Appendix — Carruthers v. Duran
Supreme Court brief1990
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
GARREY CARRUTHERS, GOVERNOR OF NEW MEXICco,
O.L. MCCOTTER, SECRETARY OF CORRECTIONS, and
ROBERT J. TANSY, WARDEN OF THE
PENITENTIARY OF NEW MEXICO,
Petitioners,
Vv.
DWIGHT DURAN, LONNIE DURAN, SHARON TOWERS,
and ALL OTHERS SIMILARLY SITUATED
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOEL I. KLEIN HAL STRATTON *
PAUL M. SMITH Attorney General
RICHARD G. TARANTO RANDALL W. CHILDRESS
ONEK, KLEIN & FARR
Deputy Attorney G l
2550 M Street, N.W. ae sewormey Crenera
Suite 350 CHARLES R. PEIFER
Washington, D.C. 20037 Chief Assistant Attorney
(202) 775-0184 General
PAUL FARLEY
Assistant Attorney General
P.O. Drawer 1508
Santa Fe, New Mexico 87504
* Counsel of Record (505) 827-6000
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TABLE OF CONTENTS
Page
Appendix A
Ceoart GE AMpehls DOCIBIOM .....................cccccecesnecreses la
Appendix B
NIE MINS PINION ncistecictinadiscdsncectnnhdmancnocsnhnnanasain 16a
Appendix C
Court of Appeals Judgment —.................... SPC ae, 46a
Appendix D
DRE CORE SEE ee NOR CMe Oe 48a
Appendix E
Renn Sc Tare Cnet ATE ML EVO en a 196a
—
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APPENDIX A
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 88-1442
DWIGHT DURAN, LONNIE DURAN, SHARON TOWERS, and
all others similarly situated,
Plaintiffs-A ppellees,
V.
GARREY CARRUTHERS, GOVERNOR OF THE STATE OF NEW
Mexico, 0.L. McCCOTTER, SECRETARY OF CORRECTIONS,
and ROBERT J. TANSY, WARDEN OF THE PENITENTIARY
OF NEW MEXICO,
Defendants-A ppellants.
and
MOUNTAIN STATES LEGAL FOUNDATION, Amici Curiae, on
behalf of its members, the State of Kansas, and the
State of Utah.
and
Amici Curiae of the STATES OF HAWAII, OREGON, UTAH,
WASHINGTON, and WYOMING, in support of Appellants.
Appeal from the United States District Court
For the District of New Mexico
(D.C. Civil No. 77-0721-JB)
[Filed Sept. 15, 1989]
2a
Joel I. Klein of Onek, Klein & Farr, Washington, D.C.
(Hal Stratton, Attorney General, Henry M. Bohnhoff,
Deputy Attorney General, James Bieg, Assistant Attorney
General, Santa Fe, New Mexico; Norman §. Thayer,
Saul Cohen, and Stephany S. Wilson of Sutin, Thayer &
Browne, Albuquerque, New Mexico; and Paul M. Smith
of Onek, Klein & Farr, Washington, D.C., with him on
the brief), for Defendants-Appellants.
Elizabeth Alexander, Washington, D.C. (Mark J. Lopez
and Alvin J. Bronstein, National Prison Project of the
ACLUF, Inc., Washington, D.C.; Ray Twohig, P.C., Al-
buquerque, New Mexico; and Mark H. Donatelli of
Rothstein, Bailey, Bennett, Daly & Donatelli, Santa Fe,
New Mexico, with her on the brief), for Plaintiffs-
Appellees.
Paul Farley, Mountain States Legal Foundation, Den-
ver, Colorado; Robert T. Stephan, Attorney General,
State of Kansas, Topeka, Kansas; and David L. Wilkin-
son, Attorney General, State of Utah, Salt Lake City,
Utah, Attorneys for the Amici Curiae, on behalf of the
Mountain States Legal Foundation, its members, the
State of Kansas, and the State of Utah.)
