Petition for Writ of Certiorari — Rowland v. Thompson

. oa eT oo va

90-14 3

si MAR 14 1991

No.

' DEFIGE QF THE CLERK

IN THE SUPREME COURT

OF THE iy

UNITED STATES

OCTOBER TERM, 1990

JAMES ROWLAND, DIRECTOR,

CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vv.

MAURICE S. THOMPSON, et al.,

_ Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL E. LUNGREN,

Attorney General of the

State of California

GEORGE H. WILLIAMSON,

Chief Assistant Attorney General

PAUL D. GIFFORD,

Deputy Attorney General

JOHN G. DONHOFF, JR.,

Deputy Attorney General

{Counsel of Record]

455 Golden Gate Ave., Suite 6200

San Francisco, California 94102

Telephone No: (415) 557-0674

Attorneys for Petitioners

QUESTIONS PRESENTED

I. | Whether state prison officials are entitled to the

dissolution of a nine-year old remedial decree governing

prison conditions for condemned inmates under the

standards recently announced in Oklahoma City Public

Schools [Etc.] v. Dowell, _US._, 111 S.Ct. 630 (1991),

for dissolving a school desegregation remedial decree?

Il. Whether the Eleventh Amendment to _ the

Constitution of the United States should bar the

enforcement of a state prison conditions remedial decree

that does not spring from, address or relate to a violation

of federal law?

Ill. Whether the deference due prison officials on

questions of prison operations and security should require

modification of a prison conditions remedial decree as

proposed by state prison officials, where the proposed

modifications comport with constitutional requirements?

IV. Whether district court orders that require the parties

to negotiate a settlement or which interpret a remedial

decree to apply to certain prison facilities and direct a

special master to investigate compliance constitute

appealable orders, such that failure to appeai precludes

appellate review?

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LIST OF PARTIES

The parties to the proceedings below were

petitioners, James Rowland, the Director of the California

Department of Corrections (former Director, Jiro

Enomoto), and Daniel Vasquez, the Warden of San

Quentin State Prison (former Warden, George Sumner).

Respondents here and below are male inmates condemned

to death under California law and housed in security

housing facilities at San Quentin. The named inmates, who

sued on behalf of themselves and all others similarly

situated, are Maurice S. Thcwpson, Charles A. Green,

John Gzikowski, Keith D. Williams, Ronald E. Lanphear,

Chol Sco Lee and Andrew E. Robertson.

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TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

A. The District Court Order

B.

The Decision of the Court of Appeals

REASONS FOR GRANTING THE WRIT

I.

Il.

THE COURT OF APPEALS’ DECISION

CONFLICTS IN PRINCIPLE WITH THIS

COURT'S DECISION IN OKLAHOMA CITY

PUBLIC SCHOOLS V. DOWELL, BECAUSE

THE INMATES’ CONDITIONS OF

CONFINEMENT ARE CONSTITUTIONAL

AND WILL REMAIN SO.

THE COURT OF APPEALS’ DECISION

CONFLICTS WITH OTHER APPELLATE

DECISIONS, AND IN PRINCIPLE WITH

THIS COURT'S DECISION IN PENNHURST

STATE SCHOOL & HOSPITAL V.

HALDERMAN, BECAUSE THE DECREE

DOES NOTHING TO ENFORCE FEDERAL

LAW.

15

III.

ii

THE COURT OF APPEALS’ AFFIRMANCE

OF DECREE MODIFICATIONS WHICH

EXCEED CONSTITUTIONAL

REQUIREMENTS CONFLICTS WITH THIS

COURT'S DECISIONS RESPECTING THE

DEFERENCE DUE PRISON OFFICIALS IN

OPERATIONAL MATTERS.

THE COURT OF APPEALS’ DECISION

CONFLICTS WITH ANOTHER COURT OF

APPEALS’ DECISION ON WHETHER

CERTAIN POST-JUDGMENT ORDERS ARE

APPEALABLE.

CONCLUSION

29

30

TABLE OF AUTHORITIES

Cases

Bodgley v. Santacroce °

853 F.2d 50 (2d Cir. 1988)

Bell v. Wolfish

441 US. 520 (1979)

Board of Education Of Oklahoma City

Public Schools v. Dowell

_ US._, 111 S.Ct. 630 (1991)

Coopers & Lybrand v. Livesay

437 U.S. 463 (1978)

Duran v. Carnuthers

885 F.2d 1485 (10th Cir. 1989)

Ex Parte Yi

208 U.S. 213 £1908)

Firefighters Local Union No. 1784 v. Stotts

467 U.S. 501 (1984)

Firefighters Local No. 93 v. City

of Cleveland

478 U.S. 501 (1986)

Hewitt v. Helms

459 U.S. 460 (1983) 10,

Hudson v. Palmer

468 U.S. 517 (1984)

Hutto v. Finn

437 US. 678 (1978)

Kentucky Department of Corrections v.

na

_ US. __, 104 L.Ed.2d 506 (1989)

Kozlowski v. Ci

Page

22, 23

29

23, 24

18, 21

25

16

20

871 F.2d 241 (2d Cir. 1989) 18, 23, 24

Lelsz v. Kavanagh

807 F.2d 1243, reh’g den.,

815 F.2d 1034 (Sth h Cir.)

cert. dism’d., 1

Mathews v. ane

424 U.S. 319 (1976)

Milliken v. as

433 U.S. 267 (1977)

nig jy —

4129 US 74 (

(1987)

23, 24

New York a v. Carey

706 F.2d 956 (2d Cir. 1983)

Newman v. Graddick

740 F.2d 1513 (1ith Cir. 1984)

Pasadena Of Educ. v. Spangler

427 US. 58 A976)

Pennhurst State School & Hospital

v. Halderman

465 U.S. 89 (1984)

Peterkin v. Jeffes

855 F.2d 1021 (3rd Cir. 1988)

Peterkin v. —

661 F.Supp. 895 eeu Pa. 1987)

Philadelphia Welfare ee v. Shapp

602 F.2d 1114, 1120 (3d Cir. 1979),

cert. den. 444 U.S. 1026 (1980)

Plyler v. Evatt

F.2d 208 (4th Cir. 1988)

Procunier v. Martinez

416 U.S. 396 (1974)

Ramirez v. Rivera-Dueno

861 F.2d 328 (1st Cir. 1988)

12, 18, 22-25

10, 17-18

17, 27

26

29

Rhodes v. Cha n

452 US. 337 (1981) 17, 18

Rowland v. U.S. Dist. Court

For N.D. of Cal.

849 F.2d (9th Cir. 1988) 30

Ruiz v. L

811 F.2d 856 (Sth Cir. 1987) 28

Swann v. Charlotte-Mecklenberg Bd.

402 US US. 1 (1971) 28

ys Federation No. 91 Ry. Employees’

366 US. OS (1961) 21

Thompson v. Enomoto

915 F.2d 1383 (9th Cir. 1990) passim

on v. Enomoto

He .2d 1323 (9th Cir. 1987) 5

on v. Enomoto

sa . Supp. 768, (N.D. Cal. 1982). 2, 4

Toussaint v. “ye

801 F.2d 1080 (9th Cir. 1986) 9, 10, 17, 21

Toussaint v. McCart r

597 F.Supp. 1388 (N.D.Cal 1984) 9, 27

urner v. Sefl fa

482 U.S. 78 (1987) 16, 25, 27

Twelve John Does v. District of Columbia

861 F.2d 295 (D.C. Cir. 1988 28

United States v. Swift & Co.

