and was added as a party defendant as September 11. 1979. Their
defendants are appellants herein.
2. State defendants were: Anthony W. Mitchell Director, of the Utah Department
of Social Services; the Utah Department of Social Services; James P. Wheeler
Director of the Utah Division of Family Services; the Utah Division of Family
Services; John F. McNamara, Director and Administrator of the Interstate Compact
on Juveniles Walter D. Talbot, Superintendent of Public Instruction. Utah State
Board of Education; and the Utah State Board of Education. These defendants were
either dismissed from the lawsuit or entered into consent decrees. Is this
appeal, none of these defendants challenge the district court's disposition of
the matter. .
3. The claim against defendant McNamara the director and Administrator of the
Interstate Compact on Juveniles for the State of Utah was that he had failed to
administer adequately his supervisory responsibilities regarding the placement
of youths in Utah institution. It was McNamara's job to supervise the placement
in Utah of juveniles from other states sent to Utah by juvenile courts and other
welfare agencies. Milonas and Rice alleged that for themselves and the members
of the class, asked for money damages and declaratory story and injunctive
relief pursuant to 42 U.SC. § 1983 (1976). The named plaintiffs also alleged
that they had been denied a free appropriate public education and sought relief
pursuant to the Education for All Handicapped Children Act, 20 U.S.C §§
1401-1461 (1976) and Section 504 of the Rehabilitation Act of 1973, 219 U.S.C.
§ 791 (1976).
Pursuant to Fed.R.Civ.P. 23(a) and (b)(2). the district court provisionally
certified the class. For purposes of the preliminary relief requested, the class
was described as consisting of all juveniles residing at the Provo Canyon School
during the pendency of the civil rights action. At that time, the district court
also entered a preliminary injunction that enjoined four
"behavior-modification" practices then in. effect at the school.
McNamara's negligence had resulted in their placement at the Provo Canyon
School, where they were subjected to abusive treatment During the course of the
proceedings in the district court, the plaintiffs and defendant McNamara entered
into a consent agreement in which defendant McNamara agreed, inter alis, to
request that out-of-state officials hove boys form the Prow Canyon School and
refrain from placing any other juveniles at the school
The claim against defendant Talbot. the superintendent of public instruction for
the State of Utah. and defendant Utah State Board of Education was that each had
failed to provide an adequate free appropriate public education for all
handicapped children is the State of Utah as required by the Education for All
Handicapped children Act. 20 U.S.C, 1412(2)(B) (1976). During the course of the
proceedings in the district court, these defendant also entered into a consent
decree with the plaintiffs. In this consent decree the Utah defendants agreed.
inter alis. that they were subject to the provisions of Sections 504 of the
Rehabilitation Act of 1973, 29 U.S.C. ;
794 (1976). and the Education for All Handicapped Children Act, 20 U.S.C. §
1401-1461 (1976), and the regulations promulgated there under. . to adopt
regulations and procedures to implement these federal laws in the State of Utah
to -monitor institutional compliance
with the new state guides nod to provide a safe and free appropriate public
education to all handicapped children in the State of Utah.
The plaintiffs' claim for money damages was tried to a jury; the district court
reserved for its determination the claims for declaratory and injunctive relief.
At the conclusion of a lengthy trial, the jury returned a verdict in favor of
the defendants on the damages issue. Nonetheless, the trial judge later entered
a permanent injunction as to those four school administrative practices that
were the subject of the preliminary injunction previously entered. For purposes
of this permanent relief, the district court certified a class consisting of all
boys reading at the Provo Canyon School as of the date of the permanent
injunction. and in the future.
The permanent injunction specifically prohibited the defendants from: (1)
opening, reading, monitoring or censoring the boys' mail; (2) administering
polygraph examinations for any purpose whatsoever; (3) placing boys in isolation
facilities for any reason other than to contain a boy who is physically violent;
and (4) using physical force for any purpose other than to restrain a juvenile
who is either physically violent and immediately dangerous to himself or others?
or physically resisting institutional rules.
The district court later found that the plaintiffs were the "prevailing
party" pursuant to 42 U.S.C §1988 (1976) and that they was entitled,
therefore. to an award of attorneys fees The district court filed an exhaustive
memorandum opinion wherein it made findings of fact and conclusions of law. This
opinion was not published.
4. Tuition at the Prow Canyon School is $1,600 per month
However from the date of its inception as an institution in 1973. the Provo
Canyon School has received significant amounts of government
money to sustain its its operations. Many of the boys are placed
at the school by local school districts for special education purposes
School districts in California, Wyoming, Utah. Illinois, North Carolina ,
Alaska, New York, Minnesota, Washington, and Idaho have sent boys to the
faculty. These placement are accomplished through contractual arrangements
between the local school of officials and the Provo Canyon School
administrators. "Funding for the boys' special education from federal and
state treasuries pursuant to the Education for All Handicapped Children
Act and corresponding state special The district court then entered final
judgment and fixed the attorneys' fees at $133,546.54 For a discussion of the
procedural history of this appeal, see Milonas v. Williams 648 F.2d 688 (10th
Cir. 1981).