(Warren Price, III, Attorney General, State of Hawaii,
and Steven S. Michaels, Deputy Attorney General, Hono-
lulu, Hawaii; Dave Frohnmayer, Attorney General, State
of Oregon; David L. Wilkinson, Attorney General, State
of Utah; Kenneth O. Eikenberry, Attorney General, State
of Washington; and Joseph B. Meyer, Attorney General,
State of Wyoming, Attorneys for the Amici Curiae States
of Hawaii, Oregon, Utah, Washington, and Wyoming.)
Before SEYMOUR, EBEL, and McWILLIAMS, Cir-
cuit Judges.
—
8a
McWILLIAMS, Circuit Judge.
This appeal is from an order of the United States
District Court for the District of New Mexico denying
the defendants’ motion to vacate certain parts of a con-
sent decree.’ Our study of the matter convinces us that
the district court did not err in denying defendants’
motion to vacate. Accordingly, we affirm.
By a first amended complaint filed July 6, 1978,
Dwight Duran, and others, all inmates of the Peniten-
tiary of New Mexico (“PNM”), instituted a class action
charging that conditions in the penitentiary violated
rights guaranteed them by the United States Constitu-
tion and by federal statutes.? Jurisdiction was based on
28 U.S.C. § 1831. Named as defendants were the follow-
ing:
1. Hon. Jerry Apodaca, Governor of the State of
New Mexico;
2. Charles Becknell, Secretary of Criminal Justice
for the State of New Mexico; *
3. Edwin Mahr, Director of the Corrections Division
for the State of New Mexico;
4. Levi Romero, Warden of the Penitentiary of New
Mexico;
1 The district court’s Memorandum Opinion and Order was pub-
lished and appears as Duran v. Carruthers, 678 F. Supp., 839
(D.N.M. 1988). The background chronology is fully set forth
therein and will not be repeated in great detail here.
°? The first amended complaint also set forth in a second and
third claim violations of the New Mexico state constitution, and
New Mexico state statute. A fourth claim for relief alleged viola-
tions of the United States Law Enforcement Assistant Adminisira-
tion, 49 U.S.C. § 3750(b). However, none of these claims plays any
role in the present proceeding.
8’ The Secretary of Criminal Justice is appointed by the Governor.
4a
5. Robert Montoya, a Deputy Warden of the Peni-
tentiary of New Mexico; and
6. Joseph Lujan, a Deputy Warden of the Peniten-
tiary of New Mexico.‘
Partial consent agreements, covering visitation, access
to legal services, and food services, were signed by the
parties in 1979, and orders reflecting the agreements
were entered by the court. Those partial consent de-
crees are not the subject of this appeal. In February,
1980, a bloody riot occurred in the Penitentiary of New
Mexico in which twelve correctional officers were taken
hostage, thirty-three inmates were killed, at least ninety
were seriously injured, and damage to the prison facili-
ties measured in the millions of dollars.
In this general setting the parties entered into a con-
sent decree which was approved by the district court on
July 14, 1980. This negotiated decree was elaborate, ex-
tending well over 100 printed pages, and by its provi-
sions regulated many aspects of the prison operation. In
provisions not challenged in the present proceeding, the
decree comprehensively regulates the defendants’ conduct
in the penitentiary in the area of (1) food services, (2)
physical facilities, including clothing and personal hy-
giene items provided to inmates, (3) medical care, (4)
mental health care, (5) correspondence between inmates
and outsiders, (6) access to legal resources, and (7)
attorney-client visitations.
On June 12, 1987, the Attorney General for the State
of New Mexico filed a motion to vacate seven parts of
the 1980 consent decree.’ The motion was filed on behalf
of the Hon. Garrey Carruthers, who was then the Gov-
4 All defendants were represented in the district court by the
Attorney General for New Mexico.
5 An earlier motion to vacate the 1980 consent decree in its
entirety was withdrawn.