286 U.S. 106 (1932 7, 16, 28

Washington v. Penwell

700 F.2d 570 (9th Cir. 1983) 23, 25

Whitley v. Albers

475 U.S. 312 (1986)

Wright v. Rushen

642 F.2d 1129 (9th Cir. 1981)

Youngberg v. Romeo

457 U.S. 307 (1982)

Constitutional Provisions

Constitution of the United States

Eighth Amendment

Eleventh Amendment

Fourteenth Amendment

Statutes

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 1292(a)(1)

42 U.S.C. § 1983

Other Authorities

Correctional Law Reporter, Vol. I, No. 5

Constitution:

Judicial Legitimacy

Fletcher, The Discretiona

Institutional Remedies a

91 Yale LJ. 635 (1982)

Management of Death Row Inmates

American Correctional Assoc. (1988)

Note, The Modification of Consent Decrees in

Institutional Reform Cases

99 Harv. L.R. 1020 (1986)

17, 27

14

10

13

Petitioners, James Rowland, Director of the

California Department of Corrections, and Daniel

Vasquez, Warden of San Quentin State Prison, pray that

a Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Ninth Circuit

entered in these proceedings on October 4, 1990.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 915 F.2d 1383, and is reproduced in

the separate appendix. App. at 1-20. Four unpublished

orders of the district court from which petitioners

appealed are also reproduced: Order of October 5, 1989,

(including the Fourth Report of the Monitor), App. at 31-

105; Order of December 18, 1986, App. at 106-107; Order

of January 17, 1987, App. at 108-118; and, Order(s) of

March 25, 1985, App. at 119-126.

JURISDICTION

On October 27, 1989, a motions panel of the court

of appeals granted petitioners’ emergency application for

a stay pending appeal. App. at 24. The court of appeals

entered judgment on October 4, 1990, and denied

rehearing and suggestion for rehearing en banc on January

8, 1991. App. at 23. This petition is timely filed within

ninety days. The stay remains in effect by order of the

court of appeals pursuant to Federal Rules of Appellate

Procedure 41. App. at 27 and 30.

This Court has jurisdiction to review the judgment

under 28 U.S.C. §1254(1)+/

STATUTES INVOLVED

The statutes involved are 42 U.S.C. $1983 and 28

1. On February 19, 1991, this Court granted Certiorari in two

cases which present questions substantially related to or fairly

included within the instant Questions I, II and II, in Vose v. Inmates

of Suffolk County Jail, No. 90-1004, and Rufo v. Inmates of Suffolk

County Jail, No. 90-954.

2

US.C. §§ 1291 and 1292(a)(1). They are reproduced in

the appendix. App. at 127-128.

STATEMENT OF THE CASE

This case concerns whether prison officials must

continue to operate California’s condemned row for men

in San Quentin State Prison according to the detailed

provisions of a federal court consent decree entered in

October, 1980. When entered, the decree addressed

conditions in a unique 68-cell facility where all the

condemned inmates were then housed. App. at 54. At the

time there were 44 condemned row inmates, seven of

whom were named plaintiffs. There were no findings of

liability and the decree recited that its entry was not an

admission of a violation of law. Moreover, the decree

provided that the case was to be dismissed in its entirety

at the end of one year if the petitioners complied with the

decree. Even though full compliance in the original

facility was achieved by no later than April 1982, because

the condemned population had by then outgrown the row,

rather than dismiss the case as the decree required, in

June 1982, the district court ordered the parties to

negotiate modifications to the decree to encompass

another, structurally different, facility. Thompson v.

Enomoto, 542 F. Supp. 768, 770 (N.D. Cal. 1982). No

inmate class, however, had been certified.

From time to time over the next eight years,

petitioners and the inmates tried without success to

negotiate a new decree governing conditions in the

facilities which came to house most of the inmates, which

today number nearly 300. Failure to reach agreement,

however, did not mean petitioners disregarded either the

decree or their other legal obligations. They continued to

comply with the decree in the original unit, a record of

compliance virtually unbroken from April 1982, to the

present. Compliance with some of the decree’s provisions

in the other facilities, however, was rendered impossible by

3

the structural differences between them and the original

unit. This chiefly concerned the provision for indoor-out-

of-cell recreation time, or "tier-time." The single-tiered

original unit ("North Segregation") was laid out in a way

that allowed inmates to be released from their cells to

mingle on the tier, play ping-pong and table games, and

use exercise equipment. The other facilitics where the

ever-increasing condemned population have been housed

— Carson Section and, since 1988, East Block - are five-

tier 500-cell units with narrow walkways in front of the

cells on the top four tiers and staff offices on the bottom

tier. Those facilities are unsuitable for indoor inmate

recreation. Petitioners, after due consideration and in

their professional judgment, also determined a few other

decree provisions to be unnecessary, too burdensome, or

potentially dangerous in Carson Section and East Block

and excluded them from the condemned row program in

those facilities.

Other than the exceptions referred to above,

however, petitioners adopted the original decree as the

blueprint for the condemned program in Carson Section

and East Block. They substituted a generous daily outdoor

exercise and recreation program for the tier recreation

available only in North Segregation. In addition to the

yard exercise equipment, they placed the table games and

exercise equipment required to be on the tier in North

Segregation, except for ping-pong tables, on the Carson

and East Block yards for the inmates’ use.

Consequently, the inmates’ conditions of confinement

over the years more than satisfied Eighth Amendment

standards and were substantially equivalent to those

required by the decree. The inmates, however, continued

to insist they were entitled to the letter of the decree in

each facility. In 1983, they filed their first contempt

motion to that effect in connection with "Grade A"

4

inmates housed in a five-tier facility?’/. Petitioners

responded that the decree was not intended to apply to

Grade A inmates in facilities other than North Segregation

and, because of structural differences, that the letter of

the decree could not be enforced in other units. They

also submitted to the district court a detailed proposed

decree for those facilities which contained most of the

features set forth above. They argued in support of the

proposed decree that it fully complied with all applicable

state and federal laws and asked that it be entered as a

modification to the original decree.

The district court denied, in pertinent part, the

inmates’ contempt motion as well as petitioners’ motion to

modify. It ordered further negotiations. And it ordered

that North Segregation, because it was the only unit where

full compliance was possible, be reserved for those inmates

classified Grade A and who, consequently, were allowed

tier-time. This order remains in effect and has had the

collateral consequence of preventing petitioners from using

the most secure unit in San Quentin and one of the most

secure in the state to house inmates, such as Grade Bs,

who pose an even greater security risk than the Grade A

condemned.

The inmates filed another contempt motion in 1984,

then in 1985 withdrew it in favor of a motion to appoint

2. "Grade A" is the decree classification for approximately 90

percent of the condemned men; according to the decree and its

adaptation in Carson Section and East Block, inmates classified Grade

A are entitled to tier-time or daily yard, respectively. Petitioners’

motion to modify the decree in regard to Grade B inmates, who are

not entitled to tier-time, was granted and affirmed on cross-appeal.

Thompson v. Enomoto, App. at 20. The June 1982, order to negotiate

was directed at Grade B conditions in the Adjustment Center, which

is neither a Grade A nor a five-tier facility. The statement to the

contrary in the district court’s order, App. at 55, is incorrect.

Thompson v. Enomoto, 572 F. Supp. at 769-770; cf, Thompson y.

Enomoto, App. at 6, 16-17.

5

a special master (the "Monitor") on the grounds that

petitioners’ continued failure to comply with the decree in

Carson Section justified further court intervention.

