(concurring in the result).
The complaint in this action was filed as a class action seeking injunctive, declaratory and general relief, because of the defendants’ alleged violation of plaintiff’s rights under the Fourth Amendment, the Eighth Amendment and the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. Jurisdiction is predicated upon 28 U.S.C. Secs. 1331, 1343(3) and (4), and 2201 and 2202, and Title 42 U.S.C. Sec. 1983.
The specific prayer of the complaint is:
1. That a declaratory judgment be issued to the effect that:
(a) The Defendants Vogelsberg and Kirby have failed to comply with the laws of Kentucky and the requirements of the Constitution of the United States in their procedures for the arrest and custody of juveniles.
*1356(b) The named Defendant Robert Turley is not conducting, at the present time, the Juvenile Division of the Madison County Court in accordance with the laws of the State of Kentucky and the requirements of the Constitution of the United States, in particular, the 4th Amendment, the 8th Amendment, and the due process and equal protection clauses of the 14th Amendment thereto.
(c) The Placement of Juveniles in the Madison County Jail by the Defendant Turley, and the retention of those juveniles in the Madison County Jail by the Defendant Douglas violates the laws of the State of Kentucky and the requirements of the Constitution of the United States.
(d) The Fiscal Court of Madison County has failed to provide proper detention facilities for juveniles brought before the Juvenile Division of the Madison County Court in violation of the laws of the State of Kentucky and the requirements of the Constitution of the United States.
2. Grant restraining orders, preliminary and permanent injunctions preventing Defendants, their agents, employees, successors in office and all others acting in concert with them from placing juveniles in the Madison County Jail.
3. Retain jurisdiction of this case.
4. Grant Plaintiffs such other relief as may be equitable and just to this Court.
The class of persons plaintiff seeks to represent is fully set forth in Judge McAllister’s opinion.
It is thus clear that the complaint does not challenge the right of the State of Kentucky to prosecute Duane Cox on the curfew charge, nor does it seek to nullify or enjoin the pending state court prosecution on such charge. Neither does the complaint in any manner seek a declaration that the state court proceeding against the juvenile for the alleged violation of Kentucky law is void.
If the complaint sought to enjoin the state proceeding against the juvenile, which is at least quasi-criminal in character, . it might run counter to the rulings of the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), inasmuch as the state prosecution was pending before the Kentucky Juvenile Court at the time the present action was filed, and was not merely a threatened prosecution.
Consequently, the action is maintainable pursuant to 42 U.S.C. Sec. 1983 before the state prosecution has been completed (a) because the action is not intended as one to enjoin or disrupt the state prosecution, and (b) because the relief sought is essentially to redress the alleged violations of the constitutional rights of the plaintiff and the class he represents, arising from the procedures alleged to-be employed in Madison County, Kentucky, in connection with the arrest, detention and trial of juveniles on criminal charges.
Complaint is made chiefly with respect to three features of the procedures :
(1) That the plaintiff and juveniles similarly situated are arrested and detained for trial for an unreasonable time without receiving the benefit of a probable cause hearing.
(2) The plaintiff and juveniles in the same class are confined in adult jail facilities in Madison County, Kentucky awaiting trial for an unreasonable time under conditions causing cruel and unusual punishment in violation of the Eighth Amendment to the Federal Constitution.
(3) The plaintiff and juveniles in the same class are required to stand trial on criminal charges in said county before lay judges who are neither lawyers nor learned in the law and are thus deprived of both due process of law and the equal protection of the law. The *1357district judge in an able opinion discussed each one of these contentions in detail and held that they were without merit. His rulings, however, were made upon a motion to dismiss the complaint without the benefit of an evidentiary hearing.
Judge McAllister’s opinion makes only passing reference to the use of non-lawyers as juvenile court judges, and I do not construe the opinion to hold that this practice is offensive to any requirement of the federal constitution. Nevertheless, it is clear that Judge Mc-Allister’s opinion, in rather sharp terms at least, adversely criticizes the practice without actually ruling that it is unconstitutional. On this point, since the opinions remands the case to the district court for appropriate findings, I construe it to mean that the issue of non-lawyer juvenile court judges is left open so that the district court on remand will be free to make an independent determination. However, I am not prepared at this time to express an opinion or to join in the implied criticism of the Kentucky practice, in effect in at least certain areas of that state and in general use to a large extent throughout the United States.
