# Opposition Brief — Rowland v. Thompson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1850%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 500 U.S. 931 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING, IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED, 4 No. 90-1499 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 JAMES ROWLAND, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Petitioners, ¥. MAURICE S. THOMPSON, et al., Respondents. OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DONALD SPECTER [Counsel of Record] STEVEN FAMA ARNOLD ERICKSON Prison Law Office General Delivery San Quentin, CA 94964 Telephone No: (415) 457-9144 Attorneys for Respondents QUESTIONS PRESENTED 1. Whether a consent decree in a complex civil rights case should be dissolved when, over the last decade, no court has ever found defendant-prison officials have fully complied with the decree, but in prior orders and the one being appealed the court has found numerous continuing violations of the decree and two significant violations of the Constitution? II. Whether the Eleventh Amendment bars a court from enforcing a consent decree that resolves federal constitutional issues arising from the Eighth and Fourteenth Amendments? III. Whether the lower courts properly ruled on prison officials' motion to modify the consent decree when in granting many of the requested modifications the courts rejected the rigid Swift test, but instead applied a flexible standard in order to accommodate the state's legitimate interests in prison security and fiscal economy? IV. Whether prison officials who, over the last eight years, have had multiple opportunities to appeal orders interpreting, modifying and refusing to dissolve a consent decree and who have acted in conformity with those orders may litigate the same issue on an appeal of an order directing them to comply with the decree? QUESTIONS PRESENTED . . . . ° . ° . : TABLE OF AUTHORITIES . ° . ° ° . . . . OPINION BELOW . . : : . . . ° . : JURISDICTION AND STATUTES PRESENTED . . . : . : STATEMENT OF THE CASE . . ° . : : . : . A. B. Cc. D. I. Introduction ‘ ‘ ‘: : é ‘ a ‘ 5 Initial Proceedings . ° ‘ ‘ The Consent Decree . ‘ . . A Summary of Prison Officials' Early Failures to Comply with the Decree . ° The Monitor's First Report . ° : ° . The Monitor's Second Report The Monitor's Third Report Petitioners' Motions before the Monitor to Vacate or Modify the Decree , . The Monitor's Fourth Report REASONS FOR DENYING THE WRIT . . . . ° I. THIS COURT NEED NOT DECIDE WHETHER THE CONSENT DECREE SHOULD BE DISSOLVED BECAUSE NEITHER THE COURT OF APPEALS OR THE DISTRICT COURT'S DECISION CONFLICTS WITH BOARD OF EDUCATION v. DOWELL (1991) 498 U.S. ___, 112 L.Ed.2d 715 A. The Ninth Circuit's Decision . : : B. Dowell is Factually Different and Legally Distinct From the Issues Presented by This Case. : ‘ ° : ‘ . : ‘ ‘ ii 18 18 19 If. THE NINTH CIRCUIT'S REJECTION OF PETITIONERS' ELEVENTH AMENDMENT CLAIM DOES NOT CONFLICT WITH THE DECISION IN PENNHURST OR WITH OTHER COURT OF APPEALS DECISIONS, AND BECAUSE PETITIONERS, BY AGREEING TO THE DECREE AND FAILING q=e RAISE ANY SUCH CLAIM FOR MANY YEARS, LONG AGO WAIVED ANY ELEVENTH AMENDMENT DEFENSE . . . . . 22 Til. THE NINTH CIRCUIT'S AFFIRMANCE OF THE DISTRICT COURT'S CAREFULLY CONSIDERED, FACT-SPECIFIC, FLEXIBLE RULINGS REGARDING DECREE MODIFICATIONS DOES NOT CONFLICT WITH THIS COURT'S DECISIONS REGARDING THE DEFERENCE DUE PRISON OFFICIALS BECAUSE, EVEN ASSUMING THAT DEFERENCE MUST BE GIVEN TO PRISON OFFICIALS' VIEWS IN DETERMINING MODIFICATIONS TO CONSENT DECREES, THE COURTS BELOW DID So - o +. . . . 7 7 . > ° . 28 IV. THERE IS NO CONFLICT AMONG THE CIRCUITS ON THE APPEALABILITY OF POST-JUDGMENT ORDERS AFFECTING AN EQUITABLE DECREE . ° ° . ° ° . . . 33 A. The Ninth Circuit's Ruling Does Not Conflict with the First Circuit : : : : : 33 B. The Appealability of the District Court's Orders . . ° ° ° . . . . 35 C. Petitioners' Conduct Estops Them From Prevailing : ‘ . : . ‘ : ; 37 CONCLUSION . ° . . . . . . ° . . 38 iii Cases Board of Education v. Dowell, 498 U.S. , 112 L.Ed.2d 715 (1991) : Bounds v. Smith, 430 U.S. 817 (1977) . . Carson v. American Brands, Inc., 450 U.S. 79 (1981) Chronicle Pub. Co. v. Hantzis, 902 F.2d 1028-1031 (1st Cir. 1990) eigen Davis v. Waklee, 156 U.S. 680 (1985) . . Delaware Valley Citizens' Council v. Commonwealth of Pennsylvania, 678 F.2d 470, (3rd Cir.) cert. denied, 459 U.S. 969 (1982) . . Duran v. Carruthers, 885 F.2d 1485 (10th Cir. EEOC v. Pan American World Airways, Inc., 796 (9th Cir. 1986) ; a ° Garrity v. Sununu, 752 F.2d 727 Ibarra v. Texas Employment Commission, 823 F.2d 873 (Sth Cir. 1987) . . . International Association of Machinists v. ( 1989) lst Cir. 1984) Airlines, 849 F.2d 1481 (D.C Cir. 1988) Jett v. Zink, 474 F.2d 149 (Sth Cir.), cert. denied, 414 U.S. 854 (1973) . . Kerwit Medical Products Inc. v. 616 F.2d 833 (5th Cir. 1980) N. Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir. Eastern 1989) Lelsz v. Kavanagh, 807 F.2d 1243 rehearing denied, 815 F.2d 1034 (5th Cir.), cert. dismissed, 108 S.Ct. 44 (1987) . . Lelsz v. Kavanagh, 824 F.2d 372 (5th Cir. Local Number 93, International Association of Firefighters v. City of Cleveland, 478 U.S. Marin v. Rowland, C-80-0012 MHP 501 (1986) iv 1987) & H. Instruments, F.2d 314 Inc. ‘ 18-21 34 26, 26, 26, 26, 24 28, -36 27 38 36 27 27 27 -26, 29 New York State Association for Retarded Children v. 596 F.2d 27 (2d Cir. 1979) . . : . . . Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) . . Carey, Ramirez v. Rivera-Dueno, 861 F.2d 328 (ist Cir. 1988) . Roberts v. St. Regis Paper (Sth Cir. 1981). ° ° Rockwell International v. Co., 653 F.2d 166 Council, 851 F.2d 1208 (9th Cir. 1988) . . . Scarano v. Centrai Railway 20? F.2d 510 (3rd Cir. Suffolk County Jail cases, Szabo v. U.S. Marine Corp., 542 F. Thompson v. Enomoto, Thompson v. Enomoto, 815 F. Thompson v Enomoto, Toussaint v. McCarthy, 597 Toussaint v. McCarthy, 597 aff'd in relevant part, Toussaint v. McCarthy, 801 Toussaint v. McCarthy, 918 Turner v. Safely, 482 U.S. United States v. Washington v. Penwell, 700 Wright v. Enomoto, 462 F.Supp. Swift & Co., Co. of New Jersey, 1953) . . . . . 59 U.S.L.W. 3546-3547. 819 F.2d 714 (7th Cir. Supp. 758 (N.D. Cal. 2a 1323 (9th Cir. 1987) 915 F.2d at 1389-1390 . . . F. Supp. 1427 (N.D. Cal. F. Supp. 1388 (N.D. Cal. 801 F.2d 1080 (9th Cir. F.2d 1080 (9th Cir. 1986) F.2d 752 (9th Cir. 1990) ee: oy ie ‘ 286 U.S. 106 (1932) . F.2d 570 (9th Cir. 1983) 397 (N.D. Cal. 1976) sum. aff'd sub nom. Enomoto v. Wright, 434 U.S. 1052 (1978) : HanSord Atomic Metal Trades 1987) 1982) 1984) 1984) 1986) 22, 33, 34, 13, 29, 19, Statutes and Rules 28 U.S.C. §1292(a) . 28 U.S.C. §1291 . : Federal Rules of Civil Proc Supreme Court Rule 14.5 : edure, Rule 23 vi Respondents, the plaintiff class, consisting of more than 300 men confined on Death Row at San Quentin State Prison and subject to petitioner-defendants' custody and control, respectfully request that this Court deny the Petition for Writ of Certiorari. OPINION BELOW The opinion below is correctly identified in the Petition at 1. In addition, another opinion in this case filed by the Ninth Circuit relevant to these proceedings is published at 815 F.2d 1323 (98th Cir. 1987). JURISDICTION AND STATUTES PRESENTED These matters are accurately set forth in the Petition at 1-2. STATEMENT OF THE CASE A. Introduction This case is about a Consent Decree governing prison conditions and practices for all California male prisoners who are condemned to die. Petitioners ask the Court to grant certiorari to review a Ninth Circuit decision affirming a District Court order denying in part their motion to modify the Decree and denying in full their motion to vacate the Decree. The petition is based on fundamental misconceptions about the Ninth Circuit's decision and petitioners’ past conduct. The Court of Appeals" opinion breaks no new ground when reviewing the district court's legal conclusions or discretionary decisions. It reaffirmed the use of a flexible standard for BAxTi fyine comment decrees in institutional reform litigation and Properly applied the doctrine of estoppel when reviewing petit ionere' claims that the Decree cowered only one unit at San Quentin. Contrary to the rosy picture petitioners paint ef their conduct Gurine the last decade, the recemi reveale a less charitable portrait. Petitioners hawe been charved with contempt seven times anc have been found in contempt three times. They continue to widlate the constitutional rioehts of condemned prisenere to thie day Their leoal positions dawe shifted with the cenventence of the moment 1@2SinS the lower courts te apely the dectrisnes ef tudtetal and esoitable estore) zh the fece of petitioners SVel iPr es tatransigence the HDastrict Sourt has bet te apex fc a2 Sees ie Maste Arm oen aa the Bons THz re reas. i Sate ar OS. te Ce ~83..23 The tor has 2Rhoel THM THT OSS T RNS Set 4 | repeated] fa tes ¢ Bote Sy Ble Cleat le 22 et . tli cPers Rave cRallenvged the S2StTrust Smet teuse oe 2 te az@ of Appeals Ce for apt t j She Bante ant we. Noe ~~ tle Sor.t $ recommendat tons how Te cs alts [e 2 ant ..2 2a chat | ted =I4 Son - — ae >) 6h "> 1271 TC 20 a > : 2 : 2¢ Yue SOefore tr > aay -.Te 2 = crt > ,~ > * }2MS2@ i 4 > 2s D zae 3 reared ~e? TWR OFM ses face 31d) 1 “Rem 3 [le nsenr sdqment ™ere wc uz* Jas “WHsoOns ia ir= shouid deny — 3g: .~ 35 a woes 3 Bis ”m Joes »AOtT oresent wiles laT na Mor" 4aYPce is wD + red ’ Jjera 98 | OW -s of other cirewits That is true in part because the decision is extremely fart specific. hecomd), if is clear from the record that the delay in resolving thie case is attributable largely to petitioners’ continuing vielatione of the berree and the Constitution. If the Court grants the writ it will delay for another year or more petitioners’ obligation to develop a plan that finally will implement provisions of a modified berree and eventually release ail parties from further Litigation. Third, despite petitioners’ nypertoie to the contrary, the recor] demonstrates that *he istrict court and i*s Monitor fave Bent over backwards *s accommevtate griseom officials’ legitimate concerns arising from chanyget clroums*erces e940 save notified the Secree according. s Both lower cvcrte Reve “riled falta fully te Sin@lly rescive the issues in thls compiler cease of ..@ FeMAL2 LAG Toe LA Br.tEe1 gla ang ia fact to this Court ’s® price Cec. 4.578 @890C.4..) TIGKe TGNCNLAGg on tenets of fecerée.. en et oUR.*: Te get .tiacn Clie SY grliacn officiels presents "* Qvot reeser ts Tier ertant “ie grucess The petition itee.