Petitioners again objected that the decree did not apply to

Carson Section. When the district court granted the

motion, petitioners appealed on the same grounds. The

court of appeals dismissed the appeal, holding that the

appointment was an unappealable interlocutory order and

petitioners could renew their arguments "when the district

court decide[d] whether to adopt the Monitor’s

recommendations" concerning Carson section. Thompson

v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987).

In 1986, the inmates refiled their contempt motion

regarding compliance with the decree in Carson Section.

In response, the First Report of the Monitor was

submitted to the court. The Monitor concluded that the

petitioners were correct that the decree did not apply in

Carson Section. The Monitor made no findings concerning

decree compliance in that unit?’ and recommended that

the district court adopt his interpretation of the decree’s

scope. The inmates objected to that portion of the

Monitor’s Report. In December 1986, the district court

reversed the Monitor, ruled the decree should be

interpreted to apply to "segregated condemned

inmates...wherever housed" at San Quentin, and remanded

the Carson Section contempt motion for further

investigation. App. at 106-107.

On motion for reconsideration decided January 17,

1987, the court declined to vacate its reversal of the

Monitor’s conclusion about the scope of the decree. App.

at 113-116. The court purported only to interpret rather

than modify the decree, expressly ruled that its

interpretation was only "interlocutory," App. at 112, did

3. The court of appeals’ implication to the contrary is

incorrect. Thompson v. Enomoto, App. at 9.

6

not hold petitioners in contempt, and remanded the

inmates’ Carson Section contempt motion for further

investigation. In view of the court of appeals’ earlier

admonition to await action on the Monitor’s

recommendations before again appealing, petitioners did

not appeai the court’s ruling and order.

Thereafter, three more Monitor’s Reports were

issued. The Second Report, issued in July 1987, made no

findings concerning compliance outside North Segregation

and was never entered as an order. The Third Report was

issued in November, 1988. It construed the court’s January

1987, memorandum and order as in effect having certified

a class of all condemned inmates at San Quentin and

reported the results of the Monitor’s investigation of

compliance with the decree in East Block. The North

Segregation inmates had been moved to East Block due

to the renovation of North Bleck plumbing, heating and

ventilation, and the cells themselves, as ordered in other

litigation to which condemned inmates were not parties.

The renovation of East Block had by then been

substantially completed. The renovation was not required

by the decree.

The Third Report described some variations from

the letter of the decree. Most which affected Grade A

inmates were the result of having substituted the 4-1/4

hour per day, seven day per week yard program for the 6

hour daily indoor tier program. In regard to each variation

from the decree, the Monitor recommended the court

order petitioners to show cause why they should not be

held in contempt. The court so ordered.

A. The District Court Order

Petitioners responded by moving to vacate the decree

in its entirety, or in the alternative, to adopt the

thoroughly constitutional East Block condemned program

as the decree for all inmates for one year, then to dissolve

it as the parties had originally agreed. Petitioners argued

that the inmates’ conditions of confinement fully

7

comported with constitutional requirements and had for

many years. There is therefore no need for the decree at

all, much less for strict adherence to its provisions.

Moreover, the cases decided since its entry had established

that virtually the entire decree — and every provision

alleged not to have been adhered to in East Block —

unambiguously exceeded constitutional minima and

therefore was not an enforceable remedy absent continued

Eighth Amendment violations or intransigence in curing

past violations. Petitioners relied upon traditional

principles of equitable jurisdiction, the deference due their

expertise in prison administration and, in later briefing,

the Eleventh Amendment. Petitioners also contended it

was impossible to comply with every decree provision in

East Block and that the East Block condemned program

was in substantial compliance with the decree.

The inmates replied that petitioners had struck a

bargain to settle a federal court action and should be

required to adhere to its letter, absent "a grievous wrong

evoked by new and unforeseen conditions," United States

v. Swift & Co, 286 U.S. 106, 119 (1932). They did not

dispute that the inmates’ conditions of confinement were

and had been constitutional. Rather, they contended that

the decree remained valid as a compromise of their state

law claims, as well as their claim to a Fourteenth

Amendment substantive due process or equal protection

right not to be segregated on the basis of their capital

sentence alone. They asked that the East Block program

be made over in the decree’s image and that the court

retain jurisdiction to ensure that petitioners continued to

comply.

After a hearing on the order to show cause and

petitioners’ motions, the Monitor issued his proposed

Fourth Report. In it the Monitor purported to "reconcile"

U.S. v. Swift & Co., with later cases that have recognized

a more flexible standard for decree modification in, at

least, institutional reform cases. To do so, the Monitor

adopted a "standard" for modification that is not

susceptible of any definition.*/

The proposed Report (incorporated in pertinent part

into the district court order on appeal) recommended, that

(1) petitioners’ substitution in East Block of the daily yard

program for the North Segregation indoor tier program be

allowed, but that even more yard time, from more than

four hours each day to more than five hours, be added,

App. at 67, and that petitioners be required to provide

ping-pong tables, App. at 77, and serve lunch on the

yards, App. at 81; (2) the existing yard showers be

plumbed with hot water, App. at 80; (3) a roof be

constructed over part of the Grade A East Block yards,

App. at 71; (4) a storage shelf be installed in cach of the

more than 200 cells occupied by Grade A inmates, App.

at 83; (5) despite having access to hundreds of other

items, inmates be allowed to purchase from the canteen

toothpicks, dental floss, baby oil, shoe polish, plastic

spoons and dairy creamer even though, in petitioners’

opinion, these items pose a security threat in a SHU

(security housing unit) environment, App. at 88; and, (6)

petitioners allow inmates to use the off-the-row SHU law

library, App. at 101, and obey noise standards, App. at

104, ordered in a case concerning non-condemned SHU

inmates housed in five-tier units, including East Block.

4. "[S]tripped of excess verbiage, the decision in each of the

seminal cases ultimately turned upon the court’s judgment as to’

whether, under all of the specific ‘facts and circumstances’ present,

the lower court acted within its equitable discretion in granting or

denying modification to the party so moving. [Citations omitted.]

This standard should be used here..." App. at 51. The “excess

verbiage,” however, is an attempt at articulating limits on the

exercise of the courts’ discretion, “since discretionary action almost

by definition means an action...that is not subject to appellate

reversal." Fletcher, The Discretionary Constitution: Institutional

Remedies and Judicial Legitimacy, 91 Yale LJ. 635, 645 (1982).

9

See, Toussaint v. McCarthy, 597 F.Supp. 1388 (N.D.Cal

1984), affd. in part & revsd in part, Toussaint v. McCarthy,

801 F.2d 1080 (9th Cir. 1986).

The Report recommended no change in the North

Segregation condemned program and recommended denial

of petitioners’ motion to be allowed to house all Grade A

inmates in East Block, App. at 62, in effect modifying the

decree to create two separate condemned row programs.

It also recommended petitioners be cited for contempt for

disobeying the yard roof, shelving and hot yard shower

decree provisions in East Block.

Petitioners not only objected to the recommendations

on the grounds that none of them were required under

the Constitution or by past constitutional violations, they

had also submitted extensive, largely uncontradicted

evidence demonstrating that differences between East

Block and North Segregation rendered those

recommendations unnecessary, financially burdensome,

awkward to implement, wasteful and a security risk. Most

of this evidence was ignored, summarily dismissed, or

discounted in favor of substituting the Monitor’s judgment

for that of petitioners.

The Report agreed with petitioners that the decree

substantially exceeds applicable Eighth Amendment

standards, App. at 58-62, including all the provisions that

petitioners were not strictly complying with in East Block.

