# Plyler v. Evatt > Court of Appeals for the Fourth Circuit · April 27, 1988 · 846 F.2d 208 URL: https://www.frixlaw.com/law-library/cases/8959932 ## Case - **Full name:** Harry PLYLER, (formerly Gary Wayne Nelson) v. Parker EVATT, Commissioner, South Carolina Department of Corrections Members of the South Carolina Board of Corrections - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** April 27, 1988 - **Citations:** 846 F.2d 208; 1988 WL 40344 - **Precedential status:** Published - **Opinion:** Dissent by Phillips - **Judges:** Haynsworth, Phillips, Wilkins - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8959932 ## Opinion text JAMES DICKSON PHILLIPS, Circuit Judge, dissenting: In a matter of this much public importance, it is particularly desirable that our decisions be, if at all possible, unanimous. For that reason I have more than the ordinary regret that I cannot join the majority decision here. I cannot, however, because I believe that under the standards of appellate review that constrain us — and whose integrity, along with the authority of the district courts that they protect, are also of great and ongoing public importance — we cannot properly reverse the district court’s carefully reasoned and supported decision. That decision — that the requested modification of the consent decree by wholly abrogating its double-celling provision was not warranted — seems to me unassailable on the facts of record, the controlling equitable principles and the applicable standards of review. For that reason, I would affirm the district court’s decision to deny the modification and hold the state to compliance (though with the grace period allowed by the district court). I The essential factual and procedural background of this appeal is adequately outlined in the majority opinion. I emphasize a few elements that are particularly relevant to my view that the district court should be affirmed, and that point up the importance of the standards that should govern our review. The first point is that the modification requested, and now ordered by this court, was complete revocation of the critical double-celling provision of the consent decree, not just a modification of the timetable for compliance with that provision. The next point is the centrality and independent nature of the double-celling provision. While that provision was only one among several others with which the SCDC has complied —a point much emphasized by the majority opinion — there is no question that the double-celling provision was among the most critical and important — to both sides. The modification sought was therefore one having the ultimate effect of total abrogation of a fundamental and independent provision of the consent decree, not one dealing only with peripheral matters not central to the bargained agreement. The basis upon which modification was sought by the state defendants was simple in essence: “unanticipated increase in inmate population” over the projections upon which the state relied in entering into the agreement originally. The equitable principles which guide an injunction court’s first instance decision whether to grant such a modification are clear though undoubtedly frequently difficult to apply. Modification may be allowed when, as a threshold matter, “changes either in operative facts or laws ... cast a new light upon the facts or law originally ruled on.” Nelson v. Collins, 659 F.2d 420 (1981), but then only when the change in circumstances has been largely beyond the moving party’s control, was not foreseeable either by the parties or the court, and has put compliance in accordance with the decree beyond effective reach despite a good faith effort by the moving party to comply, id. at 424 , and finally, when, in light of the changed circumstances and its cause and consequences, a balancing of the interests of the opposing parties and the public requires modification in the interests of equity. See United States v. Swift & Co., 286 U.S. 106, 115-19 , 52 S.Ct. 460, 462-64 , 76 L.Ed. 999 (1932). This power to modify derives ultimately from the inherent powers of equity courts and is now directly expressed in Fed.R.Civ. P. 60(b)(5). See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2863. It is a power which, for obvious reasons, is to be exercised cautiously, and only upon a strong showing of *217 near compulsion to grant relief. See Holiday Inns, Inc. v. Holiday Inn, 645 F.2d 239 (4th Cir.1981) (movant must demonstrate “oppression,” citing United States v. Swift & Co., 286 U.S. 106,119 , 52 S.Ct. 460, 464 , 76 L.Ed. 999 (1932)); Humble Oil & Ref. Co. v. American Oil Co., 405 F.2d 803 , 813 (8th Cir.1969) (Blackmun, J.) (“caution, substantial change, unforeseeness, oppressive hardship, and a clear showing are the requirements”). 