% wowewer frenenms at ec ¢ een ve Cee Cor Genying the wrt The petitisg o4 cute ev Satie. «ecru aie Ris.eacinoe #tetemens Rie (6 § Bee tees Ser peer ene ny Pemeee | Sa | to present with eccuracs The “aco! Were’ “ct Gl athe underetanédine of the quer lon prerermet of BUS LcleeIt “euKoO SO deny the pet itior Ke oO ~“eRPONCenN « see forth mm account hietory, of thie cere anc sre “ . @eovrac cw wos ac in wM ©:on) fo ecmrt errr “Anes yer ’ “ve rw om 5. Initial Proceedings The complaint in this action was filed in the Northern District of California on July 6, 1979 on behalf of a class consisting of all prisoners who were then or in the future would be condemned to death by the State of California and housed at California's San Quentin Prison. ER 1-30. The defendants were the Director of the California Department of Corrections and the Warden of San Quentin in their official capacities. The complaint alleged that the conditions of confinement of condemned inmates at San Quentin violated the cruel and unusual punishment clause of the Eighth Amendment, the due process and equal protection clauses of the Fourteenth Amendment, the free exercise clause of the First Amendment, and various provisions of state law. At the heart of the complaint was the automatic assignment of all condemned prisoners to "Maximum A" status, the highest security risk Classification in the California system, and their consequent -- -,we+ ea _ | ~-a-« fC . . 4 : 2né prisoners a.llegea that California regulations governing the p.acemen= cl prisoners in administrative segregation created a e —- - = “* = = ess 77 i 2. Ic.1.cwing references will be used for documents @ e¢ -_- = --+-o- a . | > * $3ie4 in this Court and the lower courts: Petition. . mae stm i : eee) eee —— ' . Pe ' =_ . . om At the time of the Moni r*s tw : ré investigations no prisoners were housed in Nort? eg becca unit was being rer 7 ,. . - , ww » . . i On November 20, 1981, petitioners filed a counter-motion asking the District Court to modify the Decree to delete provisions which they claimed they could not comply with in the Adjustment Center. PSER 1. They did not contend that the Decree only applied to condemned prisoners when confined in North Seg. On January 20, 1982, the District Court modified the Decree in parts relevant to the Adjustment Center and extended jurisdiction to ensure substantial compliance. A few month later, on April 20, 1982, the prisoners again moved to hold petitioners in contempt for failure to comply with the Decree in the Adjustment Center, even as modified. CR 137. Petitioners admitted noncompliance, but opposed the motion on the ground that compliance was impossible because of structural differences in the Adjustment Center. PSER 9. Again, petitioners did not contend that the Decree only applied to prisoners confined to North Seg. Id. Instead of holding petitioners in contempt, the District Court continued the matter so that the parties could attempt to reach agreement upon modifications to adapt the Decree to the then current conditions in units other than North Seg. Thompson v. Enomoto, 542 F. Supp. 768 (N.D. Cal. 1982) .?/ On January 14, 1983, respondents again moved to hold prison officials in contempt for failure to comply with provisions of the 3. Respondents' motion also sought to modify the Decree to provide that condemned prisoners who were denied privileges for disciplinary or security reasons would be entitled to hearings as required for non-condemned igayto cc under Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976), sum. aff'd sub non. Enomoto v. Wright. 434 U.S. 1052 11978). The court denied this aspect of respondents' motion because the right to such relief was bargained away when negotiating the Decree. Jd. at 770. 9 LL Decree which were unrelated to structural differences between North Seg and the Adjustment Center. CR 172, 173. Defendants opposed the motion, but once again did not contend that the Decree applied only when condemned prisoners were confined in North Seg. CR 183. The District Court found petitioners in contempt for violating the visiting provisions of the Decree. CR 206. Frustrated by petitioners' noncompliance with the Decree and unable to negotiate a modification of the Decree, the prisoners moved the District Court in January 1985 to appoint a Special Master. Among other reasons in support of the motion, respondents identified over 30 continuing violations of the Decree, including inadequate lighting, inadequate medical and psychiatric care, the absence of a unit law library and insufficient showers. CR 227. The District Court granted respondents' motion and appointed a Special Master, known as the Monitor. Pet. App. A-120. The court explained that petitioners' own intransigence necessitated the appointment. Pet. App. A-120. The court cited petitioners' record of noncompliance with the Decree, as well as their failure to present the court with any acceptable modifications, or to even acknowledge any violation of the Decree. Ibid. Petitioners appealed the District Court's order to the Ninth Circuit, but the appeal was dismissed. Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987). E. onitor's First Report The Monitor conducted an extensive investigation of petitioners’ compliance with the Decree. His findings were detailed in his First Report, filed October 31, 1986. Contrary to petitioners' assertions, the Monitor found that prison officials were not complying with the 10 Decree in several respects. CR 316. However, he declined to find then in contempt. He aiso construed the Decree to apply only to those condemned prisoners confined in North Seq. Id. Respondents appealed the Monitor's legal conclusion to the District Court. The court reversed the Monitor and held that the Decree applied to all condemned prisoners wherever housed. Pet. App. A-1i06. The court based its conclusion not only on the language of tne Decree, but also on petitioners' post-Decree