The Report did not identify any unconstitutional

conditions. But, concluded the Monitor, that did not

mean petitioners were entitled to have the decree vacated.

The Monitor explained that, in his view, the inmates

had a "plausible" liberty interest in being housed in the

general population at San Quentin, App. at 56, and

therefore they could not be segregated other than through

procedures which comport with due process. This liberty

interest is purportedly derived from the Department of

Corrections’ administrative segregation regulations. Since

that was one of the allegations of the 1979 complaint, the

10

Monitor concluded the decree should be seen as a

compromise of that claim and therefore still a valid

remedy for a constitutional violation. App. at 61.

Petitioners timely filed objections to this part of the

proposed report on the grounds (1) that the administrative

segregation regulations did not apply to condemned

inmates, who were segregated as a matter of long-standing

policy and sound correctional practice for reasons unique

to their situation within the penal system;2/ (2) that even

if the regulations did apply to them, their death sentences

met the regulations’ criteria and they had been afforded

all procedural safeguards due them in establishing the

substantive predicate for segregation; and, (3) even if the

regulations applied to them and the procedures employed

to order them segregated were inadequate, the court of

appeals had held that a decree which specified conditions

of confinement was not an appropriate remedy for a

procedural due process violation -- the remedy for the

latter is adequate process, not work programs, or exercise

schedules, ping-pong tables, shelving, and the like.

Toussaint v. McCarthy, 801 F.2d at 1106.

The Monitor rejected those conteutions without

comment and submitted the Fourth Report to the court

unchanged in that respect. Petitioners repeated all their

objections to the Report in a timely motion and in

5. This is the practice followed in most states with condemned

prisoners. See, Management of Death Row Inmates, Ch. V, pp. 1-6,

American Correctional Assoc., prepared for National Institute of

Justice, U.S. Dept. of Justice (1988). No other federal court has held

condemned inmates have a liberty interest in general population

housing, despite the prevalence among the states of segregation

regulations similar to California’s. In Pennsylvania, which has such

regulations, see, Hewitt v. Helms, 459 U.S. 460 (1983), a trial court

dismissed On summary judgment a claim that the condemned could

not be housed in segregation solely on the basis of their sentence, a

ruling the plaintiffs did not challenge on appeal. Peterkin v. Jeffes,

855 F.2d 1021, 1023 (3rd Cir. 1988).

ll

addition they moved the court reconsider its interpretation

of the decree to encompass Grade A facilities other than

North Segregation.

The district court denied petitioners’ motions and,

on October 5, 1989, entered the Fourth Report as its

order. It reiterated the Monitor’s conclusion about the

inmates’ liberty interest in general population housing

without responding any more than had the Monitor to

petitioners’ disagreements with that conclusion. App. at 35.

Petitioners now contend, as they did in the district court

and on appeal,£’ that that conclusion is plainly wrong. It

serves only to obscure the fundamental issues of federal

court jurisdiction presented by this case.

B. The Decision of the Court of Appeals

Petitioners appealed from the October 1989, order,

the Monitor’s appointment in 1985, and the orders

interpreting the decree to apply to condemned inmates

"wherever housed” at San Quentin.

In regard to the construction of the decree to apply

to condemned inmates "wherever housed," the court of

appeals held that the petitioners had waived their right to

object to the district court’s "modification" of the decree

to apply throughout the prison by failing to timely appeal

the June 1982, order to negotiate modifications and the

January 1987, memorandum order interpreting the decree.

Thompson v. Enomoto, App. at 17. Another circuit, and

another panel of the Ninth Circuit, have held nearly

identical orders to be non-appealable.

The court of appeals also held that the "consent

decree as interpreted by the [cJourt presents no Eleventh

Amendment problem." Jd. at 19. The court simply noted

that the action was brought against "state officials, not the

State, to vindicate constitutional rights under the Eighth

6. The court of appeals also did not respond to petitioners’

arguments on this issue. See, infra.

12

and Fourteenth Amendments|; t]his is not barred by the

Eleventh Amendment{,]" citing Ex Parte Young, 209 U.S.

123 (1908), and stated that “[wje are now dealing with a

consent decree in an action against state officials to

vindicate constitutional rights." Jd. at 18.

Petitioners’ Eleventh Amendment attack on the

district court order did not rely on whether the named

defendant was the state rather than state officials, any

more than had this Court in deciding the Eleventh

Amendment question in Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89 (1984). The court of appeals

did not respond at all to the merits of petitioners’ actual

Eleventh Amendment argument, one that was extensively

briefed by both parties and about which the courts of

appeals are in conflict.

The court of appeals also failed to address

petitioners’ challenge to the denial of their motion to

vacate or, at least, to modify the decree in light of the

history of compliance in North Segregation, the

constitutional conditions of confinement in East Block, and

the changed circumstances and intervening clarifications in

the law, which together eliminate the need for further

enforcement of the decree or the imposition of any

additional obligations in East Block. As this Court’s

intervening decision in Board of Education Of Oklahoma

City Public Schools v. Dowell, _U.S._, 111 S.Ct. 630

(1991), makes plain, these are potentially dispositive

jurisdictional] issues of fundamental importance to every

state and local governmental entity currently operating or

which will operate in the future subject to a federal court

decree.

REASONS FOR GRANTING THE WRIT

The jurisdictional issues presented by this case are

important and timely. What must state prison officials do,

and for how long, before they are entitled to an order

vacating a prospective decree governing conditions of

13

confinement and ending federal court oversight? Even if

continued oversight were justified in a particular case, that

should not end the inquiry. Where prison conditions have

long since been brought into compliance with the

Constitution but changed circumstances, such as an

increase in inmate population, render full compliance with

the consent decree impracticable, should not a district

court accept decree modifications proposed by prison

Officials which also fully comport with constitutional

requirements?

Answers to these questions vary among and within

the circuits. The variation is not solely, or even

principally, the result of the complexity and consequent

variety of the fact patterns presented in the cases. In

large part the conflicts result from the differing doctrinal

approaches to defining the limits of equity jurisdiction in

post-judgment proceedings.2’ As the institutional reform

litigation -- especially prison litigation -- begun during the

past two decades matures, the questions related to when

and how jurisdiction should end have become as critical as

those which, when asked at the beginning of the structural

reform era, defined when and how the federal judiciary

should seek to remedy federal constitutional violations.

The conflict in the cases on these questions reflects both

their importance and the increasing frequency with which

the courts are being asked to address them.

This Court’s decision in Oklahoma City Public

Schools /Etc.] v. Dowell, 111 S.Ct. 630, announced after

the court of appeals denied rehearing in this case,

addresses the showing to be made on a motion to vacate

a school desegregation remedial decree. The underlying

rationale in that case, if applied to the instant prison

conditions decree, should entitle petitioners to an order

7. Note, The Modification of Consent Decrees in Institutional

Reform Cases, 99 Harv. L.R. 1020, 1028 (1986).

14

vacating the decree and ending the case. That is

especially so here, since in addition to the limits on equity

jurisdiction emphasized in Dowell, the jurisdictional limits

inherent in the states’ Eleventh Amendment immunity

apply.

The decisions below also conflict with this Court’s

oft repeated direction that when considering either liability

or remedies, trial courts should defer where possible to

the professional judgment of state prison administrators.

This principle should apply no less to rulings on motions

to modify remedial decrees. Where prison Officials

propose to modify a decree rendered unenforceable by

changed circumstances, modification should be liberally

granted as proposed if the modifications comport with

constitutional requirements, especially where the conditions

are shown to be constitutional, to have remained so for

years, and where there is no evidence of official

intransigence in curing past violations.