1 At stake is the finality and stability of judicial decrees confirming solemn agreements between parties. Though in its final balancing process the judicial decision whether to modify is a “discretionary” one, that balancing must necessarily be based upon the factual predicates implicit in the modification standard. These will necessarily include whether substantial change has actually occurred; whether the changes were actually beyond the moving party’s control and were unforeseeable; whether the movant has made a good faith effort at compliance; and the factual nature of the harms threatened to the parties and to the public by granting or denying the requested modification. To the extent any of these predicate facts have been in dispute, they, like all factually disputed issues, must of course be resolved in the first instance by the injunction court. As so resolved, they must then be treated as findings of fact and accorded appellate deference under the clearly erroneous standard of Fed.R.Civ.P. 52(a). For though findings of fact may not be specifically required in conjunction with motions to modify, see Fed.R.Civ.P. 56(a), there is obviously no reason to treat findings actually made on such a motion differently for this purpose from those found on the much less critical motions for preliminary injunctive relief, as to which findings are specifically required and protected by the clearly erroneous standard under Rule 52(a). The courts, including this one, have so treated them. See Holiday Inns, Inc., 645 F.2d at 242 ; id. at 247 (dissenting opinion); Ruiz v. Lynaugh, 811 F.2d 856, 861-62 (5th Cir.1987); and see generally 9 Wright & Miller, Federal Practice and Procedure: Civil § 2575, p. 694 (findings per Rule 52(a) “desirable and ought to be made” “whenever decision of a matter requires the court to resolve conflicting versions of the facts”). The point of all this is that to the extent the district court’s ultimate “discretionary” decision to deny modification here was based upon factual predicates established, on conflicting evidence, by the fact-finding process, we owe those underlying findings the deference generally owed judicial fact findings on the merits, and for the same reasons. See Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 , 105 S.Ct. *218 1504, 1511 , 84 L.Ed.2d 518 (1984) (deference based both on superiority of district court’s vantage point and on need to avoid duplication of fact-finding process at appellate level). And this, in turn, means that in assessing whether the ultimate discretionary decision to deny modification here was an abuse of discretion we must assess that decision in light of the district court’s factual predicates, unless we can reject those predicates as clearly erroneous. That is to say, we may no more disregard critical fact findings in this context than in any other in which they provide the factual predicates for ultimate decisions — whether of law, fact, or discretion. Cf Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986) (decision whether to impose Rule 11 sanctions is composite of discretionary, fact-finding and legal rulings, and must be reviewed accordingly). II Reviewed on this basis, the district court’s ultimate decision to deny the requested modification should be affirmed. Its critical factual predicates, either undisputed or as found on conflicting evidence, are not clearly erroneous. If, as is proper, those predicates are accepted, the court’s ultimate decision to deny modification cannot properly be rejected as an abuse of discretion; in fact it reflects an eminently sound exercise of discretion. A helpful way to demonstrate this is by focussing on the factual predicates upon which the district court largely rested its decision, but which are either disregarded, discounted, or supplanted with conflicting findings by this court sitting in review. Take first the critical question whether the state defendants had sought in good faith to achieve compliance with the double-celling provision, and the closely related question whether the changes urged as cause for modification were beyond these defendants’ effective control. The district court found that “most, if not all, of the increases in population” were within the defendants’ control. 2 In support, the court properly pointed to irrefutable evidence that despite specific warnings by state officials of the adverse effect on the state’s ability to comply with the decree, the state legislature nevertheless had enacted legislation that directly increased the inmate population beyond the level that uncontrollable factors would have produced. The court also pointed to policy changes by the state Parole Board that had the same effect. On the intertwined question of the state defendant’s good faith effort to comply, the district court pointed to the stark fact that the defendants had knowingly, and without any explanation, baldly violated the decree by constructing double-occupancy cells smaller than the decree required. No more than the reference was required to support the district court’s obvious skepticism about the quality of the defendant's effort. 3 Take next the question whether the change upon which defendants relied — the *219 increase in inmate population — was both substantial and unforeseen at the time the consent decree was entered. The district court of course recognized that increases amounting to “changes in the operative facts” had occurred, and at least implicitly found that they were substantial enough to warrant consideration. 