5a
ernor of New Mexico, and on behalf of the other indi-
viduals named as defendants in the amended complaint,
or their successors. The motion to vacate was signed not
only by the state’s Attorney General, but also by private
counsel located in Albuquerque, New Mexico and Wash-
ington, D.C.
Specifically, the defendants moved to vacate the fol-
lowing portions of the 1980 consent decree:
1, Paragraph 6 in the July 14, 1980 Agreement, except
for the first sentence.*
2. Paragraphs 1 through 15 in the “Classification”
section of the consent decree.
3. Paragraphs 1 through 10, except for the first sen-
tence of paragraph 7 and the second sentence of para-
graph 10 and paragraph 11(f) in the “Maximum Secu-
rity” section of the decree.
® 6. Other than in times of emergency, changed circumstances
may, in the future, justify some changes in this agreement
and the policies attached hereto and the partial con-ent decrees
on file herein. No change or changes may be made which will
lessen the benefits provided by the agreement and the policies
attached hereto and the partial consent decrees on file herein.
Notice will be given to the lawyers for the Plaintiffs at least
thirty (30) days prior to the proposed implementation date.
Said notice will contain the proposed change or changes and
the reasons therefore. Counsel for the Plaintiffs will ascertain
whether, in their opinion, the proposed change or changes in
any way lessen the benefits provided by this agreement or the
policies attached hereto and the partial consent decrees on
file herein. If so, they will notify Defendants of their objec-
tions and the reasons therefore within fifteen (15) days.
Efforts will be made to informally resolve the matter. If the
dispute cannot be resolved, it will be submitted to the court.
The burden will then be on the Defendants to justify that the
change or changes should be made and will not lessen the
benefits provided by the agreement and the policies attached
hereto and the partial consent decrees on file herein before the
change or changes will be allowed.
6a
4. Paragraphs 1 through 11 and 14 through 18 of the
“Inmate Discipline” section of the decree.
5. Paragraphs 1 through 7, 9 through 12, 14 through
18 an¢é the prologue of the “Inmate Activity” section of
the decree.
6 Paragraphs 1, 2, 4(A) and 4(M), except as they
apply to inmates housed in the PNM-Main, or facilities
operated for specialized mental-health care, maximum
security or disciplinary segregation, paragraph 8, as it
applies to provision of cigarettes and tobacco, and para-
graph 11 as such appears in the “Living Conditions”
section of the decree.
7. Paragraphs 1 through 10, 11{E), 13 through 15,
plus the probable cause provision in paragraph 11(D)
and the probable cause and reasonable suspicion re-
quirements in paragraph 12 in the “Visitation” section
of the decree.’
Defendants’ basic position is that the portions of the
consent decree which they seek to vacate are not directly
related to federally created rights nor do they tend to
vindicate federal rights. Rather, the defendants argue
that at best they may relate to, and vindicate, rights
created by the State of New Mexico, and that some
others relate only to better penological practices. Such
remedies, according to the defendants, are beyond the
reach of a federal district court, and should therefore
In greater detail, the contested provisions (1) requires appel-
lants to follow specified procedures and criteria in classifying in-
mates to different security levels, and severely restricts both the
amount of time and the circumstances in which they may use the
“maximum security” classification; (2) sets out the exclusive list of
actions that may form the basis for inmate discipline, as well as
the maximum penalties; (3) mandates that eight hours of voca-
tional or educational activity per day be made available to each
inmate; (4) prohibits, in all prisons and under all circumstances,
the housing of two inmates in the same cell; and (5) compre-
hensively regulates the prison policies on visitations, including the
types of searches that may be made in relation to such visits.
Ta
be removed from the consent decree. In this argument,
defendants place considerable reliance on Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89
(1984), where the Supreme Court held that the Eleventh
Amendment prohibited a federal district court from order-
ing state officials to conform their conduct to state law.