The Writ should be granted on these questions to

examine how Dowell is to be applied in prison conditions

litigation, and to address the split in the circuits

concerning the application to post-judgment proceedings

of both the Eleventh Amendment and other limits on

equity jurisdiction. The Writ should also be granted to

protect the integrity of the consent decree process. State

and local correctional officials have become wary in recent

years of entering into consent decrees in the face of

uncertain fiscal, penal and legal circumstances for fear

they will be forced to forever comply with a decree that

proves*impractical or excessive. The lack of a coherent

standard for either decree dissolution or modification is

one source of their concern.£/ This concern may contribute

8. Correctional Law Reporter, Vol I, No. 5, at 73: "While

settling these complicated lawsuits...has the attraction of avoiding

extended and expensive litigation, many administrators have come

to curse the consent decree signed years ago, which still dictates

15

to a reluctance to participate in the efficient resolution of

new cases by consent.

This Court, in the exercise of its supervisory

authority over the administration of justice, should also

examine and reject the district court’s patently erroneous

conclusion, unexamined by the court of appeals, that

somehow California prison regulations having nothing to

do with condemned inmates nevertheless bestow on them

a "liberty interest" in being housed with the San Quentin

general population. But the Court need not do so to reach

the wnportant jurisdictional questions. Even if the courts

below were correct, the decree is stili an entirely

inappropriate remedy in a procedural due process case.

Finally, litigants in compiex litigation should not be

confronted with conflicting standards governing whether a

post-judgment order is appealable. The court of appeals’

conclusion that petitioners waived their objection to

expansion of the decree into other Grade A facilities not

only fails to explain how that waiver could include

objections to modifications not even proposed until years

later, it directly conflicts with at least one other court of

appeals’ decision on when similar orders in post-judgment

proceedings are appealable.

L. THE COURT OF APPEALS’ DECISION CONFLICTS IN

PRINCIPLE WITH THIS COURT’S DECISION IN

OKLAHOMA CITY PUBLIC SCHOOLS ¥. DOWELL,

BECAUSE THE INMATES’ CONDITIONS OF

CONFINEMENT ARE CONSTITUTIONAL AND WILL

REMAIN SO.

After the court of appeals denied rehearing, this

Court construed its precedents concerning consent decree

modification in connection with a school board’s request

to vacate a desegregation decree. Oklahoma City Public

how a facility must be operated.”

16

Schools v. Dowell, 111 S.Ct 630. The Court held that

"where the purposes of the desegregation litigation had

been fully achieved[, njo additional showing of ‘grievous

wrong evoked by new and unforeseen conditions’ is

required of the School Board" to entitle it to an order

vacating the decree. Jd. at 637, quoting United States v.

Swift & Co., 286 U.S. at 119. To demonstrate that "the

purposes of the desegregation litigation had been fully

achieved," a school board must show that the "School

District was being operated in compliance with the

commands of the Equal Protection Clause of the

Fourteenth Amendment, and that it was unlikely that the

School Board would return to its former ways." Jd. at

636-637.

Equally compeiling "considerations based on the

allocation of powers in our federal system," id., apply here

in connection with petitioners’ motion to vacate the

condemned row decree. State prisons, no less than school

systems, were not meant to be subject to federal court

decrees "in perpetuity." Jd. at 638. Like education policy,

the "inordinately difficult undertaking...{[of prison

administration is] peculiarly within the province of the

legislative and executive branches of government....

[S]eparation of powers concerns counsel a policy of

judicial restraint." Turner v. Safley, 482 U.S. 78, 85 (1987).

Unlike school boards, however, whose violation of the

Constitution by definition requires a lengthy period of

oversight to assure "the vestiges of de jure segregation had

been eliminated..." Dowell, at 638, prison officials are

ordinarily required only to end the identified constitutional

violation. Absent intransigence in moving to bring about

constitutional alignment, see, Hutto v. Finney, 437 U.S. 678,

687 and n. 9 (1978), a reasonable period of oversight in

prison cases, therefore, should if anything be on average

much shorter than in a desegregation case. Cf accord, id.

at 711-714, (Rehnquist, J., dissenting).

In 1979, when the complaint was filed in this action,

Sy a

17

California had been incarcerating condemned inmates

under a reenacted death penalty law for only two years.

After the decree’s entry, they moved quickly to comply.

When their motion to vacate was denied, petitioners had

complied with and exceeded the terms of the decree for

nearly nine years in the only unit where literal compliance

was possible. In the other units petitioners adapted the

decree as best they could, substituting substantially

equivalent privileges where possible. Moreover, as the

result of court orders in other cases to renovate North and

East Blocks, the condemned inmates benefitted from an

upgrade in the physical facilities that was not required by

the decree. Consequently, since the decree’s entry there

has not been even one allegation of a constitutional

violation related to the inmates’ conditions of confinement.

As measured by the cases decided since its entry the

goal of the decree here -- constitutional prison conditions -

- has certainly been achieved. In 1981, this Court held

"conditions that cannot be said to be crue] and unusual

under contemporary standards are not unconstitutional. To

the extent that such conditions are restrictive and even

harsh, they are part of the penalty that criminal offenders

pay for their offenses against society....[T]he Constitution

does not mandate comfortable prisons..." Rhodes v.

Chapman, 452 U.S. 337, 347, 349 (1981). The Third

Circuit has since applied those standards in a

comprehensive conditions of confinement case brought by

Pennsylvania’s condemned inmates. Peterkin v. Jeffes, 855

F.2d 1021 (3rd Cir. 1988). The Peterkin trial court had

examined virtually every aspect of the state’s treatment of

condemned prisoners, concluding each challenged

condition of confinement was constitutional under Rhodes.

Peterkin v. Jeffes, 651 F.Supp 895 (E.D. Pa. 1987). The

Third Circuit, in pertinent part, affirmed. Peterkin v.

Jeffes, 855 F.2d at 1022. The Ninth Circuit also twice

spoke to the conditions of confinement for non-

condemned San Quentin segregation inmates, in Wright v.

18

Rushen, 642 F.2d 1129 (9th Cir. 1981), and Toussaint v.

McCarthy, 801 F.2d 1080.

The conditions of confinement for California’s

condemned inmates meet and exceed the constitutional

standard established in Rhodes, as illustrated particularly

in both Peterkin and Toussaint2/ This Court has also held

there is no Fourteenth Amendment substantive due

process right not to be segregated from the general

population for administrative reasons. Hewitt v. Helms, 459

U.S. 460, 466-467 (1983). And Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89 (1984), barred federal

courts from enforcing state law against state officials.

These post-entry developments in the law have severed

entirely the relationship between the decree and the

federal and state law claims advanced in the underlying

complaint. 2°/

9. For instance, the 29 3/4 hours of outdoor exercise allowed

the Grade A condemned inmates in East Block each week is more

than twice the 14 hours allowed Pennsylvania’s condemned row

inmates and the 10 hours ordered in Toussaint. In Pennsylvania,

moreover, exercise is taken alone or with one other inmate in small,

uncovered, narrow yards devoid of any exercise or recreational

equipment. The yards lack even a drinking fountain. In contrast,

California inmates exercise together on large yards with plentiful and

varied exercise and recreational equipment and a cold water shower,

none of which is required by the Constitution.

10. It is on this point that this case is most clearly

distinguishable from two decisions relied on by the district court,

Badgley v. Santacroce, 853 F.2d 50 (2d Cir. 1988) and Kozlowski v.