conduct and on its previous orders. ER 86-89. Defendants did not appeal from this order. The Ninth Circuit held that this was one of the appropriate times to appeal the scope of the Decree. Pet. App. A-9. F. The Monitor's Second Report Early in 1987 petitioners moved to modify the Decree to allow them greater latitude to handcuff condemned prisoners. After a hearing before the henieor the parties reached agreement on a modification to the Decree. Under the modification, which the District Court approved, petitioners were able to handcuff prisoners in exchange for allowing prisoners to possess certain typewriters and use weights for outdoor exercise. ER 155, 157. Petitioners agreed to and sought the court's approval of the modification even though weights and typewriters are not required by the Eighth Amendment or any other provision of federal law. ER 157. G. The Monitor's Third Report When negotiations again failed to resolve continuing issues relating to petitioners' noncompliance, the Monitor compieted his investigation. In November 1988, the Monitor issued his Third Report. ER 158-202. This Report recommended that the District Court 11 order petitioners to show cause why they should not be held in contempt for numerous instances of noncompliance with the Decree. The Report clearly demonstrated that there was no factual dispute about petitioners‘ failure to comply with the Decree. ER 162. When the Third Report was issued, ali condemned inmates had been transferred to the East Block at San Quentin, a separate structure from any of those in which condemned prisoners had been confined previously. ER 162. In his Third Report, the Monitor noted that plaintiffs were "a class within the meaning of Rule 23 of the Federal Rules of Civil Procedure, consisting of all prisoners housed under sentence of death at San Quentin State Prison, wherever housed within that Prison." ER 166. Petitioners did not file any objections to the Monitor's Third Report with the District Court, and on December 15, 1988, the Third Report was adopted by the District Court thereby ordering prison officials to show cause why they should not be held in contempt. ER 203-04. Again, petitioners did not appeal. Before the hearing on the order to show cause, petitioners filed @ moticn to vacate the Decree on the ground that the object of the Decree had been fulfilled by "operation of law" because current conditions of confinement, while not in conformity with the Decree, were nevertheless constitutional. They renew that argument before this Court, claiming in their petition that the conditions of confinement “over the years more than satisfied Eighth Amendment standards ... .“ Pet. at 3. See also Pet. at 13, 17, 18. This factual assertion is at best misleading. Not only has the District Court never made any findings on this issue, but four years after the Decree was entered the court in another case found that the conditions in units housing condemned prisoners violated the Eighth Amendment. Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984) aff'd in relevant part 801 F.2d 1080 (9th Cir. 1986) chronicled the extent to which petitioners allowed conditions to deteriorate in EastBlock and other units at San Quentin. The horrible conditions found by the District Court, even after a preliminary injunction had been in effect, displayed an utter disregard by petitioners for the safety and well-being of prisoners in their custody. The one and only reason petitioners improved conditions was the permanent injunction, and it took seven years, under the court's constant supervision, for them to comply with this ‘/ For petitioners to imply here that they maintain conditions order.* consistent with the Eighth Amendment as a product of their own free- will and good faith is a gross distortion of the facts. Petitioners compound their misstatement by asserting that the Monitor held that the Decree substantially exceeds applicable Eighth Amendment standards. Pet. at 9. The Monitor did nothing of the kind. The only authority cited by petitioners refers to the Monitor's discussion in the Fourth Report about prisoners' due process claims under the Fourteenth Amendment. Pet. App. A~-58-62. 4. Only within the last two months did the court find that all aspects of the Toussaint injunction were being followed at San Quentin. as Petitioners also moved in the alternative to modify the Decree to conform with the manner in which they were presently confining death row inmates, thereby effectively mooting the question of contempt. CR 447. Petitioners claimed that they were complying with the Decree as much as possible under the circumstances. They renew this erroneous claim in their petition, stating that they used the Decree as a blueprint for designing a program for condemned priscners in East Block. Pet. at 3. By their own admission, however, prison officials eliminated from the condemned program whatever provisions they considered “unnecessary [or] too burdensome." Pet. at 3. The predictable result is a program that bears little resemblance to the letter or intent of the original Decree. One of the central features of the Decree is the opportunity for Or out-of-cell time where prisoners can socialize and participate im programs in a fashion similar to general population prisoners. This feature is completely absent from the regimen imposed in East -_-—-~~ oe S we oe & & wii -2 ce) im TA z £G - Ss 4 (@) etitioners cla na t is dangerous and costly t provide imdoor exercise in East Block, but they made no attempt to provide an adequate substitute. After considering extensive evidence on this issue the Monitcr and the District Court rejected rguments. The District Court, in the order being appealed, found that petitioners could provide outdoor exercise time that is equal to or at least approximates the tier time required by 5 Petitioners’ also nave a@iscarded other significant features cf the Decree, including group religious services, canteen and cell furnishings Pet. App. A-83, 88, 93. i4 the Decree without significant cost or disruption of the prison routine. Pet. App. A-67. 