# Petition for Writ of Certiorari — Shimoda v. Akao > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1343%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 993 ## Text Supreme Court, UES | riL:ED 8% 1343 FEB 8 1999 No. 87- ; JOSEPH F. SPANIOL, JR, 2teeK In The Supreme Court of the United States October Term, 1987 o-— EDWIN T. SHIMODA, Administrator _ Oahu Community Correctional Center, and MICHAEL KAKESAKO, Corrections Division Administrator, Pe tit One TS, a EMMET AKAO, ALLEN V. TRIPP, AND GARRICK UMIAMAIA, Respond nts. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ty Uv WakrEN Price, II] Attorney General State of Hawau CortnneéE K.A. WaTANABE® First De puty Attorney Gene ral State of Hawai *Counsel of Record STEVEN S. MICHAELS 1) puty Attorine y Gene ral State of Hawai State Capitol Honolulu, Hawaii 96813 (SOS) 548-4740 Counse ] for Pi titioners COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 ur call collect (402) 342-2831 em i \ cj , \ \ 1 QUESTIONS PRESENTED 1. Whether the judgment of the court of appeals, which on the basis of ‘‘intervening’’ law of the circuit, handed down after judgment was entered for petitioners in the district court, permits respondent inmates to litigate monetary claims for alléged Eighth Amendment violations occasioned by asserted prison overcrowding, conflicts with this Court’s decision in Anderson v. Creighton, 107 S. Ct. 3034 (1987), or, if it does not so conflict, breaches the limits of the Eleventh Amendment? 2. Whether the court of appeals erred in foreclosing petitioners even from presenting evidence to substantiate their claim that a 1985 federal consent decree settling litigation of prison overcrowding charges, including all claims ‘‘applicable to more than the individual cireum- stances of a particular plaintiff class member,’’ and which reflected an explicit agreement by respondents that the conditions complained of could remain unchanged until December 15, 1987, mooted the instant controversy and barred respondents, members of the plaintiff class, from pursuing monetary relief to redress the instant Eighth Amendment claims ?* . Petitioners in this Court include Edwin T. Shimoda, who from 1982-July 1987 was, and who, on December 1987, was re- appointed as, Administrator 6f Oahu Community Correctional Center (“OCCC” or “prison’’), and Michael Kakesako, who from 1975-1984 was the Administrator of the Corrections Division, De- partment of Social Services and Housing, State of Hawaii. To the extent respondents’ complaint in the District Court seeks to name petitioners in their official capacities, petitioners are joined in this Petition by their successors in office, who are Allan Keliinui for Mr. Shimoda during the period of July-December 1987, and, for Mr. Kakesako, Theodore Sakai for the period 1984-87, and Harold M. Falk, Director of Corrections, thereafter. See Karcher (Continued on following page) TABLE OF CONTENTS Page QUESTIONS PRESENTED ..... sh Pan ee a ae i TABLE OF CONTE... 2... eee en see il TABLE OF AUTHOSGITISS 2. iil OPINIONS BELOW .....2.203055550500eeeee 1 JURISDICTION“... eee 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED occ. cccccescsccecsesssseee feat 4 STATEMENT OF THE Cale 3... eee 5 REASONS FOR GRANTING THE WRIT ............... oa 12 I. The Ninth Cireuit’s Decision Direetly Conflicts with the Decisions of this Court under the Qual- ified Immunity Doctrine and the Eleventh Amendment. _...0.0..c5.cideee ee 13 II. The Ninth Cireuit’s Decision to Give the Con- sent Decree in Spear v. Ariyoshi Absolutely No Effect in Precluding Damages Claims Departs from Settled Precepts of Adjudication and War- rants BevieW. icici eee 18 COIN CELLU BRTIONG - wrcseaceceecccceee cae 22 A PPPHEN DDE onicccccccciccecccsssssetsscouseecne sence la (Continued from previous page) v. May, 56 U.S.L.W. 4022, 4024-25 (U.S. Dec. 1, 1987). Until 1987, OCCC was administered by the Department of Social Services and Housing of the State of Hawaii. By the Act of June 29, 1987, ch. 338, 1987 Haw. Sess. L. 1096, OCCC is now ad- ministered by the state Department of Corrections. Any judg- ment against petitioners in their official capacities would ac- cordingly be borne by the State of Hawaii. Papasan v. Allain, 106 S. Ct. 2932, 2940 (1986); Helela v. State, 49 Haw. 365, 369, 418 P.2d 482, 485 (1966). iil TABLE OF AUTHORITIES Page (‘ASES: Akao v. Shimoda, 820 F.2d 302 (9th Cir.), rehearing denied and amended, 832 F.2d 119 (9th Cir. 1987) .... 3,8 Albers v. Whitley, 743 F.2d 1372 (9th Cir. 1984), reversed, 475 U.S. 312 (1986) 9,11,13 Anderson v. Creighton, 107 S. Ct. 3034 (1987) ............. 11, 12, 13, 14, 15, 16, 23 Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 (1986) 21 Bender v. Williamsport Area School District, 475 I a a Bowman v. Loperena, 311 U.S. 262 (1940) oe oa ahead a 3 Chevron U.S.A. v. Natural Resources Defense Councd, 467 U.S. 837- (1964) ET. 14 Cromwell v. County of Sac, 94 U.S. 351 (1877) .............. 20 Deakins v. Monoghan, 56 U.S.L.W. 4061 (U.S. ET el An I ne 19 Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir. a ae Rint tal i A 10 Ellis v. Dyson, 421 U.S. 426 (1975) nce 13, 21 Estelle v. Gamble, 429 U.S. 97 (1976) cece «=o Figueroa v. State, 61 Haw. 369 (1980) 00 17 FTC v. Minneapolis-Honeywell Co., 344 U.S. 206 St SS a 3 Gaut v. Sunn, 792 F.2d 874 (9th Cir. 1986), amend- ed, 510 F.2d 923 (Sth Cir. 1987) 2 Hans v. Louisiana, 134 U.S. 1 (1890) 0. 11, 12, 13, 17 Harlow v. Fitzgerald, 457 U.S. 800 (1982) Helela v. State, 49 Haw. 365, 418 P.2d 482 (1966) _...... i iv TABLE OF AUTHORITIES—Continued Page Hoptowit v. Ray, 682 F.2d 1287 (9th Cir. 1982) 7,8, 14 Karcher v. May, 56 U.S.L.W. 4022 (U.S. Dee. 1, a i PeSTa oP ENR PO nce ree ONDE Oe 1 Kennedy v. Silas Mason Co., 334 U.S. 249 (1948) ......18, 21 Lee v. Leyve, No. 83-0438 (D. Haw. Nov. 23, 1983) ........ 7,8 Limbach & Hooven v. Allison, 466 U.S. 353 (1984) ........ 19 Malley v. Briggs, 475 U.S. 335 (1986) ee eccceeneeeecceeeeeee 15 Maryland v. United States, 381 U.S. 41 (1965) 200... 10 Matter of Beverly Hills Bancorp., 752 F.2d 1334 (9th Cir. 1984) _.... AE ATS IED, Fs ce SS EN 22 Nevada v. United States, 463 U.S. 110 (1983) 2... 20 Nixon v. Fitzgerald, 457 U.S. 732 (1982) nana 21 Papasan v. Allain, 106 8S. Ct. 2932 (1986) 00... 16, 17 Pennhurst State School & Hospital v. Halderman, WE Re ee | | ite Rome e ALerns Sate =senenetoe 17 Public Utilities Comm’n v. Iawaiian Telephone Co., No. 87-1152 (U.S. filed Jan. 9, 1988) ......... 3 Pullman-Standard v. Swint, 456 U.S. 273 (1982) 000. ©=22 Quern v. Jordan, 440 U.S: 332 (1979) ~................... 13, 17, 23 Rhodes v. Chapman, 452 U.S. 337 (1980) 0. 8,14 Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) ....... 14 Spear v. Ariyoshi, No. 84-1104 (D. Haw. June 12, 5 Ms rhea hag ata eed nla ee ke 9, 18, 19, 20, 21, 22 Superintendent v. Hill, 472 U.S. 445 (1985) 0. 3 Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. eee So mma RR Iater Gre T OT MN eee Wr. ee a 9,11, 14, 16 Town of Lockport v. Citizens for Community Ac- tion, 431 U.S. 259 (1977) werner cn TABLE OF AUTHORITIES—Continued Page Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3rd Cir. 1983), cert. denied, 465 U.S. 1102 CGD | ic icwsincccernncicn nannies maaan 7, 8,16 United States v. S.A. Empersa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 G ) SNA OER AL Meare CL TLR ntact oe 16 Upchurch v. State, 51 Haw. 150, 454 P.2d 112 (1969) ..... 6 Virginia v. American Booksellers Ass’n, 56 US.LW. 4113 (UB. Jan. %, 1968) 16 Welch v. State Department of Highways, 107 BS. OC. Se CH a ee ie rs 11, 12, 17, 23 Wright v. City of Roanoke Redevelopment €& Housing Authority, 107 S. Ct. T66 (L987) occa 19 Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) ........... 8 Yates v. Aiken, 56 U.S.L.W. 4065 (U.S. Jan. 12, | ROOD Ue MIR anna hs Sh as See vee re 23 CONSTITUTIONAL AND STATUTORY PROVISIONS: U.S. Const., Eighth Amendment 22 ccseessceene passim U.S. Const., Eleventh Amendment 2.000000 4, 13,17 U.S. Const., Fourteenth Amendment 0. saree bit 4 38 UB. © SO) COE citi 4 BS UTED. 6 TEE. Ce veteeierictinncicn cee + SS UA. GTR Te cto eee + 6 USS. (2 Gee 2. ee 2, 3, 4 42 U.S.C. § 1983 (1982) ..... seh chadstadetiinalaticaideic cee 4, 8, 13, 19 Act of June 29, 1987, ch. 338, 1987 Haw. Sess. L. ........... i vi TABLE OF AUTHORITIES—Continued Page Court Rues: U.S. S. Ct. R. 20.4 3 U.S. S. Ct. R. 29.1 3 Fed. R. App. P. 25(a) 2 Fed R. App. P. 35 3 Fed. R. App. P. 40 3 Fed. R. App. P. 41(a) + Fed. R. Civ. P. 12(b)(6) 8 Ninth Cir. R. 1-1 2 Ninth Cir. R. 35-2 3 Lecistative History: Haw. Sen. Comm. Rep. No. 85-87, to be reprinted m 1987 Haw. Sen. J. — 6 ()ruer AUTHORITY: Restatement (Second) of Judqmeunts § 36(1) 20 No. 87- In The Supreme Court of the United States October Term, 1987 EDWIN T. SHIMODA, Administrator, Oahu Community Correctional Center,and MICHAEL KAKESAKO, Corrections Division Administrator, Petitioners, Vv. EMMET AKAO, ALLEN V. TRIPP, AND GARRICK UMIAMAKA, Respondents. a PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT > VV Petitioners Edwin T. Shimoda, Administrator, Oahu Community Correctional Center, and Michael Kakesako, Corrections Divisions Administrator, Department of Social Services and Housing, State of Hawaii, together with their successors in office, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Ninth Circuit en- tered in this proceeding on June 19, 1987. OPINIONS BELOW The opinion of the Court of Appeals is reported at 820 F.2d 302 (9th Cir. 1987), and is reprinted in Appendix 1 bo A. The amended opinion of the Court of Appeals is re- ported at 832 F.2d 119 (9th Cir. 1987). The order of the motions panel denying petitioners’ motion to dismiss is un- reported and is reprinted in Appendix C. The order of the Court of Appeals denying the petition for rehearing, rejecting the suggestion for rehearing en banc, and setting forth the court’s amendment to its opinion, is unreported and is reprinted in Appendix H. The order of the District Court granting