The Provo Canyon School is privately owned and operated, although it does
receive funds from both state governments and the United States. The school was
established in 1973 for the primary purpose of educating teenage boys whose
problems are so severe that their treatment and education require a restricted,
therapeutic environment. All of the boys admitted to the school have problems of
one sort or another, including physical, psychological, and emotional problems,
and are handicapped by a general inability to conform to normal behavioral
standards. The district court described the school as follows:
The Provo Canyon School is not a school in the traditional ordinary or classic
sense. It does offer classes on a secondary level to its resident population,
and in most instances does a good job in its formal teaching. Provo Canyon
School is also a correctional and detention facility. Students are restricted to
the grounds Students are confined. Some students are locked in and locked up
with varying degrees of personal liberty restored as each progresses through the
institutional program. If a student leaves without permission, he is
hunted down, taken into custody and returned.
Regardless of origin, condition or motivation, once arrived, each person during the beginning phases of the school program was locked in, isolated from the outside world, and whether anti-social, crippled or learning disabled, was subject to mandated physical standing day after day after day to promote "right thinking" and "social conformity." Mail was censored. Visitors were discouraged. Disparaging remarks concerning the institution were prohibited and punished. To "graduate" from confinement to a more liberated phase, one had to "pass" a lie detector test relating to "attitude," "truthfulness and "future conduct." Some failed to pass and remained in confinement for extended periods of time
Students generally are admitted to the
Provo Canyon School at the insistence of one or both of their parents.
Typically, the parents have had extreme disciplinary problems and being unable
to control their child have contacted, the Provo Canyon School as a "last
resort" Other boy are received at the school directly directly from
juvenile courts and probation officers from across the nation. Many of the
youths are placed at the Provo Canyon School by the boy's local school districts,
with tuition funding coming from state and federal agencies pursuant to
state special education laws and the federal Education for All Handicapped
Children Act. Plaintiff Timothy Milonas Jr., had resided in the State of Nevada
prior to being involuntarily committed to the Provo Canyon School by his mother.
Milonas' commitment was a condition of probation imposed by a Nevada juvenile
court. Milonas' father thereafter received a coded letter from his son, which
letter implied that the son needed assistance. Because of that letter, Milonas'
father independently contacted counsel regarding the school and how it was being
run. Kenneth Rice, the other individual plaintiff, had resided in Alaska until
his involuntary commitment to the Provo Canyon School. Rice was placed in the
school pursuant to an order of an Alaska juvenile court. Four months after he
was admitted to the Provo Canyon School, Rice ran away from the school, and,
before he was returned. he made contact with an attorney and complained about
conditions at the school. As a result of the complaints thus made by Milonas and
Rice, the present action was instituted.
Class Certification
Both Milonas and Rice were students at the Provo Canyon School on the date this action was commenced. On the date the complaint was filed, counsel for Milonas and Rice, fearing that the boys would be subject to retaliation by the defendants because of the commencement of the lawsuit, sought and obtained an immediate hearing before the district court. Based on such bearing and a stipulation between the parties, the district court ordered that Milonas and Rice be removed temporarily from the school and placed for the time being with the Utah State Division of Family Services. Each boy sought damages and injunctive relief for himself, and, in addition, they also asked for damages and injunctive relief for a class which they sought to represent. The class, according to the complaint, consisted of "all juveniles who have been, are now, or in the future will be placed at the Provo Canyon School." The district court provisionally granted plaintiffs motion for class certification, and, later, at the conclusion of the trial, such grant was made permanent. The first issue raised by the defendants in this appeal concerns the propriety of class certification. The defendants contend that the district court erred is granting the individual plaintiffs' request for class certification. This particular contention is based on either of two grounds. Fist, the defendants assert that by leaving the Provo Canyon School on the day that the lawsuit was filed, pursuant to the order of court to which reference was made above, Milonas and Rice lost membership in the class that they sought to represent The defendants reason that Milonas and Rice. being "outsiders" at the time of class certification, could not represent those boys "inside" the school. In essence, the defendants aver that the named plaintiffs lacked standing to pursue the lawsuit on behalf of the class members. Second, the defendants assert that the individual claims of Milonas and Rice were not "typical" of the claims of the class members and, therefore, at the time of class certification, Milonas and Rice were merely "officious intermeddlers." Fed.R.Civ.P. 23(a)(3). We are not persuaded by either of these arguments.