1. The Monitor's Fourth Report After consideration of petitioners' motions, seven days of hearing and extensive post-hearing briefing, the Monitor issued his Fourth Report on August 1, 1989. ER 205-92. That Report and the court's order adopting it are the immediate subjects of the appeal and petition for writ of certiorari. In his Fourth Report the Monitor recommended numerous modifications of the Decree sought by petitioners, found many violations of the Decree and two constitutional violations. The violations of the Decree included (1) the absence of a roof in the exercise yard to shield prisoners from inclement weather, (2) insufficient opportunities to shower, and (3) insufficient indoor exercise. Pet. App. A-63, A-69, A-79. In addition, the Monitor found that petitioners were violating prisoners' constitutional rights under the Eighth Amendment to be free from severe unrelenting noise, and Sixth and Fourteenth Amendments to access to the courts through physical presence in an adequate law library. Pet. App. A- 98-101, A-103. Petitioners claim here that the Monitor “ignored, summeri ty te dismissed, or discounted" petitioners' evidence. Pet. at &. Nothing could be further from the truth. In fact, the Monitor deferred in large measure to petitioners' opinions on security related issves, even when there was little, if any, factual basis to support those opinions. Pet. App. A-72, 8&4, 86, 89. On the centrel issue of indoor tier time the Monitor expressly appraised petitioners ' i§ evidence in considerable detail before deciding the issue, largely in petitioners' favor. Pet. App. A-63-68. Also, the Monitor recommended modifying the Decree to take away from Grade B prisoners substantial property guaranteed by the original Decree. Pet. App. A- 19. The Ninth Circuit correctly found that the Monitor based his recommendations on “specific facts and evidence." Pet. App. A-20 fn. Ve The Monitor was similarly respectful of petitioners' legitimate interests when proposing a remedy. The dane did not blindly recommend to the court that petitioners be ordered to comply with every ietter of the Decree. Instead, he made his recommendations based on a recognition that in ins$itutional litigation the state and public interests at stake make it inappropriate to “interpret and enforce a consent decree as if it were strictly a 'bargain' between private parties." Pet. App. A-49. The Monitor also understood that concerns for preserving federalism require that any remedi2s imposed by a federal court must be narrowly tailored to cure the violation. Pet. App. A-50. Using these principles as a guide, the Monitor deferred in large measure to prison officials' security and financial concerns. For example, he accepted prison officials’ security arguments that the Decree should be modified to take away from Grade B condemned prisoners certain yard equipment, cell equipment, personal property, canteen items and access to telephones. Pet. App. A-19. He refused to apply the literal terms of the Decree to require indoor exercise in East Block. Instead he adopted a common sense solution and suggested that the District Court "avoid unnecessary entanglement in 16 an attempt to specify what structural modification might, or might not, allow a safe tier time program in East Block." Pet. App. A-66. The Monitor recommended, and the court ordered, that petitioners submit a plan to expand pre-existing outdoor exercise yard time so that it is substantially equivalent to the indoor tier *ime contemplated by the Decree. Pet. App. A-68. Also, in his Fourth Report the Monitor denied petitioners' motions to vacate the Deoree or modify it to conform to existing practices. Pet. App. A#62. He further recommended that the District Court order petitioners to remedy existing constitutional violations, again through connon feense and cost-effective measures.* The District Cyast adopted the Monitor's Fourth Report in full and denied petitiontre’ motion to vacate or otherwise modify the Decree. Pet. App. A-39. Petitioners' appeal to the Ninth Circuit and their writ to this Court followed. 6. The Monitor noted that to comply with an injunction in another case pending against San Quentin petitioners developed a satellite law library in order to satisfy their constitutional obligations to another class of segregated inmates. He recommended that the Decree be modified so that condemned prisoners also have access to this library. Pet. App. A-100- 101. Similarly, the Monitor recommended applying to condemned prisoners the noise reduction measures already adopted in the other case and implemented in East Block. Pet. App. A-103-104. 