petitioners’ motion to dismiss is also un- reported and is reprinted in Appendix E. JURISDICTION The judgement of the Court of Appeals for the Ninth Circuit was entered on June 19, 1987. A petition for re- hearine and suggestion of the appropriateness of rehear- ing en bane mailed on July 3, 1987, was treated by the court below as timely and was denied on the merits on November 9, 1987.' Under 28 U.S.C. § 2101 and this Court’s ' July 3, 1987, a Friday, was the 14th day after judgment in the court below, and the Petition for Rehearing was stamped “filed” by the clerk in San Francisco on Monday July 6, 1987. Our filing below was premised on Ninth Circuit practice, e.g., Gaut v. Sunn, 792 F.2d 874 (9th Cir. June 20, 1986), pet. mailed, No. 83-2320 (july 7, 1986), resp. ordered (July 20, 1986), amended, 810 F.2d 923 (Feb. 20, 1987), and our understanding that the Ninth Circuit considers Rule 40 petitions “briefs“-to which the mailing rule stated in Fed. R. App. p. 25(a) applies. See also Ninth Cir. R. 1-1 (adopting this Court’s mailing rule for filings on which appellate rules are silent). (Continued on fol'owing page) Rule 29.1, the time in which this Petition may be filed extends to and includes February 8, 1988, and this Peti- tion was filed within the time allowed. Jurisdiction in (Continued from previous page) Even if the above does not show that this Petition is timely, this Petition is still timely for the court of appeals in all respects treated the petition for rehearing as timely and denied it on its merits. See Bowman v. Loperena, 311 U.S. 262, 266 (1940). After the court accepted the petition as timely, the panel re- quested respondents to ‘file a response to the petition for re- hearing,’’ Order, Okao v. Shimoda, No. 84-1538 (9th Cir. Aug. 10, 1987), App. B, infra, and the mandate was stayed, as Fed. R. App. P 41(a) requires, App. G, infra. Respondents raised no is- sue that the Petition for Rehearing was untimely, see Answer to Petition for Rehearing and Suggestion of the Appropriateness of Rehearing En Banc, id. (9th Cir. mailed Aug. 24, 1987, Pet. App. 71, and, in disposing of the petition, the pane! stated in its order that it “has voted to deny the petition for rehearing,” Order, id. (9th Cir. filed Nov. ¥, 1987), App. H, infra. Particularly given the lower court’s order requesting a re- sponse to our petition, see Fed. R. App. P. 35 and Ninth Circuit Rule 35-2, these facts alleviate concerns the Attorney General of Hawaii has expressed in other cases that this Court might treat certain petitions under Rule 40, Fed. R. App. P., mailed to, but not received by, the court of appeals on the 14th day after judgment as untimely for purposes of this Court’s Rule 20.4, and ineffective to toll the time in which to seek review. Com- pare Pet. for Cert. at 3 n.1, Public Utilities Comm’n v. Hawaiian Telephone Co., No. 87-1152 (U.S. filed Jan. 9, 1988) (no action by court of appeals on petition); FTC v. Minneapolis-Honeywell Co., 344 U.S. 206, 210-11 (1952) (no paper even purporting to be a petition filed). Under any set of assumptions, this Court accordingly has jurisdiction to act on this Petition for Certiorari, and, on this basis, we ask the Court to turn to the merits of this case. Cf. Superintendent v. Hill, 472 U.S. 445, 458 (1985) (Stevens, J., joined by Brennan, and Marshall, JJ., concurring in part and dis senting in part) 4 this Court is invoked under 28 U.S.C, § 1254(1). Juris- diction in the District Court was alleged to have been con- ferred by 28 U.S.C. §§ 1848, 2201, and 2202, and was sus- tained by the Court of Appeals under 28 U.S.C. § 1331. If the court below allowed respondents to seek recovery against petitioners in their official capacities, petitioners urge that it lacked jurisdiction to do so by reason of the Kleventh Amendment. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Eighth Amendment to the Constitution provides that Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments in- flicted. The Eleventh Amendment to the Constitution provides that The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Sub- jects of any Foreign State. The Fourteenth Amendment to the Constitution pro- vides in relevant part that No State shall... deprive any person of life, liberty, or property, without due process of law[.| Section 1983 of Title 42, United States Code, provides in relevant part that Every person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. STATEMENT OF THE CASE This ease arises out of the efforts by the State of Hawaii to accommodate its rising prison population con- sistent with the demands of the Eighth Amendment. It presents the substantial issne of the cirenmstances in which convicted inmates may litigate claims for money damages against prison officials for the claimed effects of asserted- ly crowded prison conditions, and an equally important question of whether such claims may be pursued in light of a comprehensive class settlement, to which respondents were party, of complaints relating to Oahu prisons. 1. Like nearly every jurisdiction in the Nation, the State of Hawaii has experienced in recent years an ex- plosion in its prison populations. This rise in inmate pop- ulations has been accompanied by nmiassive increases in public expenditures for housing, medical care, rehabilita- tion, and related purposes.” ‘ According to statistics compiled in 1987 by the Hawaii Legislature: “During fiscal year 1975, the corrections division had expended $6,491,835. There were 6 facilities and a popula- (Continued on following page) 6 2. Despite these expenditures and efforts, on October 7, 1983, respondents Emmet Akao, Allen V. Tripp, and Garrick Umiamaka, three convicted inmates at the Oahu Community Correctional Center (‘‘OCCC”’ or ‘‘prison’’), filed this action in the United States District Court for the District of Hawaii to enjoin certain practices relating to housing in ‘‘ Module-1,’’ one of the several new units built in the 1970s after our legislature appropriated funds ‘‘ for the construction of a modern prison.’? See Upchurch v. State, 51 Haw. 150, 153, 454 P.2d 112, 114 (1969). As stated in the complaint, Module-1 contains 24 rooms, in- cluding eight ‘‘corner rooms,’’ each with floor space of 80.3 square feet, and air space of 637.3 cubic feet. Com- plaint {//7, 10, 11, No. 83-1167 (D. Haw. filed Oct. 7, 1983), Pet. App. 18. The module also contains a spacious 9? ‘‘recreation area,’’ and inmates, at the time, were housed in cells for only nine hours a day, ‘‘from 10:30 P.M. untill [sic] 7:30 A.M. the following day.’’ Id. [ 12, 14, Pet. App. 19. 3. The gravamen of respondents’ complaint to the District Court was that prison officials on June 20, 1983, informed respondents that they would, during the nine hour evening period, begin ‘‘tripling up the 8 corner rooms which at that time housed two men,’’ although ‘‘[t]he re- maining 16 rooms would still house only two men.’’ Td. 8. Respondents alleged that, ‘‘[d|ue to [present] popu- lation increases in Module-1, there is an increase in stress, (Continued from previous page) tion of 403 inmates and 325 staff members. By fiscal year 1986, expenditures reached $36,432,607; there were 9 facilities and a plan to open a mediuin security facility within the year; and the staff for the facilities increased to 1,294 and the inmate population jumped to 2,143.” Haw. Sen. Comm. Rep. No. 85- 87 (Mar. 2, 1987), to be reprinted in 1987 Haw. Sen. J. —. 7 fension, communicable diseases, and a high increase in confrontations between inmates.’’ Complaint § 12. Respondents did not allege that they lived in Module-1, or the corner rooms, or that they personally experienced increased stress, tension, communicable disease, or con- frontations. Nor did respondents claim the level of cleanli- ness, medical care, or security for inmates in the Module was itself inadequate. And respondents did not allege that the increases were intended to punish the Module-1 inmates rather than spread the acute housing shortage as fairly as possible. Respondents prayed for relief bar- ring ‘‘defendants, their successors in office, agents and employees and all other persons in active concert and participation with them from over crowding plaintiffs and >] housing 3 men in a room,’’ and for an ‘‘injunction’’ that ‘‘frJequires defendants to pay jointly, damages of $10,000.00,’’ and ‘‘punitive damages of $10,000 00.”’ Id. at 5. 4. Respondents’ complaint was only one in a series of mass-produced complaints over alleged overcrowding at OCCC, all of which, contemporaneously with this action, were dismissed by the District Court on the pleadings for failure to state a claim upon which relief could be granted. See, e.g., Lee v. Leyve, No. 83-0438 (D. Haw. order of dismissal filed Nov. 23, 1983), reprinted at Pet. App. 29, infra. Other courts at the time this action had commenced had acted similarly. In an exhaustive opinion issued two months before the instant complaint was filed, the United States Court of Appeals for the Third Circuit sustained against Eighth Amendment attack a per capita space allot- ment of 19.5 square feet of sleeping space, about a third 8 less than that under triple-celling here. Union County Jail Inmates v. DiBuono, 713 F.2d 984, 999 (3rd Cir. 1983). In the Ninth Cireuit, Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), had held that ‘‘inereased violence,’’ standing alone, did not state a claim for relief under § 1983, par- ticularly when prison populations were increasing, and had ruled only generally that the Kichth Amendment was breached when ‘‘the shelter of the inmates is unfit for human habitation.’’ Jd. at 1249; see also Wright v. Rushen, 642 F.2d 1129, 1182-33 (9th Cir. 1981). In Rhodes v. Chap- man, 452 U.S. 337 (1980), this Court itself had held that unless prison conditions ‘‘deprive inmates of the minimal 99 civilized measure of life’s necessities,’’ id. at 347 (empha- sis added), such conditions cannot be a basis for § 1983 rehet. Rhodes reserved whether overcrowding that in fact caused actual ‘‘rioting’’ would ever lead to an Eighth Amendment violation, and had noted the special delicacy of this issue inasmuch as ‘‘a prison’s internal security is ‘ peculiarly a matter normally left to the discretion of prison administrators.’’ Id. at 349 n.14. Petitioners moved to dismiss the action under Rule 12(b)(6),? and the Dis- trict Court, after joining respondents’ actions with two identical suits, granted the motion and ordered all three actions dismissed with prejudice. Akao v. Shimoda, No. 83-1137 (D. Haw. filed Dec. 21, 1983). At no time in the District Court did respondents seek leave to amend. Re- spondents appealed. 5. Respondents with leave of court filed their open- ing brief in the Ninth Circuit more than a year later. - See Memorandum of Law in Support of Motion to Dismiss, No. 83-1067 (D. Haw. Dec. 1, 1983) (citing, e.g., Rhodes, Hop- towit, Wright, Lee and Union County), Pet. App. 26-28, infra. Meanwhile, the Ninth Cireuit had held, in Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984), that injunctive relief under the Eighth Amendment could be had under the cir- cumstances in that case because the district court there found ‘‘double-celling engenders violence, tension and psy- chiatric problems,’’ id. at 1492, and, in Albers v. Whitley, 743 T'.2d 1372 (9th Cir. 1984), reversed on other grounds, 106 S. Ct. 1079 (1986), that qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800 (1982), could not ever be asserted under the Eighth Amendment standard of ‘‘de- liberate indifference’’ set forth in Estelle v. Gamble, 429 U.S. 97 (1976), because, in Judge Canby’s words, ‘‘[a] finding of deliberate indifference is inconsistent with a finding of good faith or qualified immunity.’’ 743 F.2d at 1376. When petitioners filed their answering brief, on June 5, 1985, Harlow immunity was not briefed as a ground on which to affirm the District Court judgment with respect to damages claims, if such claims were against petitioners in their individual capacities. 6. One week later, on June 12, 1985, the State of Hawaii and respondents, named plaintiffs in the class aec- tion, Spear v. Aryoshi, No. 84-1104 (D. Haw. decree en- tered June 12,'1985), Pet. App. 35, infra, entered into a comprehensive consent judgment settling an enormous range of prison condition issues at OCCC. The consent judgment, the first of its kind, establishes expert panels on medical care, food services and environmental health and safety, and corrections to submit plans including ‘‘objec- tives, timetables, and mechanisms for action,’’ and con- tains mandatory mediation clauses that require all issues, including compliance with the decree and the plans, on which there is a dispute to ‘‘be presented to a mediator.’’ ee 10 Pet. App. at 37-38. The decree allowed triple celling of all rooms in Module-1, the very source of respondents’ charge of unconstitutional prison conditions, for two and a half years, until December 15, 1987, td. at 41-42. Because under prevailing Ninth Cireuit law respon- dents would be barred by the decree from litigating any claim arising prior to its entry, see Eichman v. Fotomat Corp., 759 F.2d 1434, 1438-39 (9th Cir. 1985), the parties entered into an agreement that would permit plaintiffs to litigate ‘‘individual claims for declaratory, injunctive, and/or monetary relief,’’ for example, claims that would arise if a guard randomly applied excessive force, but that barred further litigation of claims ‘‘applicable to more than the individual circumstances of a particular plaintiff class member.’’ Consent Decree § I.N, No. 84-1104 (D. Haw. June 12, 1985). The waiver clause reads: By entering into this Decree, plaintiffs and members of the plaintiff class are not waiving any rights to pursue individual claims for declaratory, injunctive, and/or monetary relief. The only claims against de- fendants settled herein are claims for injunctive relief of a general nature as detailed in the complaint filed in this case and which are applicable to more than the individual cireumstances of a particular plaintiff class member. Pet. App. 39-40. As instructed by cases such as Maryland v. United States, 381 U.S. 41, 53 n.38 (1965), petitioners immediately moved to dismiss the appeal, which clearly concerned a claim ‘‘applicable to more than the individual circumstances of a particular plaintiff class member,’’ as moot. Pet. App. 54. 7. On July 11, 1985, a two-judge panel composed of Judges Farris and Wiggins denied the motion to dismiss. 11 Pet. App. 5. The panel reasoned that while the waiver clause should not be read literally, and thus ‘‘[t]he claims for injunctive and declaratory relief are moot,’’ id. (em- phasis added), the ‘‘claim for monetary relief is not moot, however.’’ On June 19, 1987, more than three vears after appeal was taken, a panel consisting of Judges Wallace, Kennedy, and Wiggins, reversed the district court in a per curtam opinion. The court reasoned that respondents’ claim that the asserted increases in population in Module-1 had led to ‘‘ ‘an increase in stress, tension, communicable diseases, and a high increase in confrontations between inmates’’ stated a claim for monetary relief under the Eighth Amendment. The court relied entirely upon ‘‘the intervening Toussaint opinion,’’? which was handed down ‘*!s]ubsequent to the decision of the district court.’’ 820 F.2d at 303, Pet. App. 2. The court instructed the, lower court to permit an amendment not to repair any defect in the allegation of wrongdoing, but to assure that respon- dents could allege that ‘‘they personally have suffered cruel or inhuman punishment.’’ Jd. (emphasis added). 8. Six days later, on June 25, 1987, this Court handed down its decision in Welch v. State Department of High- ways, 107 S. Ct. 2941 (1987), in which a majority of the Court refused to disturb the rule of Hans v. Louisiana, 134 U.S. 1 (1890), which barred respondents’ monetary claims if such claims were against petitioners in their official capacity. The same day, this Court also issued its-opinion in Anderson v. Creighton, 107 S. Ct. 3034 (1987), in which six Justices rejected analyses such as Judge Canby’s in Albers, and held that for personal capacity claims for dam- ages arising out of an unconstitutional act to survive a qualified immunity defense, ‘‘in light of preexisting law 12 the unlawfulness must be apparent.’’ 107 S. Ct. at 3039. Petitioners sought rehearing and rehearing en banc, rely- ing on Welch, Anderson, and other decisions, as well as on the conflict between the motions panel’s decision to fore- close any attempt to show on remand that the consent de- cree’s waiver clause barred respondents’ claims, and the merits panel’s decision to allow respondents leave to prove their factual claims. Although the court requested of and received from respondents a response to the petition for rehearing, the court denied the petition and rejected en banc review. Pet. App. 4, 14-15, 71. o REASONS FOR GRANTING THE WRIT Even if this Court had not decided Anderson v. Cretgh- ton, 107 S.Ct. 3034 (1987), or upheld Hans v. Loutsiana, 134 U.S. 1 (1890), this case would merit review. The liability of prison officials faced with vague and evolving standards under this Court’s Eighth Amendment jurispru- dence is a substantial issue. Crowded prisons are truly a national problem. That prison officials, who must com- pete for scarce funds with other important programs that address ‘‘the most basic economic needs of impoverished human beings,’’ Dandridge v. Williams, 397 U.S. 471, 487 (1970), may be liable for effects of an ‘‘increase in stress, tension, and communicable disease’’ caused by prison pop- ulation increases would be a matter of such import to warrant granting review, even absent conflicts in the courts of appeals or a conflict with the decisions of the Supreme Court. 13 The Court does not, however, write upon this issue with a clean slate. The decision of the court below is plainly wrong under Anderson and Hans, not to mention the settled holding of Quern v. Jordan, 440 U.S. 332 (1979), that 42 U.S.C. § 1983 does not abrogate the States’ immun- ity from suit in federal court. Just as important, the Ninth Cireuit’s decision makes meaningless a consent decree settling the largest prison litigation in the history of Ha- wail and which was intended to keep just such time-con- suming lawsuits as this out of the courts so that resources could be more effectively devoted to prison needs. The Ninth Circuit’s refusal to permit petitioners even to sub- mit evidence bearing on the parties’ intent, which threatens settlement efforts of this nature across the Nation, contra- dicts numerous principles of summary adjudication, e.g., Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), and justi- ciability, e.g., Ellis v. Dyson, 421 U.S. 426, 435 (1975), and ought to be the subject of this Court’s review, and, ulti- mately, reversal. I. The Ninth Circuit’s Decision Directly Con- flicts with the Decisions of this Court under the Qualified Immunity Doctrine and the Eleventh Amendment. As clarified by this Court’s Anderson decision, the objective qualified immunity enunciated in Harlow v. Fite- gerald, 457 U.S. 800 (1982), provides that state officials performing discretionary functions ‘‘will not be held per- sonally liable as long as their actions are reasonable in light of current American law.’’ 107 S.Ct. 3042 (emphasis added). In light of Anderson, which clearly overruled the Ninth Circuit’s analysis to the contrary in Albers, the Ninth Cireuit’s decision here is patently erroneous. For the court below recognized that the only way in which 14 respondent’s complaint could be read to state a claim for relief was by virtue of the ‘‘intervening Toussaint opin- ion,’’ which was handed down by the court below three months after respondents filed their complaint. See 722 F.2d at 1490. The decision to which respondents and the court below would hold petitioners was not part of ‘‘eur- rent American law’’ when petitioners were alleged to have violated respondents’ rights. Under Anderson, respond- ents simply cannot prevail. Respondents, seeking to bolster the judgment below in response to our petition for rehearing, cited the Ninth Circuit’s decisions in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), and Spam rv. Procunier, 600 F.2d 189 (9th Cir. 1979), as establishing that ‘‘each of the effects of over- crowding alleged by plaintiffs forms the basis of an Eighth Amendment violation and did so at the time the complaint was filed.’’ Pet. App. 77. But even though it is true that ‘‘this Court reviews judgments, not opinions,’’ Chev- ron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984), respondents’ argument to the lower court on why Anderson did not apply is exactly the argument that was rejected in Anderson. It of course was the law when this action was filed that conditions that ‘*deprive inmates of the minimal civilized measure of life’s neces- 9? és sities could be cruel and unusual under [a] contemp- orary standard of decency.’’ Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (emphasis added). But this, and the broad dicta in Hoptowit and Spain, take nothing from the fact that the Third Cireuit had held expressly, months be- fore this action commenced, that sleeping space a third smaller than that proposed for Module-1 here was consti- tutional, regardless of its effects on inmate morale, and 15 that district judges in Hawaii, including the judge in this case, had routinely dismissed overcrowding claims pleaded as violations of the Eighth Amendment. In light of the then-current legal landscape, petitioners could not have * 99 been ** ‘plainly incompetent in triple-celling Module-1 in the summer of 1983 even if that is what they did. P0jg = Luu0g ¢ Wi0g Zuuoq q ‘05 q “0D g ajnpow Z9|npow = 8 WG 9 WI0Gg bp Wi0g J “0D ¢ WI0Gg Z wicg Aepinyes € Wi0g Z w0g 9 WI0Gg p Wi0g g Wi0g ¢ UOC] Q ‘4405 gq “4407 y 4405 | wu0qg VY WO) | wiog Y “0D Zwiog G Wwi0g qd ‘407 q ‘1107 g wi0g € WI0OG Z WI0g y) 4405 9 WI0g p Wi0g Aepiiy Aepsinyy Aepsaupay, L-ZL “lj - ‘UOW pseAyinod UI g POWs, FINGIHDS TIVH NOILVIYDIN ' YILNID WNOILDIWYOD ALINAWWOD NHVO ¢€ WI0G Z wi0g 9 WI0Gg bp W10Gg g Wi0g L wiog VW WO) J “0D G wiog G ‘4407 gq “05 L wiog Y “wW0D Z wog SG Wwi0g Q ‘4107) gq “1107 g W10G 9 Wi0g p wi0g ) 4405 ¢€ Wi0g Z Wwi0G Aepsan, Aepuow yoom JaYyjO AIaAq S1OO] 4 BJLUJALY SIAOW 0/9-V¥ wd 90:9-uwid 90:¢ 9dIAaS yYDINYyD +«8 O/NPOW + 2|Npow Aepuns ZL-LL “4 - “UOW pseAyinoD ul 7 pow, we OO: LL we CL:OL 0} we ci:9g eh at 8:30 am to ~ 10:00 am 5la ~RECREATION FIELD SCHEDULE Monday Module 11 Module 13 Module 18 12:30 noon Module 4 Module 19 B Block Module 17 Module 1 Module 2 Module 3 Annex Tuesday Module 4 Module 19 Module 11 Module 13 Module 18 Module 1 Module 2 Module 3 B-Block Module 17 Annex Wednesday Module 1 Module 2 Module 3 Module 4 Module 19 B-Block Module 17 Module 11 Module 13 Module 18 Annex Thursday Module 11 Module 13 Module 18 Module 1 Module 2 Module 3 B-Block Module 17 Module 4 Module 19 Annex Friday Module 4 Module 19 Module 1 Module 2 Module 3 Module 11 Module 13 Module 18 B-Block Module 17 Annex DEPARTMENT OF SOCIAL SERVICES AND HOUSING CORRECTIONS DIVISION OAHU COMMUNTY CORRECTIONAL CENTER MEMORANDUM To All Concerned SUBJECT Revised Facility Movie Schedule Date May 30, 1985. FROM Rec. Unit (Marcus Docanay) Effective 6/10/85, every living area will view two movies per month as scheduled by the Rec. Unit. Sun. Mon. Tue. Wed. Thur. Fri. Sat. 1st/3rd 12Noon ——_ 12Noon Week M8 M7 ~ 1st/3rd 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm Week BlockA M4 M18 re M13 M11 M2 (1st flr.) 2nd/4th 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm Week (2nd flr.) M19 M1 M3 M17 ~~ Annex Block B Noted: /s/ Fred Ragasa CS Noted: /s/ Deanna Espirnis ASSA Noted: /s/ Miles Murakami APCA Approved: /s/ Edwin T. Shimoda OCA d2a Spear v. Ariyoshi, Civil No. 84-1104 NOTICE This is a class action proceeding pursuant to Rules 23(a) and 23(b)(1) of the Federal Rules of Civil Proce- dure. The named plaintiffs represent a class of all in- mates who are now, or in the future may be, incarcerated at Oahu Community Correctional Center (OCCC) and the Hawaii Women's Correctional Facility (HWCF). The action was not one seeking monetary damages. Its sole purpose was to secure injunctive and declaratory relief. The parties have agreed that the proposed consent de- cree settles and resolves all substantive claims in this law- suit. On June 12, 1985, the Court provisionally approved the proposed consent decree. However, pursuant to Rule 23(e), F.R.C.P., all mem- bers of the plaintiff class confined at OCCC and HWCF will be provided with a copy of this notice and a copy of the proposed consent decree will be posted in each housing unit and ten (10) copies will be available in the institu- tional libraries. Such copies will be delivered and posted on or before June 26, 1985. Class members will have 30 days to deliver any written comments to the court: Honorable Spencer Williams U.S. District Judge 450 Golden Gate Avenue San Francisco, California 94102 The court will fully consider any objections te the con- sent decree. 53a UNITED STATES COURT OF APPEALS - FOR THE NINTH CIRCUIT NO. 84-1538 DC = 83-1067-SPK Hawaii (Honolulu) EMMET AKAO, et al., Plaintiffs-Appellants, vs. EDWIN T. SHIMODA, etc., et. al., Defendants-Appellees. AFFIDAVIT OF JAMES H. DANNENBERG STATE OF HAWALL ) ) SS. CITY AND COUNTY OF HONOLULU _ ) JAMES H. DANNENBERG, being first duly sworn, on oath deposes and says that: 1. He is a deputy Attorney General, State of Hawaii, and counsel of record for defendants-Appellees in the above-entitled appeal ; 2. On June 12, 1985, parties in Spear, et al. v. Ariyo- shi, et al., US.D.C. Civil No. 84-1104 (D. Haw.) (‘‘Spear’’) signed and filed, with Court approval, a consent decree covering conditions of confinement, including crowding and triple-celling, at the Oahu Community Correctional Center and the Hawaii Women’s Correctional Facility; a true copy of that consent decree is attached hereto as Ex- hibit A; 54a 3. Plaintiff-Appellants are members of the duly cer- tified class of inmates bound by the consent decree in Spear; Further Affiant sayeth naught. /s/ James H. Dannenberg Subseribed and sworn to before me this 19th day of June, 1985. /s/ Teruko Wong Notary Public, State of Hawaii My commission expires: 6/8/86 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 84-1538 DC# 83-1067-SPK Hawaii (Honolulu) EMMET AKAO, et al., Plaintiffs-A ppellants, Vs. EDWIN T. SHIMODA, ete., et. al., Defendants-Appellees. PROPOSED ORDER The Court having reviewed Defendants-Appellees’ Motion to Dismiss Appeal for Mootness, and the records and files herein, and finding that the issues raised in the instant appeal have been resolved by the consent decree in Spear, et al. v. Ariyosht, et al., U.S.D.C. Civil No. 84-1104 (D. Haw.,*June 12, 1985); eT 55a IT IS HEREBY ORDERED that defendants-appel- lee’s Motion to Dismiss Appeal for Mootness is GRANT- ID and the appeal is hereby DISMISSED. DATED: San Francisco, California... CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served on the following by depositing the same in the United States mail, postage prepaid, on June 19, 1985, ad- dressed as follows: Emmet Akao 2199 Kamehaneha Highway Honolulu, Hawaii 96819 /s/ James H. Dannenberg Deputy Attorney General 56a APPENDIX L IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EMMET AK AO, et al., Plaintiffs-Appellants, VS. EDWIN T. SHIMODA, ete., et. al., Defendants-Appellees. NO. 84-1538 DC 83-1067-SPK Hawaii (Honolulu) FILED July 6, 1987 CATHY A. CATTERSON Clerk, U.S. Court of Appeals PETITION FOR REHEARING AND SUGGESTION OF THE APPROPRIATENESS OF REHEARING EN BANC | Material Deleted in Printing] I. STATEMENT OF COUNSEL | express a belief, based on professional judgment, that rehearing pursuant to Fed. R. App. P. 40(a), and Ninth Cireuit Rule 13(e)(2), or that rehearing en bane pursuant to Fed. R. App. P. 55(a), and Ninth Cireuit Rule 12, is necessary to review and correct the panel opinion in this matter [hereinafter cited as ‘‘Slip op.’’|, because of the following substantial reasons: (a) The panel decision fails to recognize appli- cable sovereign and qualified immunity defenses that are 3 * 3 3 * 2 é = x z % 4 4 7 2 BI Siva apparent on the face of the decision; moreover, these im- munities have been reaffirmed and expanded by the recent opinions of the United States Supreme Court in Welch v. State Department of Highways, 55 U.S.L.W. 5046 (U.S. June 25, 1987) (Eleventh Amendment immunity), and Anderson v. Creighton, 55 U.S.L.W. 5092 (U.S. June 25, 1987) (qualified official immunity), both of which were handed down after the panel decision in this matter; al- though it is within the Court’s power to remand these is- sues to the District Court, and we view the panel decision to have done so, Dandridge v. Williams, 397 U.S. 471, 475- 76 n.6 (1970), the error of permitting this litigation to go forward is so plain as to counsel rehearing, or rehearing en banc, and reversal. See Washington v. Davis, 426 U.S. 229, 238 (1976) (plain error); (b) The motions panel decision of July 11, 1985, by refusing to recognize that all damage claims for over- crowding were settled by the consent decree in Spear v. Ariyoshi, No. 84-1184 (D. Haw. June 12, 1985), of which plaintiffs were named class members, overlooks the plain language of the consent decree in violation of res judicata and Article III, improperly rendering summary judgment to plaintiffs on these issues; and (c) The holding that appellants’ pro bono counsel ‘‘may move for attorneys’ fees and costs’’ at this stage of the litigation, Slip. op. at 4, is plain error in light of the decision of the Supreme Court of the United States in Hewitt v. Helms, 55 U.S.L.W. 4907 (U.S. June 19, 1987), reaffirming Hanrahan v. Hampton, 446 U.S. 754 (1980), because appellants, even if they may not be dismissed, have not received any ‘‘relief on the merits of [their] claims.”’ Hewitt, 55 U.S.L.W. at 4909 ; 58a Il. THE PANEL OPINION, INTERVENING DEVELOPMENTS, AND STATEMENT OF ISSUES MERITING REHEARING OR EN BANC REVIEW. A, The Panel Opinion and Summary of Reasons Why Reheartng or En Banc Review Should Be Granted. The panel’s per curiam decision, Akao v. Shimoda, No. 84-1538 (9th Cir. June 19, 1987) [‘‘Slip op.’’] [Leopy attached as addendum ‘‘A’’], holds that pro se allegations that increases in prison population that lead to ‘‘ ‘an in- crease in stress, tension, communicable diseases, and a high increase in confrontation between inmates,’ ’’ Slip op. at 3 (quoting Complaint 12), state a claim under the Kighth Amendment, redressable under 42 U.S.C. § 1983 (1982). Slip op. at 3. To reach this result, the panel relies solely on the ‘‘intervening’’ decision in Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984), handed down more than three months after the complaint here was filed. See C.R. 1 (complaint filed on Oct. 7, 1983). A motions panel of this Court earlier had dismissed all claims for non- money relief as moot in light of the consent decree entered in Spear v. Ariyoshi, No. 84-1104 (D. Haw. filed June 12, 1985). The panel left intact claims for monetary relief notwithstanding that the class plaintiffs in Spear, inelud- ing appellants here, waived all claims ‘‘which are appli- cable to more than the individua! circumstances of a par- ticular class member’’. See Order, Akao v. Shimoda, No. 84-1538 (9th Cir. July 11, 1985) [copy attached as adden- dum ‘‘B’’|; Motion to Dismiss Appeal for Mootness, (June 21, 1985) [eopy attached as addendum ‘‘C"*"}. Apparently because the complaint in-this case did not clearly allege whether plaintiffs were proceeding against a 3 % te Od SR NAA. at A CES MET BE aed lanai ie eel ei 59a the state officers named therein in their official capacity, in which case the monetary claims would be clearly subject on remand to an Eleventh Amendment defense in the courts below, see Papasan v. Allain, 106 8S. Ct. 2931 (1986), or in their individual capacity, in which case the doctrine of qualified official immunity stated in Harlow v. Fitz- gerald, 457 U.S. 800 (1982), would protect the state offi- ciols in any further proceedings, the panel decision of June 19, 1987, left these immunity issues, as well as dispo- sition on the merits by summary judgment, or a full-blown trial, for remand under the established rule of appellate diseretion stated in decisions such as Dandridge v. Wil- liams, 397 U.S. 471, 476 n.6 (1970); cf. Kentucky v. Gra- ham, 473 U.S. 159, 167 n.14 (1985); Patsy v. Florida Board of Regents, 457 U.S. 496, 515-16 & n.19 (1982). Despite these remaining issues, however, the panel, citing Leeds v. Watson, 630 F.2d 674 (9th Cir. 1980), held that appellants’ pro bono counsel ay immediately *‘move for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988."" Rehearing or rehearing en banc should be granted to correct three fundamental errors that infect the panel de- cisions here. First, assuming, aryguendo, that everything in the panel decisions is correct, it is clear in light of recent deci- sions from the Supreme Court of the United States that no monetary damages could be had in this case. Under Welch v. Department of Highways, 55 U.S.L.W. 5046 (U.S. June 25, 1987), reaffirming Hans v. Louisiana, 154 U.S. 1 (1980), no damages may be had against state of- ficers sued in federal court in their official capacities. More significantly, under Anderson v. Creighton, 55 U.S.L.W. 5092 (U.S. June 25, 1987), and the qualified 60a immunity that exists under Harlow v. Fit :gerald, 457 U.S. 800 (1982), no liability can exist against an officer in his individual capacity because ‘‘[t}he contours of the right [at issue] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’’ Anderson, 55 U.S.L.W. at 5093. Because the panel relies for its analysis entirely on ‘‘the intervening Toussaint opinion,’’ Slip op. at 3, it will be impossible for plaintiffs to overcome //arlow immunity in the lower courts. Although in general this Court has discretion to remand unadjudicated defenses to the lower courts, when an immunity defense is as clear as that here it would be manifest error not to affirm. Second, in conclusively rejecting appellees’ defenses based on the consent decree in Spear v. Artyoshi, No. 84- 1104 (D. Haw. June 12, 1985), the panel decision contra- dicts its own rationale of permitting parties to present all colorable claims to the District Court. Rather than reject our mootness defense outright, given the waiver language of the consent decree the panel should at the least have vaeated the lower court’s judgment and remanded with instructions to make findings with respect to whether there , is present a live ‘‘controversy’’ with respect to damages liability. Rehearing or rehearing en banc should therefore be granted to correct this egregious violation of appellees’ rights under the consent decree, which were arrived at af- ter lengthy negotiations with counsel for plaintiffs in per- haps the most exhaustive class-action lawsuit to have been brought against the State of Hawaii in its history. Third, even if all the foregoing is incorrect, rehearing or rehearing en banc should be granted to correct that part of the panel decision that suggests that appellants’ he wikia As MPa (Ae Oe 6la counsel may immediately move for attorneys fees pursu- ant to 42 U.S.C. § 1988. The panel ruling that attorneys fees may be awarded at an interlocutory stage is in plain conflict with numerous decisions in this Cireuit, and at least two decisions of the Supreme Court of the United States, including //anrahan v. Hampton, 446 U.S. 754 (1980), and Hewitt v. Helms, 55 U.S.L.W. 4907 (U.S. June 19, 1987). For this reason, rehearing or en banc review should be granted, and the Court’s opinion should be amended to provide that attorneys fees may not be award- ed unless and until plaintiffs ultimately prevail on remand. B. The Panel Decision Remanding this Case Should Be Vacated and the Judgment Af- firmed Because It is Clear Beyond Peradven- ture that Appellees Would Have Immunity Even if the Plaintiffs on Remand Could Prove Their Claims. It is a hallmark of appellate procedure that this Court ‘‘review judgments, not opinions,’’ and that an appellee may sustain the judgment below ‘‘on any ground that finds support in the record.’’ Chevron U.S.A. v. Natural Re- sources Defense Council, 467 U.S. 837, 842 n.7 (1984); see also Thigpen v. Roberts, 468 U.S. 27, 30 (1984); Plaine v. McCabe, 790 F.2d 742, 751 (9th Cir. 1986); Bernard v. City of Palo Alto, 699 F.2d 1023, 1024-25 & n.1 (9th Cir. 1983). The record in this case now includes the panel decision, which holds that monetary relief can be had for prison overcrowding in 1983 solely on the basis of an ‘‘intervening’’ decision of this Court that was not handed down until 1984. Slip op. at 3 (quoting Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984)). Even if the State officials in this case were appellants, and unable to make use of the ‘‘any ground in the record’’ 62a rile, the panel decision that relief may be had on remand is so egregiously wrong that it would violate the plain error rule to reaffirm the panel judgment. See Washing- ton v. Davis, 426 U.S.229, 238 & n.9 (1976) (citing cases) ; see also Toussaint v. McCarthy, 801 F.2d. 1980, 1106 n.27 (9th Cir. 1986). Because we are appellees, it is even plainer that the panel decision should be overturned. No purpose whatever will be served by remanding this case to the low- er court. For even if everything the panel says about the Eighth Amendment is true, and even if plaintiffs could prove every allegation in the complaint, the relevant im- munity defenses truly make this a case in which ‘‘the same result would obtain.’’ Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 n.1 (9th Cir. 1983). We thus ask the panel, or the en banc Court, to grant rehearing, and affirm the judgment on sovereign and official immunity grounds. The reasons for this Court to so are especially force- ful in light of two recent decisions of the United States Supreme Court, of which the panel did not have the bene- fit when it decided this matter on June 19, 1987. In the first, Welch v. Department of Highways, 55 U.S.L.W. 9047 (U.S. June 25, 1987), a plurality of the Court re- affirms Hans v. Louisiana, 134 U.S. 1 (1890), which holds that ‘‘the Eleventh Amendment bars a citizen from bring- ing suit against the citizen’s own State in federal court.’’ 55 U.S.L.W. at 5048. Justice Sealia, who was presented for the first time with the issue whether Hans should be overruled, strongly suggested he supports the Hans rule, which ‘‘has been assumed to be the law for nearly a century,”’ id. at 5054 (Sealia, J., concurring in part and concurring in the judgment). Until further notice, the low- 63a er federal courts must assume that damages in official capacity actions against State officials, by state citizens, in actions under 42 U.S.C. § 1983, are barred. Papasan v. Allain, 106 S. Ct. 2932, 2940 (1986); compare Ouern v. Jordan, 440 U.S. 332, 342-43 (1979), with Welch, 55 U.S. L.W. at 5054 (Sealia, J., concurring); see Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986). If this is an official capacity suit, the District Court is powerless to grant monetary relief. The Supreme Court’s second recent decision bearing on this ease, Anderson v. Creighton, 55 U.S.L.W. 5092 (U.S. June 25, 1987), shows the same result must obtain if this is an action against State officers in their individual capacities. In Anderson, the Court made clear that ‘‘fpllaintiffs [cannot] convert the rule of qualified im- munity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’’ 55 U.S.L.W. at 5093. Re- versing the Kighth Circuit, the Court chastened the lower court for ‘‘refus{ing| to consider the argument that it was not cleariy established that the circumstances with which Anderson was confronted did not constitute probabie cause and exigent cireumstances.’’ Jd. (emphasis in origi- nal). Substantially clarifying Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held that officials must granted immunity when ‘‘their actions are reasonable in light of current American law.’’ 55 U.S.L.W. at 5094. There is no exception to qualified immunity for ‘‘intervening’’ de- cisions of ‘‘ American law’’ that prove state action unlawful after it has occurred. Under the pane! decision here, the only way money damages on an individual-capacity theory 64a can be awarded is on the hasis of such an ‘‘intervening’’ decision. In light of Anderson, however, the District Court eould not award such damages. Although it is plainly within this Court’s discretion to remand the Anderson issue to the District Court, and we understand that litigation under Anderson may con- tinue below under the panel decision as it now stands, the interests of both appellants and appellees would be served by a prompt decision on the fundamentally legal issue of whether, assuming all the allegations of the complaint could be proved, ‘‘the actions the [plaintiffs] allege [de- fendants] to have taken are actions that a reasonable offi- eer could have believed lawful.’’ 55 U.S.L.W. at 5095 n.6; see also Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986) (per curiam) (citing Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985)). The panel decision it- self permits only one answer to that question: given that a constitutional violation could be stated here only because of the ‘‘subsequent’’ and ‘‘intervening Toussaint opinion,”’ Slip. op. at 3, there is no way the State officers can be held to have known that the complaint here could give rise to a valid cause of action under the Eighth Amend- ment. See generally Rhodes v. Chapman, 452 U.S. 337 (1981); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). Wholly aside from whether the panel wrongly expanded Toussaint v. Yockey to encompass the vague allegations of the instant complaint, see Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986) (idleness that creates ‘‘vio- ‘lence and psychological pain’’ is not an Kighth Amendment : wrong), there is no way, given Anderson, that Harlow immunity can be avoided. For that reason, rehearing 65a should be granted, and the judgment affirmed because no damages could be awarded in light of the Eleventh Amend- ment and the decision in Anderson. C. Rehearing or En Banc Review Should Be Granted to Correct the Error of the Motions Panel in Completely Rejecting Our Claim That the Damage Claims Here Were Settled by the Consent Decree in Spear v. Ariyoshi, No, 84- 1104 (D. Haw. 1985). Although the panel that decided the merits of this case was quite charitable when it came to giving the plain- tiffs every chance to prove their claims, the two-judge motions panel that rejected our claim that ‘‘the resolu- tion of identical issues by consent makes the issues in the instant appeal moot,’’ Motion to Dismiss Appeal for Moot- ness at 2, No. 84-1538, was much more confident of its ability summarily to resolve fact issues. This confidence was misplaced. In ruling that ‘‘{t!he claim for monetary relief is not moot,’’? Order, No. 84-1538 (9th Cir. July 11, 1987), the motions panel misread the consent decree, mis- applied the doctrine of res judicata, and mistook its role in passing upon suggestions that there is no ‘‘ease’’ or ‘feontroversy’’ under_Article III of the Constitution. First, the motions panel’s ruling that the consent de- eree does not resolve this case could not be more wrong. As stated in the waiver clause of the decree, the parties in Spear v. Artiyosht distinguished between ‘‘individual claims for declaratory, injunctive, and/or monetary re- lief,’’ which were saved, and claims for group relief, mone- tary or not, which were not: N. By entering into this Decree, plaintiffs and mem- bers of the plaintiff class are not waiving any rights 66a to pursue individual claims for declaratory, injunc- tive, and/or monetary relief. The only claims against defendants settled herein are claims for injunctive relief of a general nature as detailed in the complaint filed in this case and which are applicable to more than the individual circumstances of a particular plaintiff class member. Consent Decree at 8, Spear v. Ariyoshi, No. 84-1104 (D. Haw. June 12, 1985), Ex. ‘‘A’’ to Motion to Dismiss Ap- peal for Mootness, Akao v. Shimeda, No. 84-1538 (9th Cir. June 21, 1985). This language makes clear that monetary claims for injuries common ‘‘to more than the individual circumstances of a particular plaintiff class member,’’ such as the overcrowding alleged in the instant complaint, were waived. If they were not, no purpose whatever would 5 have been served by the language specifying that claims ‘‘which are applicable to more than the individual cireum- stances of a particular plaintiff class member”’ were waived. Just as it is wrong in statutory cases not ‘‘to give effect to all parts of a statute,’’ Camara v. Agsalud, 67 Haw. 212, 215, 685 P.2d 794, 797 (1984), so too was it wrong to read the ‘‘more than individual cireumstances’’ language as superfluous. The plaintiffs in Spear, repre- sented by the wellknown National Prisons Project of the American Civil Liberties Union, were well-informed of the rules that make it hard to obtain damages in overcrowding cases, and, for that reason, had no trouble waiving dam- ages for such collective claims.' : The motions panel’s error is also clear from the face of its July 11, 1985, order. Whereas the motions panel seemed to hold that the only claims waived were those that fell within A (Continued on following page) 67a \ This is so regardless whether the Spear case was brought as a damages action. For it is a hallmark of the rule of res judicata that settlement of comprehensive liti- gation such as Spear precludes further litigation of any demand that might have been sustained under the cause of action. See Nevada v. United States, 463 U.S. 110, 129-31 & n.12 (1983) (citing Restatement (Second) of Judgments § 24 (1982)). The cause of action here, as in Spear, was principally for prison overcrowding at the Oahu Community Correctional Center. The consent decree provisions relating to population levels are the most de- tailed in the decree, and, if they can be enforced under Washington v. Penwell, 700 l'.2d 570 (9th Cir. 1983), repre- sent enormous concessions on the part of the State. See Consent Decree Part I. It is apparent that the claims for crowding in this ease were ‘‘related in time, space, origin, or motivation,’’ Nevada v. United States, supra, to the Spear facts, and would have been tried to the Spear trier of fact had Spear gone to trial. The panel should never have reached the merits here. (Continued from previous page) both clauses of the second sentence of the consent decree’s waiver provision, in its order the motions panel went beyond the plain language of those clauses to hold that claims for ‘‘in- junctive and declaratory relief are moot.” /d. (emphasis added). The motions panel itself thus recognized that the waiver provi- sions demanded interpretation; on that finding, however, the case should have been remanded to the lower court. Indeed, the appellants were of the view that the consent decree presented sufficiently substantial issues to warrant seri- ous consideration whether to dismiss the appeal themselves. See the uncontested Affidavit of Glenn S. Grayson { 2, No. 84- 1538 (9th Cir. Jan. 12, 1987) (stating that counsel for plaintiffs admitted that plaintiffs were ‘seriously considering dismissing this appeal because the issues on appeal may be rendered moot by the consent decree entered into in Spear’). ’ 68a At the very least, the motions panel, as the United States Supreme Court routinely does when it appears that there is no controversy on appeal, see, e.g., Town of Lock- port v. Citizens for Community Action, 431 U.S. 259, 263, 264 n.9 (1977); Ellis v. Dyson, 421 U.S. 426, 435 (1975), should have remanded the case to the District Court so that that Court could make trial findings bearing on the waiver clause in the Spear consent decree. Surely, given the reasonableness of our view of the consent decree, that would be the result if the District Court in the first in- stance had rendered a summary judgment to the plaintiffs rejecting a defense of res judicata. See National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983) (quoting Castaneda v. Dura-Vent Corp., 648 F.2d 612, 619 (9th Cir. 1981)); cf. A & A Concrete v. White Mountain Apache Tribe, 781 F.2d 1411, 1414 (9th Cir. 1986) (res judicata is a ‘‘mixed question of law and fact’’) (emphasis added). The result should be no different here when the ground for bar was not available until the case was on appeal and we pleaded settlement nine days after its entry in the lower court. See Maryland v. United States, 381 U.S. 41, 53 n.38 (1965). For the foregoing reasons, rehearing or en banc re- view should be granted to correct the fundamental mis- reading of the Spear consent decree, which generates a windfall to the Spear plaintiffs, usurps the factfinding province of the District Courts, and portends extraordi- nary hardship to the State of Hawaii as it seeks to operate its prisons in accordance with constitutional principles and an ongoing consent judgment. 69a D. Rehearing or En Banc Review Should Be Granted To Amend that Part of the Panel Decision That Holds, Contrary to Numerous Circuit Decisions, and Recent Supreme Court Authority, that Attorneys Fees Can Be Had at this Stage. A third and independent ground for rehearing or en banc review arises from the panel decision authorizing ap- pellants’ counsel immediately to ‘‘move for attorneys’ fees and costs pursuant to 42 U.S.C. §1988.’’ Slip op. at 4. Even if all our other claims on rehearing are denied, re- hearing should be granted, and this part of the decision amended, to make clear that no attorneys fees may be awarded until appellants ‘‘receive at least some relief on the merits of [their] claim.’’ Hewitt v. Helms, 55 U.S.L.W. 4908, 4909 (U.S. June 19, 1987) (citing Hanrahan v. Hamp- ton, 446 U.S. 754, 757 (1980)). To the degree the panel decision holds to the contrary, it is in plain conflict with Hewitt and Hanrahan, as well as many eases in this Cir- cuit. See Jensen v. City of San Jose, 806 F.2d 899, 901 (9th Cir. 1986) (en bane) (citing, e.g., Escobar Ruiz v. I.NS., 797 F.2d 1294 (9th Cir. 1986); Ward v. County of San Diego, 791 F.2d 1239 (9th Cir. 1986); United States v. 2.61 Acres of Land, 791 F.2d 666 (9th Cir. 1985)). To the de- gree decisions such as Mantolete v. Bolger, 791 F.2d 784 (9th Cir. 1986), in any way support appellants, we respect- fully suggest they have been overruled by Hewitt v. Helms, supra. Ill. CONCLUSION For the reasons above, defendants-appellees urge that rehearing or en banc review be granted. On rehearing, the Court should affirm the judgment below, or, in the altern- ative, rernand the case for proceedings to determine if plaintiffs’ claims for monetary relief have been waived, 70a and those defenses preserved by the panel decisions. In addition, the ruling that plaintiffs may seek attorneys fees should be vacated in light of Hewitt v. Helms, No. 85-1630 (June 19, 1987). Dated: Honolulu, Hawaii, July 3, 1987. WARREN PRICE, ITI Attorney General State of Hawaii /s/ STEVEN S. MICHAELS GLENN S. GRAYSON STEVEN S. MICHAELS Deputy Attorneys General Attorneys for Defendants-Appellees CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing were duly served upon the following by depositing the same in the United States mails, first class postage prepaid, on July 3, 1987, addressed as follows: Emmet Akao 2199 Kamehameha Highway Honolulu, Hawaii 96819 Charles R. Breyer William H. Orrick, III Thomas J. Eicher Coblentz, Cahen, McCabe & Breyer One Embarcadero Center Thirty-Fifth Floor San Francisco, California 94111 (Attorneys for Appellants) Dated: Honolulu, Hawaii, July 3, 1987. /s/ Steven S. Michaels Deputy Attorney General 7la APPENDIX M IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EMMET AKAO, ALLEN V. TRIPP, AND GARRICK UMIAMAKA, Plaintiffs-Appellants, v. EDWIN T. SHIMODA, et al., Defendants-Appellees No. 84-1538 DC #83-1067-SPK Hawaii (Honolulu) ANSWER TO PETITION FOR REHEARING AND SUGGESTION OF THE APPROPRIATENESS OF REHEARING EN BANC ADDENDUM DECLARATION OF COUNSEL FILED AUGUST 24, 1987 CATHY A. CATTERSON CLERK, U.S. COURT OF APPEALS CHARLES R. BREYER WILLIAM H. ORRICK, III COBLENTZ, CAHEN, McCABE & BREYER One Embarcadero Center Thirty-Fifth Floor San Francisco, California 94111] Telephone (415) 391-4800 Attorneys for Plaintiffs-Appellants 72a INTRODUCTION On October 7, 1983, three inmates at the Oahu Com- munity Correctional Center filed a complaint in the United States District Court, District of Hawaii, alleging pur- suant to 42 U.S.C. § 1983 that they were injured by over- crowded conditions which had increased stress, tension, communicable diseases and violence among prisoners. (Complaint, 112.) Defendants, prison officials, moved to dismiss for failure to state a claim, and the District Court granted their motion without allowing plaintiffs the oppor- tunity to amend. This Court reversed, observing that al- though plaintiffs’ allegations were not sufficiently specific to state a cause of action, it was not ‘‘beyond doubt’’ that eo they could do so by amendment. Akao v. Shimoda, No. 84-1538, slip op. at 3 (9th Cir. June 19, 1987) [hereinafter ‘*the Opinion’’}. Having lost the appeal, defendants raise for the first time the issue of whether sovereign or qualified immunity forecloses plaintiffs’ claims in their Petition for Rehearing and Suggestion of the Appropriateness of Rehearing En Bane.* Defendants’ arguments are simultaneously too late and premature. The rule that this court will generally not consider an issue raised for the first time on appeal, Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. * Defendants have not argued that the Opinion directly con- flicts with an existing opinion by another court of appeals or substantially affects a rule of national application in which there is an overriding need for national uniformity, nor advanced any other reason why a rehearing en banc is appropriate in this case concerning pleading requirements for pro se plaintiffs. See Rule 35(a), Federal Rules of Appellate Procedure and Rule 12, Rules of the United States Court of Appeals for the Ninth Cir- cuit. em 73a 1985), applies with special force to issues raised for the first time in a petition for rehearing. Further, for four years defendants have argued that plaintiffs’ claims are too vague. The facts needed to adjudicate defendants’ im- munity defenses have neither been pleaded nor been sub- ject to discovery. Until a complaint which states a claim for relief is on file, there is no record on which to make a determination regarding immunity. Defendants also contend that plaintiffs’ claims are moot because of a consent decree in Spear v. Ariyosht, No. 84-1104 (D. Haw. June 12, 1985), a class action concerning prison conditions in Hawaii. The language on which de- fendants rely, however, clearly permits plaintiffs to liti- gate their individual claims for damages. As a result, the Court should deny defendants’ petition and permit plain- tiffs to amend their complaint.* ARGUMENT I WELL ESTABLISHED AUTHORITY IN THIS CIRCUIT REQUIRES THAT PLAINTIFFS BE PERMITTED TO AMEND THEIR COMPLAINT It has long been the rule in this Cireuit that pro se plaintiffs in civil rights actions who are confined in prison should be granted the opportunity to amend their com- plaints before dismissal for failure to state a claim unless it clearly appears from the complaint that the deficiency *Defendants have also urged that plaintiffs are not entitled to attorneys’ fees merely because they prevailed on appeal. The Opinion, while preserving plaintiffs’ right to pursue their claim, does not provide relief on the merits. Accordingly, plaintiffs agree that they are not entitled to attorneys’ fees at this time. 74a cannot be overcome. Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970); Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965). As Judge Duniway wrote in Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962): The claim may be, as appellees assert, entirely spur- ious. The complaint may well! not state a claim upon which relief can be granted. It may be that appellant cannot amend to state such a claim. But those are not the questions before us. The court cannot know, with- out hearing the parties, whether it may be possible for appellant to state a claim entitling him to relief, how- ever strongly it may incline to the belief that he can- not.... The right to a hearing on the merits of a claim over which the court has jurisdiction is of the essence of our judicial system, and the judge’s feeling that the case is probably frivolous does not justify by- passing that right. The Opinion is consistent with this authority. It is not ‘‘bevond doubt’’ that plaintiffs camnot state a claim. Opinion at 3. It is not ‘‘bevond doubt’’ that defendants are not immune from suit. At this stage of the case, the only issue is whether plaintiffs should have been granted the opportunity to amend their complaint. The Court properly decided that they should. Issues of standing, im- munity and inability to state a claim must wait until plain- tiffs revise their complaint. IL. DEFENDANTS’ ARGUMENT REGARDING IMMUNITY IS UNTIMELY Defendants now contend for the first time that this Court should determine that they are either totally immune from suit under the Eleventh Amendment to the United Ja States Constitution, Welch +. Di partment of Hial waUs, DD U.S.L.W. 547 (U.S. June 25, 1987), or that their qualified immunity from suit in their individual capacities requires the same result. Anderson v. Cretghton, 55 U.S.L.W. 5092 (U.S. June 25, 1987) Each argument rests on defendants’ hypothesis of what plaintiffs will allege when they amend the complaint. Neither argument is ripe until the amend ment has been made. This Court will generally not consilder an issue raised for the first time on appeal, much less in a petition for re hearing. See Bolker v. Commissioner. 760 F.2d 1039, 1042 (9th Cir. 1985). Three exceptions to that rule exist: [1] in an ‘‘exceptional’’ case when review is necessarv to prevent a miscarriage of justice or to preserve the integrity of the judicial process, [2] when a new issue arises while appeal is pending because of a change in law, or [3] when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed. Id. (Citations omitted.) None of the exceptions apply. Defendants do not contend that the first exception exists here. There is nothing exceptional about the Court’s determination that a pro se plaintiff should have the op- portunity to amend his complaint before its dismissal. Nor have any new issues arisen because of a change in law while this appeal has been pending. Although defendants rely on two cases decided by the United States Supreme Court this June, Welch v. Department of Hiahways and Anderson v. Creighton. neither changed the law concerning the immunity which defendants seek in this action. See 76a Hans v. Louisiana, 134 U.S. 1 (1890) and Harlow v. Fitz- gerald, 457 U.S. 800 (1982). Finally, there are no facts alleged, much less devel- oped, on which the Court can base an analysis of the im- munity questions raised by defendants. Defendants assert (erroneously) that Welch, which concerned the application of §33 of the Jones Act, 46 U.S.C. § 688, stands for the blanket proposition that ‘‘the lower federal courts must assume that damages in official capacity actions against state officials, by state citizens, in actions under 42 U.S.C. 5 1983, are barred.’