At the outset it should be remembered that in the
instant case there was no trial. We have a first amended
complaint filed July 6, 1978, followed by several partial
consent decrees in 1979, culminating in an elaborate and
all-encompassing final consent decree on July 14, 1980.
Consequently, the first amended complaint should be our
starting point.
In a “preliminary statement” to the first amended
complaint the plaintiffs contend that “the totality of the
overcrowding and other conditions at PNM fall beneath
standards of human decency, inflict needless suffering on
prisoners and create an environment which threatens
prisoners’ mental and physical well-being and results in
physical and mental deterioration and dehabilitation of
the prisoners confined therein, which is both unnecessary
and penologically unjustifiable.” By further prefatory
statement, the plaintiffs asked the district court, after
hearing, to declare that the totality of prison conditions
are unconstitutional under the Constitutions of the
United States and New Mexico and in violation of the
statutes of the United States and New Mexico.
The plaintiffs’ first claim for relief was filed under
42 U.S.C. § 1983 to redress injuries suffered by the
plaintiffs, and the class they sought to represent, for
deprivation by the defendants of rights secured the p!ain-
tits by the first, sixth, eighth, ninth and fourteenth
amendments to the United States Constitution. Specific
constitutional rights allegedly violated by the defend-
ant were the rights to be free from cruel and unusual
punishment, to due process, to religious freedom, to free-
8a
dom of expression and association, to have access to
courts, to privacy, and to equal protection.
A second claim for relief was based on Article II,
section 13 of the New Mexico Constitution prohibiting
cruel and unusual punishment. It was also alleged in
the second claim for relief that the conditions at the
penitentiary violated plaintiffs’ right to freedom of
speech, religion, equal protection, due process, and other
rights guaranteed by Article II, sections 11, 17, and 18
of the New Mexico Constitution.
In their third claim for relief, the plaintiffs alleged
that the several defendants had failed to exercise their
duties to operate the penitentiary in accord with Article
II, section 4 of the New Mexico Constitution and N.M.
Stat. Ann. §§ 42-1-38, 42-1-1.1, 42-1-31.2, 42-9-6(g), and
42-9-6 (h).
The fourth claim for relief was based on provisions
of the United States Law Enforcement Assistance Ad-
ministration, 49 U.S.C. § 3750(b), with the plaintiffs
claiming that they were third party beneficiaries under
contractual arrangements between the Administration
and the defendants.
Under the section heading “factual Allegations,” the
plaintiffs set forth in the first amended complaint the
facts underlying all of their several claims for relief.
Specificaliy, plaintiffs alleged that the penitentiary was
“grossly and inhumanely overcrowded.” According to
the first amended complaint, some of_the prisoners were
forced to live in cells which were approximately 6’ x 9’
in size, with two or more persons being housed in one
cell, and that the majority of the prisoners were housed
in dormitories which were overcrowded, filthy and im-
possible to keep clean. Such overcrowding, plaintiffs al-
leged, destroyed any possibility of privacy and rendered
the quarters unfit for human habitation because of mice,
roaches, vermin, clogged toilets, and the like.
9a
The plaintiffs also complained about food service, physi-
cal and sexual assaults by other prisoners, understaffed
professional, educational and security personnel, im-
proper classification of inmates according to their edu-
cational, vocational and health needs, lack of meaningful
industrial or institutional employment, inadequate rec-
reational activities, unduly restrictive visitation rights
and correspondence policies, inadequate medical and den-
tal care, lack of access to legal books and resources, and
disciplinary proceedings that were devoid of due process.
Based upon the factual allegations, the plaintiffs sought
class action certification, a declaratory judgment that
the “totality of the conditions” at the penitentiary vio-
lated the rights of the plaintiffs established by the con-
stitutions of the United States and of New Mexico and
by both federal and local state statutes, and a prelimi-
nary and permanent injunction directing the defendants
to comply with the various constitutional and statutory
mandates. The plaintiffs also sought to require the de-
fendants to pay the costs of the action, including attor-
neys’ fees pursuant to 42 U.S.C. § 1988.