17 > &, REASONS FOR DENYING THE WRIT I. THIS COURT WEED NOT DECIDE WHETHER THE CONSENT DECREE SHOULD BE DISSOLVED BECAUSE NEITHER THE COURT OF APPEALS OR DISTRICT COURT'S DECISION CONFLICTS WITH BOARD OF EDUCATION v. DOWELL (1991) 498 U.8. , 112 L.Ed.2da 715 A. The Ninth Circuit's Decision In Board of Education v. Dowel], 498 U.S. _, 112 L.Ed.2d 715 (1991), the issue before the Court was whether a court imposed injunction concerning school desegregation should be dissolved when officials have complied both with the injunction and the Constitution. The Court held dissolution is proper when the defendants Rave complied with the injunction for a reasonable period of time and were unlikely to return to their unconstitutional practices. qe at 728 Tre Ninth Circuit did not have any reason to decide this issue. In Dowell the district court issued a coercive injunction of indefinite duration. The issues presented here are framed by a voluntary consent decree that has an explicit sunset provision. Mcrecver, assuming the principles announced in Dowell apply to this sf comsent decree, they are irrelevant because petitioners’ moncompliance with the Decree was not then and is not now disputed. see Pet. at 3 Therefore, the focus of the appeal was properly on petitioners’ efforts to limit or vacate the Decree for other reasons.- 7. The Court of Appeals decided only the following guuestions: whether "(1) the district court lacked jurisdiction ts moc.ify tne decree after 1982 (2) the district court exceeded Bb. Dowell is Factually Different and Legally Distinct From the Issues Presented by This Case Petitioners try in vain to fit this case into the mold of Board of Ed. Okiahoma City v. Dowell, supra, 112 L.Ed.2d 715. Their attempt fails because the central concern in Dowel] -- whether local officials who are complying with the Constitution and the injunction should be subject to “judicial tutelage for the indefinite future" -- is not present. Dowell is a thirty year old school desegregation case in which the district court imposed on local school officials an injunction to end de jure discriminatory practices. The injunction will continue of its own force unless dissolved upon proper motion. After school officials fully complied with the injunction for five years, the district court round that defendants would in the future continue constitutional practices without the burden of an injunction. I]d. at 724. The court terminated its jurisdiction of the case. Ibid. On this record this Court remanded the case back to the district court to decide, based on a totality of circumstances, whether school $ officials have eliminated all vestiges of past discrimination and | whether school officials complied with the injunction in good faith. id. at 729. The present case could not be more different. This history of this case is reminiscent of the Court's recent description of the protracted litigation in United States v. Co., 286 U.S. 106 (1932): "The defendant meat-packers and their its jurisdiction in enforcing the consent decree outside of North Seg; and (3) the district court abused its discretion in denying prison officials' motion to vacate the decree on Eleventh Amendment grounds." Pet. App. A-13. 1° allies had over a period of a decade attempted, often with success in the lower courts, to frustrate operation of the decree." Dowell, at 727. The only significant difference between Swift and this case is that here the lower courts have refused to cooperate with prison officials' attempts to evade their self-imposed responsibilities under the Decree. The injunction in Dowell continues indefinitely. That is not the case here. The Consent Decree would have expired by its own terms ten years ago if prison officials had fulfilled their part of the bargain.§ Pet. App. A-5. Petitioners state that the past nine years "should have been more than enough time to have ‘enabled the District Court to observe the good faith of petitioners in complying with the Decree . °o Pet. «zt 19. That is certainly true; there has been time enough for accurate observation. The District Court's definitive rulings which petitioners studiously avoid, are telling -- the findings are a litany of petitioners' continued and unabated failures to comply with the Decree- nd the Constitution.-— 6. In their petition, prison officials concede they are not complying with some provisions of the Decree because they have unilaterally decided they are "unnecessary" or "too burdensome." rat. At 3. 9. For example, in 1981 petitioners did not comply with provisions concerning attorney visits and screening of correctional officers. CR. 100, 113 {court order extending Jurisdiction for noncogzpliance In 1985 petitioners failed to properly maintain the unit law library, provide adequate psychiatric care, provide the prescribed number of weekly showers and permit group religious services. CR. 228, 241 [order finding noncompliance with Decree The monitor's most recent findings of moncozpliance are set forth in Statement of Case, gupra §H. See aiso Pet. App. at A-6)-¢ p=) In Dowel] school officials took the opposite approach; they complied with the injunction. Accordingly, on remand there appears to be a substantia) likelihood that the District Court may grant their motion to dissolve the permanent injunction. For California prison officials the same course remains available. Rather than fighting every step of the way, the surest road to achieve their desired goal is to promptly and consistently comply with the Decree and the Constitution. The key to ending this case is now, as it always has been, in petitioners' hands.?/ 10. The best example is petitioners' refusal to provide condemned prisoners with access to ,jthe courts. In 1986 the Ninth Circuit held that the paging system employed by prison officials at San Quentin to provide prisoners in segregation with law books was unconstitutional under Bounds v. Smith, 430 U.S. 817, 828 (1977). Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986). To comply with the Ninth Circuit's mandate, prison officials eventually set up a satellite law library for segregated prisoners. See Toussaint v. McCarthy, 918 F.2d 752 (9th Cir. 1990). Petitioners did not let prisoners on Death Row use this library or provide any other acceptable alternative. The district court in the present case directed petitioners to allow condemned prisoners physical access to a law library. Pet. App. A-40, A-101. Petitioners appealed to the Ninth Circuit without seriously contesting this part of the order, except to the extent it is covered by their argument that the entire decree should be vacated. To this cay, petitioners refuse to provide physical access to the library as required by Bounds, Toussaint and the district court's order in this case. 11. The California Department of Corrections has a history of ignoring court orders. Prison officials have been held in contempt at least one other prison case. See Toussaint v. McCarthy, 597 F. Supp. 1427 (N.D. Cal. 1984). A motion for contempt is now pending in Toussaint because of priscn officials’ alleged failure to comply with the preliminary injunction at the Correctional Training Facility at Soledad. Special Masters have been appointed in two involving San Quentin because of prison official of abiding by court decrees. See [To F. Supp. 1388, 1407, 1418 ‘court orders have compliance "spotty at best"°: Marin wv ee) ~ ~_- —— - ~ i= — ~ _ ~ — Rs 1 1 ~onsen= cscecrees, misreads the record of this case, and overlooks the fact Cnat petitioners iconmg ago consented to the jurisdiction of the federal courts ‘ e - --~ ~ ~ - ~ ~ a a oo nie > ¥.0 -al special master appointed part because prison - e% as & petit to set a tri settlement could be achieved, the order did not affect an injunction. v. Riv = , 861 F.2d at 334. Ina similar fashion, the Ninth Circuit in an earlier opinion in the present case dismissed petitioners' appeal because the appointment of a special master did not modify the Decree. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987). Both circuits applied the same standard, used the same reasoning, and reached the same result. Carson set forth the applicable test. It is not something this Court need again decide. B. ealabili istrict Court's Orders. Petitioners' main argument is not that the order appointing a special master was appealable, but that other orders applying the Decree outside of North Seg were not. This assertion is wrong, both for orders entered before and after the special master was appointed. As early as January, 1982, the District Court rejected petitioners' opposition to expand the scope of the Decree beyond North Seg and retained its authority to ensure that petitioners substantially complied with its terms. CR. 133. Except for limited terms agreed upon by both parties, the court denied petitioners' motion for modification. Jbid. There is, in fact, little difference between the effect of this order and the October 5, 1989, order now being contested. Both orders rejected petitioners' attempts to dissolve the Decree, applied the pecfee to condemned prisoners outside of North Seg, and maintained jurisdiction to assure compliance. All parties agree that the 198% rder is "final" under 28 U.S.C. 61291, subject to appeal. ef fe ferula ss A; ye % fe ;< ° j Br ,ef ,UeCRE SON Vs Enomoto, No. 89- 16420, dated February 7, i990, p. 1. The same is true of the earlier order. The scope of the Decree also was at issue in June, 1982, when the District Court ordered the parties to negotiate further modifications outside of North Seg. Thompson v. Enomoto, 542 F.Supp. 758 (N.D. Cal. 1982). Petitioners could have appealed. Roberts v. St. Regis Paper Co., 653 F.2d 166, 170 (5th Cir. 1981.) [extending consent decree's scope is appealable under Carson standards]. In March, 1983, the court refused to dismiss the action simply because the Decree was being complied with in respect to the named plaintiffs housed in North Seg. CR 206; see also CR 185. Refusal to dismiss an injunction is appealable. See Kerwit Medical Products Inc. v. N. & H. Instruments, Inc., 616 F.2d 833 (5th Cir. 1980) {order denying motion to vacate consent decree}. At the same time, the District Court found petitioners in contempt for failing to maximize visiting opportunities for prisoners in the Adjustment Center, another unit outside North Seg. Reporters Transcript, dated March 17, 1983, p. 20; CR 206; Pet.App. A-113. Contempt is appealable where it appears the district court enlarged upon the original judgment. See Szabo v. U.S. Marine Corp., 819 F.2d 714, 716-718 (7th Cir. 1987) [post-judgment contempt order appealable]. Finally, in December, 1986, the court found that the Decree applied to all condemned prisoners, wherever housed in San Quentin. CR 327, 342. The practical effect of this was to enforce the Decree outside of North Seg. Petitioners agree that this order was an “interpretation" concerning the scope of the Decree. Pet. at 5. As 36 a Ean such, it was an appealable modification. national Assn. of Machinists;v. Eastern Airlines, 849 F.2d 1481, 1485-1486 (D.C. Cir. 1988). Thus, the Court of Appeals simply applied the same standards used by courts throughout the circuits. As such, it had ample grounds for concluding: It would be nonsensical to permit the prison officials to appeal the