4 But the court rightly questioned whether, as a factual matter, they were actually unforeseen by all involved — in particular, by the state defendants. This is completely supported by the fact that the decree itself expressly recognized that the inmate population projections might be on the low side. From this it was fairly inferable that in undertaking the decree’s obligations the state defendants knowingly accepted the resulting risks that planning and budgetary adjustments might later be required to reach compliance; that is, that the changes were not only not unforeseen but expressly contemplated. Turn to the critical question of the nature and degree of harms threatened to the interests of the parties and the public. As to the plaintiffs, the district court found that to permit the double-celling requested would pose substantial risks of increased violence and other harms resulting from the crowding of facilities that this would permit. Specifically, the court found that to permit the requested double-celling would result in a prison with a design capacity for 504 inmates being permitted to house over 1,000. And, relying directly on the testimony of Deputy Commissioner Ca-toe, the court found that this in turn would result in numerous problems of prison management, including increased threats of violence, a lack of sufficient jobs for inmates, and inadequate general facilities, service and programs. 5 Finally, in assessing the threat of harm to the interests of the state defendants and the public if modification were not granted, the district court appropriately measured this by considering the impact of forced compliance through the early release of 700 inmates over a four-month period. In this connection, the court found specifically that under various early release mechanisms expressly provided by the state legislature, 6,883 inmates had already been released between September 1983 and August 1987, and that of these only 90, or 1.3%, had been returned to prison for commission of violent crimes. Relying on this data and the testimony and findings of fact by Allen Breed, the mediator provided for in the consent decree, the court concluded that the overall recidivism rate for inmates *220 given early release pursuant to state law was actually less than that of inmates released in regular course through the parole process. On that basis, the court concluded that ordering a specific early release of 700 of those inmates generally qualified under extant state law would pose no substantial threat to the public safety, the interest primarily asserted by defendants. 6 As indicated, all of these critical findings are either disregarded, discounted, or rejected outright by the majority in reversing the district court’s order. Concededly, there is evidence in the record which, if accepted, would support some of the conflicting findings either explicitly or implicitly adopted by the majority in its analysis of the evidence. But if we are faithful to our highly deferential review function in such matters, we cannot reject findings simply because we disagree with them and can find support in the evidence for our disagreement. We cannot properly reject any but clearly erroneous findings, and “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574 , 105 S.Ct. at 1511 . Indeed we may not properly reject any “account of the evidence that is plausible in light of the record viewed in its entirety,” id., and the mere fact that the critical findings here on the questions of good faith, foreseeability, and threatened harms are ultimate, evaluative findings based upon inference rather than raw, historical findings based on direct evidence does not diminish the deference we are directed to give them. Pullman-Standard v. Swint, 456 U.S. 273, 287 , 102 S.Ct. 1781, 1789 , 72 L.Ed.2d 66 (1982). Here, with all respect, I do not see how we could say of the critical findings above summarized that they were not, at a minimum, “plausible accounts of the evidence,” or at least one of the “permissible views of the evidence.” Accordingly, I would consider this court bound by them; and being so bound, would conclude that the district court was well within its discretion in denying, on their basis, the requested modification. I would therefore affirm its order designed to bring the defendants into compliance with the original decree within the grace period provided. Ill This is a hard case. The problem presented for the state by the rigor of the double-celling restrictions and the increase in inmate population is real and substantial. But so are the problems presented by allowing the state on the record in this case to be wholly relieved of an obligation solemnly undertaken by its highest executive officials and specifically endorsed by its legislature. The district court, which had lived intimately with the problem over a long period of time, was satisfied after a scrupulously fair evidentiary airing that the state had not established its entitlement to the drastic relief it sought. I *221 believe that the district court correctly applied the appropriate equitable principles to the critical facts it quite properly had found in reaching that decision. I think we err and send dangerous signals about the integrity of this sort of institutional consent decree and the fact-finding and discretionary authority of our base-line courts when we decline to affirm that decision. A major concern in considering motions to modify injunctive decrees, whether consensual or court-imposed, is that the procedure not be used to re-examine the basis of the original decree rather than the equity of its modification. Care must be taken not to “impeach” the injunction “in its application to the conditions