APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 68-959).
Gibbons, Circuit Judge, Markey,*fn* Chief Judge, U.s. Court of Customs and Patent Appeals and Weis, Circuit Judge. Gibbons, Circuit Judge, concurring.
MARKEY, Chief Judge, U. S. Court of Customs and Patent Appeals.
This is an appeal from orders of the district court for the Western District of Pennsylvania, granting the motion of appellee (Commonwealth)*fn1 for relief from a consent judgment and denying standing to appellant (Mayberry). We vacate the orders appealed from and remand for an evidentiary hearing on the Commonwealth's motion for relief from the consent judgment.
Mayberry, then an inmate at the State Correctional Institution at Pittsburgh (Western Penitentiary), filed a civil rights action on July 29, 1966, naming the superintendent of that institution as defendant. Mayberry sought to enjoin confinement of inmates in the basement area of the Behavior Adjustment Unit (BAU) of that institution. That action was converted to a class action, encompassing all persons who were or might in the future be subject to such confinement. On January 18, 1973, a consent judgment was approved by the district court. Mayberry withdrew his claim for damages and confinement of inmates in the BAU was discontinued.
Without notice to the court or to Mayberry (who had been transferred to another institution within the same penal system) confinement in the BAU was reinstituted in December, 1973. The conditions of confinement were modified over those in effect prior to January, 1973. On October 17, 1974, more than ten months after confinement was reinstituted, the Commonwealth moved under Fed. R. Civ. P. 60(b) to vacate-in-part the consent judgment, so as to permit confinement in the BAU, alleging exceptional circumstances in these words:
Experience has indicated conclusively that no effective substitute for such segregated confinement is available under present circumstances at Western, and that as much for the sake of the other residents of the BAU as for the preservation of discipline and order, the use of the area in question on an emergency or crisis basis is an absolute necessity.
The motion also stated that the Governor of Pennsylvania had ordered the basement of the BAU to be closed after a personal visit. That order was put into effect by a memorandum dated January 19, 1972. On December 11, 1973, the Governor rescinded his order and the basement area was reopened.
Mayberry moved to dismiss the motion because he considered it untimely, unsupported, and barred by laches. A conference was held on October 30, 1974 before the district court, with counsel for both parties present. The court ordered that both parties should file briefs and that "thereafter the matter shall be set down for hearing or further argument as is appropriate." Briefs were filed in due course. Without a hearing, the district court granted the Commonwealth's motion by an order dated January 15, 1975. That first order amended the consent judgment to permit confinement in the BAU under the modified conditions then in effect, including numerous specific limitations, among which was the limitation to emergency confinement not to exceed 48 hours in each instance.
In an accompanying opinion the court dismissed Mayberry's arguments regarding timeliness and lack of support on the basis of the court's "residual discretionary power," under Rule 60(b), to accomplish justice by amending a judgment in the light of changed circumstances. After noting that the Governor of the Commonwealth had visited the institution, the court observed:
The experience of the prison officials at Western Penetentiary [sic] since the entering of the consent judgment has demonstrated that there is no effective substitute for such segregated ...