Coughlin, 871 F.2d 241 (2d Cir., 1989). In Badgley, the jail conditions

were and remained upconstitutionally crowded, conditions which

would only have been exacerbated by the disputed modification. 853

F.2d at 53-54. In Kozlowski, the requested modifications would have

changed provisions “deeply rooted in federal law," 871 F.2d at 243,

which “fell within the ambit of the pleadings" in a case where liability

had been established at trial. Jd at 245. Here, it is unreasonable to

conclude that vacating the decree could impede “the ability to obtain

19

Under the circumstances, nearly nine years — far

longer than the parties had initially agreed — should have

been more than enough time to have "enable[d] the

[d]istrict [c]ourt to observe the good faith of [petitioners]

in complying with the decree" in North Segregation and

the Constitution in the other facilities. See, Dowell at 637-

638. The district court should therefore have dismissed

the case and relieved defendants of any further obligation

under the decree. The court, however, decided that the

Due Process Clause of the Fourteenth Amendment

protects a condemned inmate’s right not to be deprived,

without due process of law, of a "plausible," App at 56,

liberty interest in general population housing and

privileges, derived from the Department’s administrative

segregation regulations. App at 61. From this sole

premise, the district court concluded that the decree

remains viable as a compromise of a "colorable" federal

constitutional right, App. at 35, and should not be vacated.

The court of appeals, in apparent reference to that

conclusion, held that “as interpreted by the district court,"

App. at 19, the decree could be enforced.

Petitioners contend that that conclusion is plainly

very wrong*/ The district court’s superficial treatment of

the ultimate goal" of the decree. Jd. at 248. Petitioners’ treatment of

the condemned fully comports with the law, as it has for years. The

“ultimate goal" has long since been achieved.

11. Those regulations have always applied to non-condemned

inmates only. See, Toussaint v. McCarthy, 801 F.2d at 1097; *[nJothing

in [the regulations] purports to limit the Department of Correction’s

authority to segregate inmates to the circumstances enumerated....."

Condemned housing is simply not covered in the regulations. Instead,

San Quentin and the Department historically followed a policy of

segregating condemned inmates since long before the departmental

regulations were first enacted. And the Department has consistently

interpreted its segregation regulations as not applying to the

condemned. That was the case when this action was both filed and

settled, and it remains the case today. Even if the segregation

20

the question and the court of appeals’ unfortunate refusal

to articulate a basis for its affirmance argues for this

Court to exercise its authority over the administration of

justice and either decide the issue or vacate the decision

with directions for rehearing.

Even if, however, the inmates’ procedural due

process claim were valid, it would not follow that

petitioners’ motion to vacate the decree should have been

denied. It is not necessary to reach the "liberty interest"

question before examining whether the courts below

applied the appropriate standard for decree dissolution in

a prison case, or whether, as petitioners contend, the

courts improperly enshrined the decree as the law of the

case separate from the constitutional values it was meant

to enforce.42/

In Dowell, at 635, this Court rejected the view that

"an injunction takes on a life of its own and becomes an

edict quite independent of the law it is meant to

regulations did apply to condemned inmates, however, the regulations

are nevertheless fully consistent with the practice of assigning inmates

sentenced to death to security housing. The Department has

determined that the condemned as a class warrant segregation due to

their suicide, escape, and danger potential. The courts below did not

even attempt to suggest how, given that policy, any condemned inmate

could "reasonably form an objective expectation" that he would be

housed in the general population, nor did they explain how the

“regulations [are] . . . worded in such a way that an inmate could

reasonably expect to enforce them against prison Officials," so as to

effect his release from segregation. Kentucky Department of

Corrections v. Thompson, __ U.S. __, 104 L.Ed.2d 506, 518 (1989).

The regulations therefore do not create a Fourteenth Amendment

liberty interest for condemned inmates. Jd

12. The court of appeals avoided discussing guidelines for decree

dissolution, but its singular reference to what might justify

modification implies a one-way street favoring plaintiffs in

institutional reform cases. Thompson v. Enomoto, App. at 12.

21

effectuate." Instead, the Court emphasized that prospective

injunctive relief must "directly address and relate to the

constitutional violation itself.” Jd. at 637, quoting Milliken

v. Bradley, 433 U.S. 267, 282 (1977); and see, System

Federation No. 91 Ry. Employees’ Dep’t. v. Wright, 364 U.S.

642, 652-653 (1961); "[t]he parties have no power to

require of the court continuing enforcement of rights the

Statute no longer gives," whether or not the rights were

created by consent decree since "the court was not acting

to enforce a promise but to enfcrce a statute."

Here, the permissible remedy for a procedural due

process violation would be hearings which comport with

due process, not the detailed prescription for living

conditions and privileges in the decree. That was precisely

the holding in Toussaint, 801 F.2d at 1106, in reversing an

order requiring general population-like work privileges as

a remedy for inadequate segregation procedures for non-

condemned San Quentin inmates.42/ Neither the district

court nor the court of appeals explained how enforcing

any or all of the decree’s provisions could be justified in

light of the Monitor’s express conclusion that the decree -

- as was said of the work requirement in Toussaint -

“emulates insofar as possible the daily activities available

to San Quentin’s general population inmates..." App. at

59. If the decree thus protects the inmates’ "liberty

interest" in freedom from arbitrary segregation, then the

decree is nO more an appropriate remedy than the

13. “Requiring prison officials to provide work programs is an

inappropriate remedy. The due process clause seeks to prevent denial

of life, liberty or property by arbitrary decision. Hewitt [v. Helms, 459

U.S. at 476]; Greenholtzz [v. Inmates of the Nebraska [etc.], 442 U.S.

1, 7 (1979).j The due process clause requires procedure. See,

Mathews v. Eldridge, 424 U.S. [319, 335 (1976).] The district court’s

order, however, does not relate to enforcement of procedural

protection. The work requirement relates only to conditions of

confinement."

22

Toussaint work requirement.

It is not enough, therefore, to simply identify one

claim among many in the complaint that might still justify

prospective relief. On a motion to vacate a decree, the

court should also examine whether the decree remains

enforceable as an appropriate remedy. Cf, Dowell, at 637-

638. If it does not, either because subsequent case law has

determined that the decree does not properly address or

relate to the identified claim or because the parties or the

court were mistaken in fashioning it, it should be vacated.

To do otherwise saddles public officials with continuing

obligations that are not found in federal law. Petitioners

submit the Court should grant the Writ so as to examine

whether the principles at work in Dowell and the other

cases cited above should prevent this result.

Il. THE COURT OF APPEALS’ DECISION CONFLICTS WITH

OTHER APPELLATE DECISIONS, AND IN PRINCIPLE

WITH THIS COURT’S DECISION IN PENNHURST STATE

SCHOOL & HOSPITAL V. HALDERMAN, BECAUSE THE

DECREE DOES NOTHING TO ENFORCE FEDERAL LAW.

As state officials, petitioners’ discretionary authority

to administer San Quentin State Prison is also protected

by the Eleventh Amendment. Cf. Tumer v. Safley, 482 U.S.

at 85; "[w]here a state penal system is involved, federal

courts have. . additional reason to accord deference to the

appropriate prison authorities. [Citation omitted]."

