(concurring).
The case comes before this court on a review of the district court’s dismissal of the plaintiffs’ complaint. Though I recognize that the matter was treated by the district judge as if it were before the court on the merits, I believe that such treatment was not warranted given the preliminary nature of the proceedings and the minimal information before the court. Only two questions should be considered at this point — whether the case presents a “substantial federal question” (which of necessity requires some inquiry into the merits) and whether the plaintiffs have standing to raise the claim.
The plaintiffs make no claim that section 702-2 is unconstitutional on its face. Briefly, that section allows courts to characterize as “delinquent” not only minors who have violated federal or state laws or municipal ordinances, but also minors who have “violated a lawful court order made under this Act.” Plaintiffs attack the latter provision, *1242section 702-2(b), insofar as it is applied to so-called “chronic” runaways who have previously been adjudicated “Minors in Need of Supervision” and who are then under court order not to repeat their offense. This application is claimed to be constitutionally deficient in two respects. It permits courts to label as “delinquent” behavior which is essentially non-criminal, and it allows for assignment of runaways to state “training schools,” a punishment which is alleged to be far more severe than their offense warrants.
I agree with the majority that the application of the “delinquent” status to these minors presents no issues of constitutional magnitude. However, I do find substance to the plaintiffs’ eighth amendment claims. Plaintiffs appear to be making two kinds of eighth amendment claims, one that relates to specific conditions within training schools that are objectively “inhumane” as imposed on any inmate, and one that focuses on those conditions which are “inhumane” only as imposed upon runaways. In the former category, the complaint charges:
. that these institutions have male and female guards, cell walls around the institution, frequent homosexual attacks, extreme and degrading disciplinary measures used by the administrators. .
Plaintiffs’ standing to raise these claims is not diminished by the fact that they may rightfully be made by any inmate.
The second claim mirrors the argument made in Robinson v. California, 370 U.S. 660, 676, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1971). It requires evaluating the conditions typically found in training schools and determining whether they are appropriate in their application to runaways. A variety of considerations enter into a judgment of “appropriateness” including a comparison with the treatment actually given other kinds of offenders. Plaintiffs’ claim, however, is distinguishable from a per se position that finds a constitutional deficiency whenever treatment of runaways and other criminals is identical. As an eighth amendment challenge, it requires that courts analyze the kind of correctional treatment training school incarceration entails, compare the offense categories to which that treatment has been applied, and determine whether or not it is “appropriate” to the class before the court.
While the latter claim is only vaguely articulated, I do not find that this by itself warrants dismissal. Rather, I would base dismissal on the grounds of ripeness. Plaintiffs’ claim that they are threatened with immediate delinquency proceedings is insufficient since a judgment of delinquency does not automatically require assignment to a training school. Section 705-2 provides at least two other remedial alternatives. I would find otherwise only if the plaintiffs claimed that all runaways who are held to be delinquents are sent to training schools. In that case, the threat of bringing delinquency petitions is tantamount to a threat of assigning minors to training schools.
Plaintiffs vaguely suggest that delinquency proceedings are instituted principally so that runaways may be sent to training schools. They allege that assignment to training schools is the “very probable outcome” of a delinquency petition. However, they make no specific allegations to buttress these claims.
Accordingly, I would dismiss the complaint without prejudice.