It is, of course, well settled that a juvenile, like an adult, is entitled to a probable cause hearing before being arrested and detained on a criminal charge, preferably before incarceration or at least within a reasonable time thereafter. Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971); Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969). While the facts alleged in the complaint would tend to indicate that the juvenile in this case was not accorded a probable cause hearing within a reasonable time, I am of the opinion that no definitive ruling should be made on this point until, on remand, the district court has conducted an evidentiary hearing to determine the circumstances under which the arrest was made and under which the plaintiff was held in confinement. The question of reasonableness should be determined on the basis of the individualized facts of each case. We will be in better position to evaluate the facts in regard to this aspect of the case after the district court has conducted an evidentiary hearing and made appropriate and detailed findings of fact and conclusions of law.
In my view, the opinion of Judge McAllister goes much too far in dealing with cruel and unusual punishment. The opinion may even be read to reflect an outright holding that a juvenile is subjected to cruel and unusual punishment in any case where he is confined in an adult jail facility. I do not agree with this conclusion. The exact nature and circumstances of the confinement of the juvenile in each case must be determined before a court would be in position to say that the juvenile had been subjected to cruel and unusual punishment. The mere fact of confinement in an adult jail facility, particularly in a small county jail like the one in Madison County, Kentucky, is not sufficient in and of itself to warrant a finding of cruel and unusual punishment. I do not agree that there is anything in the present record to justify the inference repetitively indicated in the opinion, that the juvenile was thrown in with the “general prison population,” if there was such a population at the time in this small county jail. We certainly are not warranted in taking judicial notice of any particular condition in the Madison County, Kentucky, jail nor to conclude without proof that the juvenile in this case was required to be exposed to adult or hardened criminals. We simply do not know the conditions of the juvenile’s confinement, and we should not express an opinion until the facts have been established. Most clearly the complaint does not depict the conditions of the youth’s actual confinement in such lurid terms as does the Court’s opinion.
If the opinion is to be taken at face value, it would hold that federal courts have the power, by construing the federal constitution, specifically the Eighth Amendment, to require states to install separate jail facilities or detention cen*1358ters for juveniles throughout their entire systems. I do not believe that we have such authority or that the Eighth Amendment imposes any such requirement. The question of cruel and unusual punishment must be determined on a case by case consideration and on the basis of the actual nature and character of any given confinement. The opinion is replete with references to the horrors of confining juveniles with hardened adult offenders and criminals, even including a reference to a Reader’s Digest article of November, 1973, but the difficulty is that these general citations have no legal or authoritative value whatever and as far as we know at the present time have no relevance to any conditions which prevailed in Madison County, Kentucky, or in connection with plaintiff’s confinement.
The only specific reference in the complaint to cruel and unusual punishment is contained in paragraph #12, which reads as follows:
The Plaintiff Duane Cox is a sixteen year old child who was held in an adult jail facility. There are no medical facilities, recreational or educational facilities in the jail or evaluative programs available to the child. He was not provided physical or psychological treatment programs. Specifically, the Plaintiff Duane Cox was not provided adequate medical examinations or treatment, recreation activities or equipment, soap, towels, education, books, or reading material. In addition, no social services were provided to benefit the child or class member.
This paragraph in my view falls far short of establishing cruel and unusual punishment under the Eighth Amendment and it certainly falls far short of the exacerbated conditions of confinement painted with such a broad brush in the opinion of the Court.
As the complaint was dismissed by the district court on a motion to dismiss without an evidentiary hearing, that court had no occasion to make findings of fact as to the class action issue. On remand, this question will be open and the court should make appropriate findings to indicate whether the action is properly filed as a class action. Following his findings and conclusions, on remand, the district court should then proceed to indicate any relief to which the plaintiff is entitled individually or as the representative of a class, including any injunctive or declaratory relief, or any other form of relief under the general prayer.
Because I am persuaded that the complaint contained sufficient allegations to warrant an evidentiary hearing, I concur in the result reached in Judge Mc-Allister’s opinion.