The Eleventh Amendment bars lawsuits against the

states, and against state officials in their official capacity

unless a suit seeks prospective relief from a federal law

violation. Pennhurst State School & Hospital v. Halderman,

465 U.S. 89 (1984); Ex Parte Young, 208 US. 213;

Edelman v. Jordan, 415 U.S. 651 (1974). Although the

issue in Pennhurst was whether federal courts have

jurisdiction to enjoin state officials from violating state law,

it follows logi lly that if the Eleventh Amendment bars

federal courts from ordering state officials to obey state

23

law, the Eleventh Amendment also bars fe:'sral courts

from ordering state officials to obey no legal requirement

whatever. Such orders have nothing to do with holding

state Officials responsible "to the supreme authority of the

United States.” Jd. at 102, quoting Ex parte Young, 209

US. at 160, and see, 465 U.S. at 106.

The Eleventh Amendment should therefore bar a

federal court’s attempt to enforce a remedy that does not

in at least some substantial part spring from, address or

relate to an identifiable federal constitutional or statutory

right. Here, the district court concluded the decree had

little to do with enforcing Eighth Amendment standards.

And even if the inmates have a liberty interest in not

being deprived of general population housing without due

process, the decree does not address or relate tc what

process may be due them before they are segregated.

Whether the Eleventh Amendment has any

application at all to post-judgment proceedings is the

subject of conflicting decisions of the courts of appeals.

Two decisions from different circuits have recognized an

Eleventh Amendment bar to enforcement of previously

entered injunctive relief, including a consent decree, unless

enforcement is needed to remedy a federal law violation.

Lelsz v. Kavanagh, 807 F.2d 1243, reh’g den., 815 F.2d

1034 (Sth Cir.), cert. dism’d, 108 S.Ct. 44 (1987);

Washington v. Penwell, 700 F.2d 570 (9th Cir. 1983). But

the Second and Tenth circuits squarely disagree.

In Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir.

1989), the Second Circuit refused to accept the existence

of an Eleventh Amendment bar to enforcement of a

consent decree governing prison conditions. It relied

extensively on Firefighters Local No. 93 v. City of Cleveland,

478 U.S. 501 (1986), where this Court held consent

decrees executed by local officials which include remedies

in excess of those authorized by statute nevertheless may

be entered by the district court. The Tenth Circuit

adopted this view in Duran v. Carnuthers, 885 F.2d 1485

24

(10th Cir. 1989), cert. denied, 58 US.L.W. 3468 (U.S.

1990). But those courts may have badly misread

Cleveland.++!

The Fifth Circuit rejected the reading given

Cleveland by the Second and Tenth Circuits. Lelsz v.

Kavanagh, 807 F.2d at 1252. In turn, the Second Circuit

expressly rejected the Fifth Circuit’s interpretation as

"illogical." Kowzlowski v. Coughlin, 871 F.2d at 244. The

same result was reached in Duran v. Carnuthers, 885 F.2d

at 1491, where the Tenth Circuit followed Kozlowski,’

14. First, Cleveland did not decide an Eleventh Amendment

question; the defendants in Cleveland were not state officials but local

Officials and a municipal corporation who enjoy no Eleventh

Amendment immunity. Mt Healthy City Bd. of Ed. v. Doyle, 429 US.

274, 280 (1977). Second, Cleveland intimates nothing about whether

such decrees can be enforced over the objection of even a local

official defendant; the city in Cleveland argued in support of the

decree. Third, since this Court in Cleveland found the consent decree

analogous to permissible private race-conscious remedial employment

agreements and therefore not implicated by Title VII's prohibition

against certain race-conscious orders imposed after trial (id at 516-

517), it held the decree was consistent with federal law. Jd at 521,

and see, 530, (O’Connor, J., concurring). Here, petitioners contend

that the Eleventh Amendment barred the district court from enforcing

the decree over their objection and that therefore those orders do

violate federal law. Consequently, little about the Court’s discussion

of the criteria for entry of a decree can be read as a “rejection” of

either petitioners’ or the Fifth Circuit’s Eleventh Amendment

position. The Court certainly did not hold that a consent decree can

be enforced over a state official’s objection if its enforcement was

unnecessary to “vindicate the supreme authority of federal law."

Pennhurst [etc.] v. Halderman, 465 U.S. at 106.

15. In Carmuthers, the consent decree not only included an

express acknowledgment that the decree exceeded constitutional and

other legal requirements, id at 1489, but it also barred defendants

from ever seeking modification which would in any way “lessen the

benefits provided by the agreement ..." Jd at 1487. The court set

forth these concessions in full before rejecting an Eleventh

Amendment bar to enforcement. Jd at 1491. Carruthers thus may have

25

The court of appeals decision in this case, while

ambiguous, appears to adopt the position of the Second

and Tenth Circuits, despite the earlier Penwell decision.

This question therefore deserves plenary consideration.

Ill. THE COURT OF APPEALS’ AFFIRMANCE OF DECREE

MODIFICATIONS WHICH EXCEED CONSTITUTIONAL

REQUIREMENTS CONFLICTS WITH THIS COURT’S

DECISIONS RESPECTING THE DEFERENCE DUE PRISON

OFFICIALS IN OPERATIONAL MATTERS.

Prison officials are entitled to "wide ranging

deference to [their] expertise . . . in deciding how to best

administer their prisons." Peterkin v. Jeffes, 661 F.Supp. at

899, citing Hewitt v. Helms, 459 U.S. at 474; Hudson v.

Palmer, 468 U.S. 517, 524 (1984); Whitley v. Albers, 475

U.S. 312 (1986); Youngberg v. Romeo, 457 U.S. 307, 312

and n. 29 (1982). Deference is especially justified where

institutional security is implicated, even where fundamental

rights are allegedly infringed. Tumer v. Safley, 482 U.S. at

89. This Court has repeatedly cautioned that "the

problems of prisons in America are complex and

intractable, and, more to the point, are not readily

susceptible of resolution by decree.” Jd. at 84, quoting

Procunier v. Martinez, 416 U.S. 396, 404-405 (1974).

Yet when it comes to post-judgment proceedings in

prison cases, these guidelines are frequently disregarded.

So, for instance, in Kowzlowski v. Coughlin, 871 F.2d at

248, n. 8, the majority, over a vigorous dissent (id. at 249-

250), refused to acknowledge a duty to defer to the

expertise of prison officials when considering whether to

posed difficult questions of Eleventh Amendment waiver not present

here.

26

modify a consent decree#®’ Even assuming that an

overriding concern for the finality of consent judgments

justifies discarding the deference principle in determining

whether to modify a decree (id. at 248, n. 8}2/, there is

no reason to do so when deciding how to modify a decree

once the need for modification is recognized.

But that is precisely what the courts below did here.

As an alternative to vacating the decree, petitioners

offered to substitute the East Block program for all Grade

A inmates. They argued that clarifications in the law after

the decree’s entry and the differences between East Block

and the original unit, as well as experience with the

decree, operational and financial constraints, and security

concerns, justified modifying the decree as they proposed.

Although the court accepted the need to modify the

decree for East Block, App. at 54, it substituted its own

judgment for petitioners’ as to which modifications to

16. “Nor is this an instance where we must ‘ordinarily defer to

the[] expert judgment fof prison officials].’ While these standards

apply when evaluating the constitutionality of prison regulations, ihey

play no role in determining whether changed conditions warrant

modification of a consent decree." Jd Even if the need for "balance,"

id, justified a close examination of the evidence offered in support

of modification, it is unclear why the courts should ignore a prison

administrator’s expertise when evaluating a request for modification

after having deferred to the same expertise in determining liability

and entering the initial judgment. Prison officials do not become any

less expert, nor courts necessarily more so, after entry of a consent

decree.