* Petition for Rehearing at 8. Before addressing that contention, the trial court must first de- termine whether the complaint is brought solely against defendants in their official capacities (which it almost as- suredly is not). Then it must consider whether the State has waived its immunity and consented to suit in federal court. Welch, 55 U.S.L.W.. at 5048. Plaintiffs are entitled to establish through discovery that such a waiver occurred by means of the consent decree in Spear v. Ariyoshi, No. 84-1104 (D.Haw. June 12, 1985) or by other conduct. Until these preliminary questions are resolved through plead- ings and discovery, there is no basis on which to adjudicate defendants’ sovereign immunity defense. There is even greater need for factual development regarding defendants’ assertion that their qualified im- munity for official action immunizes them from suit in their individual capacities. [Whether an official protected by qualified immunity mav be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, Harlow [v. Fitzgerald 457 U.S. 800, 819 (1982)], assessed in light of the legal 77a rules that were“clearly established’ at the time it was taken. Id., at 818. Anderson v. Creighton, 55 U.S.L.W. at 5093. The determi- nation necessary under Harlow v. Fitzgerald depends on what the allegedly unlawful official action is, which has yet to be pleaded. Until it is, it is impossible to know whether the ‘‘elearly established’? legal rules at the time render defendants liable for plaintiffs’ claims. Defendants contend that their duties to piaintiffs un- der the Kighth Amendment could not have been so clearly established that a reasonable official would understand that what they did violated plaintiffs’ rights because Toussain v. Yockey, 722 ©.2d 1490 (9th Cir. 1985), cited in the Opinion, was decided after plaintiffs’ case was filed. That is nonsense. Claims arising under 42 U.S.C. § 1983 for violations of the eichth Amendment did not originate with Toussaint v. Yockey. As demonstrated in the Supple- mental Opening Brief of Appellants, each of the effects of overcrowding alleged by plaintiffs forms the basis of an Eighth Amendment violation and did so at the time the complaint was filed: inadequate shelter and sanitation, Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) ; in- creased violence, id.; and injury to mental well being, Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979). See Supplemental Opening Brief of Appellants at 6-13, Akao v. Shimoda. Whether plaintiffs will be able to state a claim upon which relief can be granted under 42 U.S.C. § 1983 remains ’ to be seen. So does the extent of the defendants’ involve- ment. If plaintiffs allege conditions of the severity of the Arkansas prison system in Hutto v. Finney, 437 U.S. 678 78a (1978), for example, and state how they were personally injured as a result of those conditions, they will be entitled to relief. Until they have had an opportunity to clarify their complaint, it is premature for the Court to consider defendants’ immunity defenses. The irony of defendants’ argument should not escape the Court. In their prior briefs, defendants complained that they did not know what the increase in stress, tension, communicable diseases, and the high increase in econfron- tations between inmates (Complaint, § 12) alleged by plain- tiffs meant in terms of 42 U.S.C. (1983. They could not tell, they argued, whether plaintiffs had been injured by the conditions alleged. Now, without knowing how plain- tiffs were injured or why plaintiffs claim defendants were responsible for those injuries, defendants assert that they are immune. While defendants could ultimately be proven correct, they must wait until plaintiffs amend their com- plaint to find out. Plaintiffs will have to describe ade- quately the roles which the defendants played in causing their injuries in order to state a claim. If they cannot, the trial court may dismiss their case. If plaintiffs state a claim, defendants may adjudicate the immunity issues on summary judgment. Now, without any record on which to base a decision, is not the time to make that determina- tion. III. PLAINTIFFS’ DAMAGE CLAIMS WERE NOT SETTLED BY THE SPEAR v. ARIYOSHI CONSENT DECREE. Defendants also argue that the motions panel erred in determining that plaintiffs’ claims are moot. Their 79a curious areument relies on the following waiver clause, contained in a consent decree which settled Spear v. Ariyo- shi, No. 84-1104 (D.Haw. June 12, 1985), a class action re- garding unconstitutional conditions which existed in the Hawaii state prison system: N. By entering into this decree, plaintiffs and mem- bers of the plaintiff class are not waiving any rights to pursue individual claims for declaratory, injunctive, and/or monetary relief. The only claims against de- fendants settled herein are claims for injunctive re- lief of a general nature as detailed in the complaint filed in this case and which are applicable to more than the individual circumstances of a particular plaintiff class member. Id. at 6. Defendants badly misinterpret the waiver clause. Plaintiffs did not waive any claims for monetary relief: ‘‘members of the plaintiff class are nol waiving any rights to pursue individual claims for declaratory, injunctive, and/or monetary relief.’’ Jd.; emphasis supplied. That sentence is modified to explain that claims for injunctive relief of a general nature are waived: ‘‘The only claims against defendants settled herein are claims for injunctive relief of a yeneral nature as detailed in the complaint filed in this case. ...’’ Jd.; emphasis supplied. The final clause of the second sentence describes more particularly what ‘‘claims for injunctive relief of a general nature as detailed in the complaint’? means—claims which are ap- 80a plicable to more than the individual cirenmstances of a par- ticnlar plaintiff class member.’’ I[d.* The proper interpretation of the waiver clause, as the motions panel found, is that plaintiffs are precluded from bringing an individual action for injunctive relief based on overcrowding in their prison. They are not precluded, however, from bringing an individual action based on over- crowding if they suffered a compensable injury as a re- sult of the overcrowding. If defendants’ interpretation was correct, the consent decree would preclude virtually every individual action pursuant to 42 U.S.C. § 1983 aris- ing in the Hawaii state prison system. One could not com- plain about violence caused by overcrowding, even if he suffered a broken leg in a fight caused by it, or seek to recover from stress caused by overcrowding, even if he suffered a nervous breakdown as a result. Neither the language of the waiver clause nor its intent would allow such a result. The meaning of the waiver clause is clear. The mo- tions panel correctly determined that plaintiffs’ damages action could proceed. That determination should not be disturbed. wide oO * Defendants’ assertion that plaintiffs considered dismissing their appeal because of the effect of the consent decree is a half truth. Plaintiffs’ pro bono counsel learned of the consent decree’s existence, but had not received a copy of it, at the time of the conversation described in the Grayson affidavit. We were unaware of the motions’ panel's ruling, since it was not pro- duced as part of the record we received upon our appointment as pro bono counsel. Once we received the consent decree, it was obvious that plaintiffs’ claims were not moot and we so informed defendants’ counsel. See Declaration of William H. Orrick, IIT, which is appended hereto. Se Sla CONCLUSION The Court’s Opinion should be amended to delete its last sentence, as plaintiffs do not seek attorneys’ fees at b] this time. Otherwise, the Court should deny defendants petition. DATED: August 23, 1987 Respectfully submitted, COBLENTZ, CAHEN, McCABE & BREYER By /s/ William H. Orrick, III William H. Orrick, III Attorneys for Plaintiffs-Appellants ADDENDUM DECLARATION OF COUNSEL I, William H. Orrick, III, declare: 1. I am pro bono counsel for plaintiffs in the above- referenced matter, admitted to practice before this Court, and an associate with the law firm of Coblentz, Cahen, McCabe & Breyer. I have personal knowledge of the mat- ters stated herein and, if called upon to do so, I would and could competently testify to the following facts. 2. In the Petition for Rehearing and Suggestion of the Appropriateness of Rehearing En Banc, defendants refer to a conversation in December, 1986, between their counsel, Glenn Grayson, and Thomas Eicher, a former as- sociate of our law firm who was initially appointed as 82a pro bono counsel in this action. I suggested that Mr. Kicher speak with Mr. Grayson at that time because we had recently discovered the existence of the consent decree in Spear v. Ariyosht, No. 84-1104 (D. Haw. June 12, 1985). We had not yet obtained a copy of it, but as a matter of courtesy did not want Mr. Grayson to spend time respond- ing to our opening brief if we would ultimately have to abandon the appeal. Once we received and reviewed the consent deeree, however, it was clear that plaintiffs’ in- dividual claims for damages were not moot, and we so notified the defendants. 3. As we were not counsel of record for plaintiffs until September 30, 1986, we did not receive the Order of the motions panel of July 11, 1985. (Indeed, I did not see that Order until defendants filed the Petition for Re- hearing and Suggestion of the Appropriateness of Rehear- ing En Bane.) Obviously it is my belief that the motions panel correctly interpreted the consent decree, and we would not have contacted Mr. Grayson in December 1986 if we had been aware of the Order. I declare under penalty of perjury that the foregoing is true and correct and that it was executed in San Fran- cisco, California, on August 23, 1987. /s/ William H. Orrick, III William H. Orrick, IIT --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1343%3A1. Public record. Not legal advice.