issue of the applicability of the decree to the Inmates outside of North Seg at this juncture of the case. The prison officials had their opportunity to appeal the modification of the decree... . Under the doctrine of the law of the case, the court's interpretation of the decree must stand. Thompson v. Enomoto, 915 F.2d at 1390 (citation omitted). C. Petitioners' Conduct Estops Them From Prevailing. Even if petitioners could not have appealed the orders of the District Court described above, their own conduct estops them from successfully litigating the issue.” The District Court's ruling applied two kinds of estoppel -- equitable and judicial -- to petitioners' conduct. Pet. App. A-116. The court applied equitable estoppel because petitioners prejudiced respondents by representing in other proceedings that the Decree governs condemned prisoners outside of North Seg. Ibid; see Davis v. Waklee, 156 U.S. 680, 689 (1985). The District Court also applied the doctrine of judicial estoppel, which prohibits a party from asserting a position in litigation that is contrary to a previously asserted position. 17. Petitioners have not sought certiorari on this issue. Therefore, this part of the lower court's ruling is final and binding on al) parties. 37 Rockwell International v. Hanford Atomic Metal Trades Council, 851 F.2d 1208, 1210 (9th Cir. 1988). See also, Jett v. Zink, 474 F.2d 149, 155 (5th Cir.), cert. denied, 414 U.S. 854 (1973); Scarano v. Central Ry. Co. of New Jersey, 203 §.2d 510, 513 (3rd Cir. 1953). The court found that petitioners' position is inconsistent with that taken earlier in successfully moving the court to modify the Decree in units other than North Seg. Pet. App. A-116. The Court of Appeals made the same basic point: If the decree had ceased to exist in 1982, or if the decree had been confined to North Seg Inmates, it would be nonsensical for the prison officials to have attempted to negotiate modifications to the decree for eight years for the inmates housed outside of North Seg. Thompson v_ Enomoto, 915 F.2d at 1389-1390. CONCLUSION For the reasons stated above, the petition for writ of certiorari should be denied. Respectfully submitted, / ff . rs VA / ‘ fs DONALD SPECTER [Counsel of Record] STEVEN FAMA ARNOLD ERICKSON Prison Law Office General Delivery San Quentin, CA 94964 (415) 457-9144 Attorneys for Respondents April 1991 CERTIFICATE OF SERVICE BY MAIL JAMES ROWLAND), e1 ai. No. 90-1499 Petitioners, V. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MAURICE S. THOMPSON, et al., Respondents. ee ee JOHN G. DONHOFF, JR., a member of the Bar of the Supreme Court of the United States, states: That his business address is 455 Golden Gate Avenue, Room 6200, in the City and County of San Francisco, State of California; that on May 6, 1991, he served a true copy of the attached Reply Brief of Petitioners on Writ of Certiorari in the above-entitled matter on counsel for petitioner by- placing same in envelope addressed as follows: DON SPECTER ROBERT R. RIGGS PRISON LAW OFFICE 15S SHATTUCK SQUARE, SUITE 205 GENERAL DELIVERY BERKELEY, CA 94704 SAN QUENTIN, CA 94964 Said envelope was then sealed and deposited in the United States Mail at San Francisco, California, with the postage thereon fully prepaid. RECEIVED MAY 8 1991 -- THE CLERK office ~ TH SUPREME COURT, U.S. as, IN THE SUPREME COURT OF THE UNITED STATES JAMES ROWLAND, Director of California Department of Corrections, et al., No. 90-1499 Petitioners, PROOF OF SERVICE MAURICE S. THOMPSON, et al., Respondents. ee eae ee ee ae ee ee I, Donald Specter, a member of the Bar of this Court, hereby certify that on the 25th day of April 1991 one copy of the Opposition to Petition for Writ of Certiorari, Motion to Proceed in Forma Pauperis and Declaration of Andrew Robertson in the above-entitled case was mailed first class postage prepaid to , rn » - hn Donhoff , Deputy Attorney General, 455 Golden Gate Avenue, Suite 6200, San Francisco, California 94102, counsel for all petitioners herein. I further certify that all parties required to be served have been served. Respectfully submitted, —- A“ tr wh f 3st c.., Donald Specter Prison Law Office General Delivery San Quentin, California 94964 (415) 457-9144 Attorney for Respondents CERTIFICATE OF SERVICE BY MAIL os Sd — [Y G6 JIRO J. ENOMOTO, et al, ) ) Petitioners, ) RECEIVED : ‘ MAR 14 1991 MAURICE S. THOMPSON, et al., ) OFFICE ~~ THE CLERK ) SUPREME COURT, U.S. Respondents. ) ) JOHN G. DONHOFF, JR., a member of the Bar of the Supreme Court of the United States, states: That his business address is 455 Golden Gate Avenue, Room 6200, in the City and County of San Francisco, State of California; that on March 13, 1991, he served the required number of true copies of the Petition for Writ of Certiorari and Separate Appendix Petition for Writ of Certiorari in the above-entitled matter on counsel for respondents and the Clerk of the Court of Appeals of the Ninth Circuit, by placing same in envelope(s) addressed as follows: CLERK OF COURT JEFFREY D. WOHL U. S. COURT OF APPEALS ORRICK, HERRINGTON & NINTH CIRCUIT SUTCLIFFE P. O. BOX 547 400 SANSOME STREET SAN FRANCISCO, CA 94101 SAN FRANCISCO, CA 94111 DON SPECTER PRISON LAW OFFICE GENERAL DELIVERY SAN QUENTIN, CA 94964 Said envelope(s) were thep sealed and deposited in the United States Mail at San Francisco, California, wit 6 gies thereon fully prepaid. ; j j / / JOHN G. : Deputy Attorney ( --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1850%3A3. Public record. Not legal advice.