Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. CV S 76-171 -- Allen Sharp, Judge.
Before Pell, Circuit Judge, Fairchild, Senior Circuit Judge, and Cudahy, Circuit Judge.
Appellant Darrell Kincaid seeks declaratory relief and compensatory damages pursuant to 42 U.S.C. § 1983 (1976), for numerous alleged violations of his constitutional rights while he was a pretrial detainee in the custody of appellee Sheriff John Rusk. Kincaid contends, inter alia, that several procedural errors occurred in the course of discovery, that the wrong standards were applied as to certain of the alleged constitutional violations, and that there was an incorrect analysis of Sheriff Rusk's claimed immunity. We affirm the judgment of the district court denying Kincaid's various constitutional claims except with respect to certain claims under the first and fourteenth amendments. As to these latter claims, we reverse the district court's judgment because we find that Kincaid's rights were violated by Sheriff Rusk in enforcing an official policy which arbitrarily barred access by pretrial detainees to reading material other than softbound (paperback) books and magazines. We also reverse with respect to the finding of qualified immunity for Sheriff Rusk in his denial of access to reading material. We award Kincaid nominal damages of one dollar.
Kincaid was confined to the Tippecanoe County, Indiana, jail while awaiting trial on a murder charge from April 2, 1975, to July 3, 1975. On July 3, 1975, Kincaid was convicted of first degree murder and continued to be held in the jail until July 11, 1975. He was then transferred to an Indiana penitentiary. Sheriff John Rusk exercised authority and control over the jail during Kincaid's confinement as a pretrial detainee.
Kincaid filed an amended pro se complaint on April 26, 1977, alleging that Rusk, in both his individual and official capacities, violated Kincaid's first, fourth, fifth, eighth, ninth and fourteenth amendment rights during Kincaid's confinement as a pretrial detainee. The complaint sought $25,000 in compensatory damages, declaratory relief and attorney's fees. After dismissing the claim against Rusk in his individual capacity, the district court appointed counsel to represent Kincaid in a trial of the claims against Rusk in his official capacity as sheriff. Judgment for Rusk on all claims was entered after a bench trial on June 1, 1978. Kincaid thereafter timely filed this appeal pro se, and counsel was again appointed.
After the district court's entry of judgment but before argument in this court, one of the parties notified this court that John Rusk had died on December 24, 1979. On its own motion, the court ordered that Rusk's successor in office, Sheriff Edgar B. Harger, be added as an additional defendant. Although the question had not been briefed by the parties, the court at oral argument raised the question whether Sheriff Rusk's intervening death had mooted the appeal. In a supplemental brief filed pursuant to the court's direction, appellee Harger now urges this court to dismiss Kincaid's appeal as moot arguing, inter alia, that Tippecanoe County has no obligation to pay any damages which might be assessed and that Rusk's successor in office cannot be held liable for Rusk's constitutional torts. We find the mootness argument persuasive only as to Kincaid's claim for declaratory relief.
Federal Rule of Appellate Procedure 43(c)(1) provides:
When a public officer is a party to an appeal or other proceeding in the court of appeals in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party ....*fn1
This rule contemplates the automatic substitution of successors to public officers sued in their official capacity.*fn2 Cf. Bracco v. Lackner, 462 F. Supp. 436, 441 n.2 (N.D.Cal.1978) (successor of state officer sued in official capacity automatically substituted under Fed.R.Civil Pro. 25(d)). See also United States v. Mississippi, 339 F.2d 679 (5th Cir. 1964). Thus, to the extent that Kincaid's suit sought relief from Sheriff Rusk in his official capacity, the court's order substituting Sheriff Harger as defendant was proper.*fn3
Although substitution may be proper under Fed.R.App.Pro. 43(c), appellees correctly point out that substitution is merely a procedural device that does not govern the question of mootness. See 7A C. Wright & A. Miller, Fed.Prac. & Pro. § 1960, at 682-83 (1972). See generally Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 820-22 & n.26 (5th Cir. 1980). Appellees incorrectly argue, however, that because any constitutional deprivations occurred in 1975 before Sheriff Harger assumed office, and since it is unlikely Kincaid will ever return to the jail as a pretrial detainee, there is no justiciable controversy between Kincaid and Sheriff Harger. This contention is inadequate because mootness in this official-capacity suit turns upon the type of relief sought by the complainant.
A demand for present or prospective (declaratory or injunctive) relief imposes a substantial burden on the plaintiff to show survival of the controversy. Thus, when a public official is sued in his official capacity and the official is replaced or succeeded in office during the pendency of the litigation, the burden is on the complainant to establish the need for declaratory or injunctive relief by demonstrating that the successor in office will continue the relevant policies of his predecessor. See Spomer v. Littleton, 414 U.S. 514, 520-23, 94 S. Ct. 685, 688-90, 38 L. Ed. 2d 694 (1974).*fn4 On the other hand, the substitution of public officers in an official-capacity suit seeking compensatory damages does not require the complainant to demonstrate either that the successor will continue his predecessor's policies or that the controversy is capable of repetition yet evading review because the suit is based on alleged past misconduct. Cf. Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978) (prisoner's claim for injunctive relief mooted by his transfer but action for damages not so mooted).
But an official-capacity suit for damages against the successor in office to a public official also involves the difficult question of personal as against governmental liability. Since the successor official is not personally or vicariously liable for the torts of his predecessor, the question remains whether the successor may properly be named as a defendant in a damage action for torts unrelated to him or his administration. The Supreme Court has apparently answered this question in Monell v. Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55, 56 L. Ed. 2d 611 (1978), where the Court noted that "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent ...." Thus, an official-capacity suit directed at a named public officer seeking damages for alleged past misconduct is not mooted when the named officer dies or is succeeded in office because the purpose and effect of such a suit is to recover damages only from the public entity for the actions of its agents.*fn5 Neither the predecessor official nor the successor can become personally liable (nor a judgment collected from them) if suit is brought against them respectively in their official capacities.
Application of these principles suggests that this appeal is not moot. Kincaid's numerous claims involve, for the most part, challenges to official policies and procedures enforced by Sheriff Rusk during Kincaid's confinement as a pretrial detainee.*fn6 If Tippecanoe County could have been named as a defendant, then the substitution of Harger for Rusk is equally appropriate. The action against Rusk, in his official capacity, which is effectively against the county, survives because the county survives. Thus the suit for damages against Rusk in his official capacity is ...