that existed at its making” while ostensibly considering whether to modify it because the conditions have changed; courts may not properly “reverse under the guise of readjusting.” United States v. Swift & Co., 286 U.S. 106, 119 , 52 S.Ct. 460, 464 , 76 L.Ed. 999 (1932) (Cardozo, J.). Yet I fear that this is essentially what has now been done here. The state has not hesitated both in the district court and here to suggest, while primarily pressing the legally appropriate changed circumstances theory, that the real cause of its problem is the improvidence of those of its former officials who under a previous administration made the original undertaking. We were told on oral argument by counsel for the state that the projections at that time were “incompetent” and were due to “inadvertence.” This is obviously not an argument that a judicially approved undertaking, fair and sound in its inception has been made “oppressive” by unforeseeable and uncontrollable extrinsic developments, but that the original undertaking was not soundly based, and should on that basis be “impeached” or nullified. Such a theory obviously could not be accepted as the specific basis for equitable relief from such consent decrees. The effect would be to make judicially approved institutional undertakings by one generation of state officials always subject to possible nullification by the second-guessing of their successors. The district court was obviously aware of this subsidiary argument and rightly gave it no credence. While the majority here does not give this as a basis for its decision, the remedy it gives is perfectly compatible with that theory. For the remedy is utterly to abrogate the specific consensual obligation of the state respecting double-celling, thereby relegating the inmate-plaintiffs to unproven and possibly unprovable constitutional overcrowding claims. By this draconian remedy the majority has effectively treated the undertaking as a nullity from its inception, not as one whose unforeseen rigors might be adjusted on some equitable basis while retaining its essence. Cf Ruiz v. Lynaugh, 811 F.2d at 862-63 (distinguishing impermissible “modification” which completely vitiates “original obligations” from permissible one which merely alters duties under original decree). By this means the state’s gamble in violating its solemn obligation has been vindicated, and that, I submit, is not the sort of equity at which the injunction modification principles are aimed. I therefore respectfully dissent. . The majority suggests that in "institutional reform” consent decree cases of this type, a more flexible approach to modification than that espoused in United States v. Swift & Co. for the run of cases is warranted, and rightly points out that in Holiday Inns, a purely private party action, I myself urged, in dissent, a more flexible approach to modification than that taken in that case by the majority in reliance upon the Swift & Co. standards. For the proposition that a more flexible standard in general is warranted in the instant type case, the majority cites principally to Ruiz v. Lynaugh, 811 F.2d 856, 860-61 (5th Cir.1987), which had recognized, without adopting, such an approach in New York State Assoc, for Retarded Children, Inc. v. Carey, 706 F.2d 956, 970 (2d Cir.1983). A study of these decisions, and indeed of our own decision in Nelson v. Collins, 659 F.2d 420 (4th Cir.1981) (en banc), whose authority I of course recognize, reveals that to the extent they espouse greater flexibility as a general proposition in this type case, it is only as a matter of degree that undoubtedly reflects the need to pay particularly close attention to the heightened public interest inherent in such cases. Ruiz , for example, recognized that those courts espousing in general a more flexible approach "still adher[ed] to the Swift principles that a modification should not vitiate the decree,” 811 F.2d at 861 . And New York State Assoc.'s greater flexibility involved only relaxing the requirement that the changed circumstances be "unforeseen,” with the movant still required to show change and a good faith effort to comply in order to secure a modification limited to alteration of duties under the original obligations without completely vitiating them. 706 F.2d at 969-70 . I completely agree that even under the Swift principles, rightly understood, such a degree of flexibility is appropriate in the ultimate balancing process required in deciding whether modification of such decrees is warranted. My analysis of the district court’s decisional process here assumes that such "flexibility” necessarily existed. . In assessing whether the changes were beyond the power of the moving party to control, the court rightly looked to the power of the state as a whole rather than just the state Department of Corrections and its commissioners as the nominal moving parties. The Department of Corrections obviously could not in equity be allowed to assert that only its unaided power to comply should be taken into account. Aside from the fact that its party status is obviously that of an . "arm of the state," the state legislature had both ’ authorized and then endorsed the consent decree which was effectively negotiated by officials of the state Attorney General’s Department. The decree is therefore one to which the state itself is