17. But see, Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d

1114, 1120 (3d Cir. 1979), cert. den. 444 U.S. 1026 (1980): “An

approach to the modification of a complex affirmative injunction

which over-emphasized the interest of finality at the expense of

achievability would inevitably make defendants wary of any decree

imposing more than the bare minimum of affirmative obligation.

That wariness would, we think, tend to discourage the settlement of

injunction actions by consent decree, a high price to pay for the

benefits of finality."

27

adopt. Thus, the court of appeals’ summary affirmance of

the disputed modifications conflicts in principle with this

Court’s decisions respecting the deference due the

expertise of prison administrators on just such matters.

In regard, for instance, to the order to provide ping-

pong tables and ailow the inmates to purchase the six

canteen items, the record is replete with uncontradicted

expert evidence of the danger these items pose in a five-

tier SHU facility. The district court ruled, however, that

only actual misuse of an item by a condemned inmate is

relevant to proving the security risk connected with that

item; thus, petitioners’ expert evidence of the potential for

misuse was disregarded. E.g., App. at 77-78. But whether

a condemned immate rather than a non-condemned inmate

in a SHU had already done what the restrictions are

designed to prevent, is given little weight by prison

Officials with the responsibility for institutional safety and

security. Once it is shown or can be anticipated that SHU

security can be breached with a particular item, only the

irresponsible prison administrator would fail to bar access

to the item by all SHU inmates.

Similar disregard for not only petitioners’ expertise,

but petitioners’ responsibilities for "planning, and the

commitment of resources," Turner v. Safley, at 85, underlies

the rest of the disputed modifications, especially those that

order roofed yards and shelving, which would require the

expenditure of scarce funds io little beneficial purpose*”’

18. The disputed modifications certainly have no basis in the

Eighth Amendment. Prisoners are not entitled to shelves, or to have

lunch served on the yard, to play ping-pong or to possess baby oil,

shoe polish, dairy creamer, plastic spoons, toothpicks, or dental floss.

See eg., Wright v. Rushen, 642 F.2d at 1131. No case has ever held

that inmates are entitled to a hot shower on the exercise yard. The

inmates receive three hot showers a week indoors in East Block; since

they also have hot water in their cells, this more than satisfies the

Eighth Amendment. Toussaint, 597 F. Supp. at 1423. Nor are the

inmates entitled to a roofed yard, much less an indoor gymnasium

28

Even if the decree did relate to a cognizable federal

right, this Court has required trial courts to accept the

remedial proposals offered by public officials if they

adequately address a constitutional violation. Swann v.

Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 11 and 16

(1971). An official’s obligations under a decree should not

be increased where its terms are sufficient to cure the

violation. Pasadena City Bd. Of Educ. v. Spangler, 427 US.

424 (1976). Nor should the courts become “enmeshed in

the minutiae of prison operations,” since "the wide range

of ‘judgment-calls’ that meet constitutional...requirements

are confined to officials outside the Judicial Branch...." Bell

v. Wolfish, 441 U.S. 520, 562 (1979).

The courts below simply ignored these guidelines.+2/

Accordingly, the rejection of petitioners’ proposal conflicts

adjacent to their cells like the North Segregation tier area. See e.g,

Peterkin v. Jeffes, 661 F.Supp. at 911; "[i]ndoor exercise facilities...are

not mandated by the Constitution." Access to tier-time is the chief

distinction between the North Segregation and East Block programs.

It is a distinction without a constitutional difference. Petitioners

should therefore be allowed to house all the Grade A inmates in East

Block, freeing North Segregation to be used for the most serious

security risks.

19. Some courts of appeals appear to follow these principles in

evaluating prison Officials’ requests to modify a consent decree under

a “flexible” modification standard. Plyler v. Evatt, 846 F.2d 208, 212,

215 (4th Cir. 1988) (prison decree not an ordinary contract to be

strictly enforced); Newman v. Graddick, 740 F.2d 1513, 1520-1521

(11th Cir. 1984) (decree should require no more than “constitutional

alignment"); accord, New York State Assn. for Keiarded Children v.

Carey, 706 F.2d 956, 971 (2d Cir. 1983) (Swift does not bar

modifications consistent with reduced obligations found in subsequent

case law). But other courts do not See eg, Twelve John Does v.

District of Columbia, 861 F.2d 295, 298 (D.C. Cir. 1988) (emphasizing

Swift's “new and unforeseen conditions” language); Ruiz v. Lynaugh,

811 F.2d 856, 861 (Sth Cir. 1987) (same). And see, Kowzlowski v.

Coughlin, 871 F.2d at 247, where the court adopts an ill-defined

“quantum of necessity” test

29

with this Court’s decisions respecting the limits on the

jurisdiction of the federal courts to order specific changes

in how state prisons are to be administered.

IV. THE COURT OF APPEALS’ DECISION CONFLICTS WITH

ANOTHER COURT OF APPEALS’ DECISION ON

WHETHER CERTAIN POST-JUDGMENT ORDERS ARE

APPEALABLE.

The court of appeals’ decision squarely conflicts with

Ramirez v. Rivera-Dueno, 861 F.2d 328, 333-334 (1st Cir.

1988), where the court held that an order that the parties

should negotiate and the special master should report to

the court on compliance and make recommendations was

not an appealable injunction under 28 U.S.C. § 1292(a)(1).

Here, petitioners challenged the expansion of the

decree to East Block on the grounds they had not

consented to apply it in five-tier facilities, that its

expansion could not be justified as an "interpretation" in

aid of the decree’s purpose, and that if seen as a

modification the expansion was inconsistent with the

underlying law, relying, inter alia, on Firefighters Local

Union No. 1784 v. Stotts, 467 U.S. 501, 573-576, and n. 9.

(1984). The court of appeals held petitioners had waived

their objection to the decree’s expansion, App. at 17, and

that Stotts would in any event not bar the decree’s

"modification," id., since "the interpretation of the

decree...does not conflict with any statutory or

constitutional requirement." Jd. at 18 (emphasis added).2°/

The two orders the court of appeals held were

appealable, however, were not "final decisions" under 28

U.S.C. § 1291, Gulfstream Aerospace Corp. v. Mayacamas

20. Petitioners also relied upon Stozts in objecting to the specific

modifications ordered by the court. The court of appeals’ narrow

interpretation of Stotts conflicts with Stous’ disapproval of decree

modifications, ordered over defendants’ objection, which are

“inconsistent” with the underlying law. Jd at 576, n 9.

30

Corp., 485 U.S. 271, 275 (1988), nor were they "collateral"

orders "effectively unreviewable" on appeal from a final

order. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978). They also were not injunctions or, on their face,

modifications of the decree so as to be appealable under

28 U.S.C. § 1292(a)(1). App. at 128. Cf. accord, Rowland

v. U.S. Dist. Court For N.D. of Cal, 849 F.2d 380, 382 (9th

Cir. 1988). The 1982 order merely ordered negotiations.

The December 1986, and January 1987, orders interpreted

the decree to apply in the other facilities and ordered the

Monitor to investigate compliance — petitioners were not

ordered to do anything. Decree interpretations, without

more, are not orders "granting, continuing, modifying,

refusing or dissolving injunctions,..." Jd. The Writ should

therefore issue on this question.

CONCLUSION

For the foregoing reasons, petitioners respectfully

submit that the Writ of Certiorari should be granted.

DATED: March 13, 1991

DANIEL E. LUNGREN,

Attorney General of the

State of California

GEORGE WILLIAMSON,

Chief Assistant Attorney General

PAUL D. GIFFORD,

Deputy Attorney General

JOHN G. DONHOFF, JR.

Deputy Attorney General

Attorneys for Petitioners