(1) It is axiomatic that an uninjured
plaintiff cannot bring suit on behalf of an injured class. U.S.Const. art III,
§. 2, d 1; Worth v. Seldin, 472 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d
343 (1975): Bailey v. Patterson, 369 U.S. 31, 32-.33, 82 S.Ct. 549, 550-551, 7
L.Ed.2d 512 (1962). It is well settled, however, that a named plaintiff may
continue to represent a class that has been certified as such even after the
named plaintiff's personal stake in the outcome of5. the Supreme Court's most
recent pronouncement as this matter appears in United state " Parole Comm'
n v. Geraghty 445 U.S. 388. 398. 100 S.Ct. 1202, 1209. 63 L.Ed.2d 479
(1980). wherein the court noted that. [although one might argue that Sosna
contains at least an implication that the critical factor for Art. III purposes
is the timing of class certification other case, applying a "relation
back" approach, clearly demonstrate that timing is not crucial. When the
claim as the merits is "capable of repetition. yet evading review,"
the named plaintiff Drives the class certification issue despite loss of his
personal stake in the outcome of the litigation E.g., Gerstein . Pugh, 420 the
litigation has been mooted. Soma v. Iowa, 419 US. 393, 399, 95 S.Ct. 553, 657,
42 L.Ed.2d 532 (1975). Furthermore. "[there may be cases in which the
controversy involving the named plaintiffs in such that it becomes moot as to
them before the district court can reasonably be expected to rule on a
certification motion." Id at 402 n.11, 95 S.Ct. 559 n.11. In such
instances, the district court may apply a "relation back" theory and
grant late certification in an otherwise moot case and thereby prevent mootness.
Id; Napier v. Gertude, 542 F.2d 825, 828 (10th Cir 1976), cert. denied, 429 U.S.
1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977). See generally Note, Class Standing
and the Class Representative, 94 Harv.L Rev. 1637 (1961). The key to whether a
particular case falls within that "narrow class of cases in which the
termination of a class representative's claim [prior to class certification]
does not moot the claims of the unnamed members of the class," Gerstein v.
Pugh. 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975), is
whether the claim on its merits is "capable of repetition, yet evading
review." United States Parole Comm'n n v. Geraghty, 445 U.S. 388, 398, 100
S.Ct. 12(12, 1209, 63 L.Ed.2d 479 (1986). Ours is such a case.
[2] . When the present action was instituted, Milonas and Rice were students in
the Provo Canyon School, and as such were members of the class, they sought to
represent. Understandably, the boys were removed from the Provo Canyon School at
the earliest possible date. The district court could not have been expected to
rule on a U.S 103. 110 a.11, 1. 95 S.Ct. e54. 861 x411. 43 L.Ed.2d x
(1975) The "capable of repetition, yet evading review" doctrine to be
sure, was developed outside the class action context . .. but
it has been applied where the named plaintiff does have a personal stake at
the outset of the lawsuit, and where the claim may arise again with
respect to that plaintiff; the litigation then may continue
notwithstanding the cased plaintiff's current. lack of a personal
stake . . .. Since the litigatant faces some likelihood of becoming
involved in the same controversy in the future, vigorous advocacy can be
expected to continue. class certification motion prior to the date of the
boys' removal from the school premises. Also, the district court's order placing
the boys in the care of state officials was temporary in nature and, therefore,
it was possible that the boys would be returned to the school. In our view, the
fact that Milonas and Rice were removed temporarily from the school as a
precautionary measure does not mean that they thereby lost their "personal
stake" in the controversy. And most certainly the controversy itself was
postured in a truly adversary setting. It is our conclusion, therefore, that
Milonas and Rice satisfied the constitutional requirement of presenting a live
case and controversy to the district court on behalf of themselves and the
members of the class. Defendants' "lack of typicality" argument is
based primarily on the fact that Milonas' tuition at the school was funded by
his parents and that Rice's tuition was funded by the State of Alaska, whereas
other students were funded by different financial sources, including federal
special education money. According to counsel, such demonstrates that the
individual claims of Milonas and Rice are not typical of the class's claims. We
disagree.
[3] We note that in addition to Article III standing requirements, Fed.R.Civ.P.
23(a) lists four prerequisites to the certification of a class and the
maintenance of a class action. Upon the failure of the class representative to
meet any one of the prerequisites of the rule, class certification will be
denied. This determination, however, is a matter within the sound discretion of
the trial court and the trial court's conclusions as to whether the class
representative has
6 Fed.R.Civ.P. 23(a) provides that a class action may be maintained only if the
following requirements are met: (1) the class is so numerous that the joinder of
all class members is impracticable; (2) there are questions of law and fact
common to the class; (3) the claims of the representative parties are typical of
the claims of the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
7. Defendants' reliance upon our decision in Albertson's; Inc. v. Amalgamated
Sugar, lnc. 503
demonstrated that. the numerosity. commonality, typicality, and adequacy of
representation requirements have been met "will not be disturbed absent a
showing of abuse of that discretion." Rex v. Owens ex rel State of
Oklahoma, 585 F.2d 432, 436 (10th Cir. 1978).
[4] In determining whether the typicality and commonality requirements have been
fulfilled, either common questions of law or fact presented by the class will be
deemed sufficient. Factual differences in the claims of the class members should
not result in a denial of class certification where common questions of law
exist. Penn v. San Juan Hospital, Me, 578 F2d 1181, 1189 (10th Cir. 1975); Lice
v. Carter. 448