fully bound in law and equity as well as consensually, with all that implies for funding by the legislative branch and implementation by the executive. . Significantly, the majority can only observe of this remarkable conduct that it "has never been satisfactorily explained.” Slip op. 210, n. 2. That is certainly the case, but it hardly addresses the serious legal problem thereby raised. As moving party, the state had the burden to establish its good faith effort at compliance as one of the essential predicates for modification. Its failure even to attempt explanation of conduct that so obviously draws its good faith in question certainly supports the minimal inference that the true explanation would not have been helpful. Whatever the undisclosed basis for the conduct, its effect was to present the court with an awkward fait accompli that made compliance now more costly than it need have been. Surely equity would not be served by weighing this fait accompli in the state’s favor, whatever it says about good faith. *219 The majority finds in the general excellence of the new facilities being constructed and in the overall sums being expended to upgrade the whole correctional system the good faith efforts that the district court rightly questioned. Without questioning the facts on which the majority relies, they are, with all respect, largely irrelevant to the specific question whether there has been a good faith effort to comply with the double-celling provision. And without minimizing the overall financial burden being borne by the state in upgrading the whole system, it must in fairness be noted that this has to be ascribed in major part to the constitutional compulsion to do so that undoubtedly underlay the state’s original entry into the consent decree. . Later developments, not fully before the district court, may raise a question about the sub-stantiality of the "change” over the longer haul. On oral argument we were given a party stipulation which revealed that in 1987 the monthly average increases in inmate population had significantly dropped from the 1985 and 1986 levels upon which the defendants heavily relied. In 1985 the figure was 74; in 1986 it had peaked at 84. But in 1987, it dropped to 59, just 9 above the originally projected figure of 50 per month. It appears that the state may well have been released from an obligation not nearly as onerous over time as the short-term figures suggested. . The majority essentially rejects this factual determination of the district court by substituting its own assessment which discounts the threat of increased violence and management problems from increased crowding. There is undoubtedly evidence in the record to support the majority's conflicting factual assessment. There had not to date been any appreciable increase in violence in the affected facilities, and some prison officials gave the opinion, at odds with Commissioner Catoe’s, that even with the greater inmate populations resulting from double-celling, the facilities would be adequate to provide general services and programs. While the majority’s view is undoubtedly a permissible one on the conflicting evidence, so is the district court’s, and in such a situation, we have been directly admonished to defer to the fact-finding court's assessment. See Anderson, 470 U.S. at 574 , 105 S.Ct. at 1511 . . Here again, the majority essentially rejects this factual determination of the district court— probably the most critical in the balance of interests — by substituting its own conflicting assessment of a much greater threat to public safety and internal order from the early releases required to bring the state into compliance. The district court had, however, carefully assessed the data, heard the testimony, and responsibly considered the actual threat posed. Critical to that assessment were the fundamental facts that the 700 inmates to be released would come from the group generally qualified under extant state law for consideration; that they would be released at intervals over time and not all at once en masse; and that they would in any event all be released in normal course in a relatively short additional time. While the majority does not of course directly reject these irrefutable facts of the matter, its assessment seems basically to accept the specter raised by the state of a sudden release of 700 potentially violent inmates who otherwise would remain incarcerated indefinitely. This is based in large part on the state's unsupported assertion that the conceded effectiveness and safety of the early release program has now been compromised by a reduction of the number of eligible inmates who can be released "with a relative degree of safety to the public." This in turn is based upon the fact that of the 880 inmates statutorily eligible for early release consideration, 693 recently have been reclassified by the current administration as “high risk” or as posing a 44.7% failure rate. The problem with this is that there is no evidence that these “high risk” inmates in the statutorily approved pool are any different in risk terms from those being “safely” released before the new risk assessment program. The majority simply accepts the state’s estimate, rather than the district court's. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8959932. Public record. Not legal advice.