As above stated, the parties submitted several partial
consent decrees to the district court in 1979, and orders
were entered in accord with the matters agreed to by the
parties. And on July 14, 1980, a final consent decree
was entered by the court reflecting the agreements be-
tween the parties. These orders covered such items as
correspondence policies and practices, attorney-prisoner
visitations, food service, inmate legal access, visitation
rights, classification of inmates, living conditions, inmate
activity, medical care, mental health care, staffing and
training of prison personnel, maximum security classi-
fication, and inmate discipline procedure.
A prefatory statement in the final consent decree stated
that the agreement was voluntarily and mutually agreed
upon as a compromise settlement of the dispute between
10a
the parties. Another statement in the final agreement
between the parties read as follows:
Those policy statements and the partial consent de-
crees on file herein may include specific require-
ments and procedures beyond what is required by
the Constitution of the United States, the Constitu-
tion of the State of New Mexico, the federal Civil
Rights Act, the New Mexico Torts Claim Act, or any
other constitutional, statutory or common law re-
quirement.
Article XI of the United States Constitution * provides
as follows:
The Judicial power of the United States shall not be
construed to extend to any suit in law or in equity,
commenced or prosecuted against one of the United
States by Citizens of another state or by Citizens or
Subjects of any Foreign State.
A literal reading of the eleventh amendment wou!d
appear to bar only suits against a state by a citizen of
another state. However, it has been interpreted to also
bar suits against a state brought by its ewn citizens.
Hans v. Louisiana, 134 U.S. 1 (1890). In the instant
ease, the plaintiffs are citizens of New Mexico, and the
State of New Mexico, as such, is not named as a defend-
ant. The defendants are, however, various state officials,
and the immunity granted in the eleventh amendment to
the state bars a suit against a state official when the suit
is one which, in essence, would operate against the state.
Edelman v. Jordan, 415 U.S. 651 (1974). However the
eleventh amendment does not bar a suit in federal dis-
trict court against a state official seeking injunctive re-
lief where the state official has allegedly violated federal
8 The eleventh amendment was adopted in response to Chisholm
v. Georgia, 2 U.S. 4A (1793) which allowed a suit by two South
Carolinians, on behalf of a British subject, against the State of
Georgia.
lla
law. Ex Parte Young, 209 U.S. 123 (1908). The Elev-
enth Amendment does, however, prohibit a federal dis-
trict court from granting injunctive relief against a state
official who has allegedly violated only state law, as op-
posed to federal law. Pennhurst State School and Hos-
pital v. Halderman, 465 U.S. 89 (1984).
In the instant case, the plaintiffs instituted a suit
against state officials alleging that they violated, inter
alia, the federal constitution and federal statutes. Un-
der Ex Parte Young, supra, the defendants under the
eleventh amendment are not immune from such a suit.
Counsel agrees that those parts of the consent decree
setting forth rules and regulations for prison conduct
which are directly related to federally protected rights,
or tend to vindicate those rights, are proper, and are not
here challenged. However, it is counsel’s further position
that those parts of the consent decrees which defendants
seek to have vacated represent remedies that are not
directly related to federally protected rights, nor do they
tend to vindicate such rights. With the latter proposi-
tion, we disagree.
Arguably, the provisions which the defendants seek to
vacate do relate to, or tend to vindicate, federally pro-
tected rights. In addition, the defendants, by the consent
decrees, waived their right to make plaintiffs establish
at trial that they were entitled to all the relief afforded
them by the consent decrees. In this latte: connection,
the Supreme Court, in Swift & Co. v. United States, 276
U.S. 311, 329 (1928), commented as follows:
Here again, the defendants ignore the fact that by
consenting to the entry of the decree, “without any
findings of fact,” they left to the Court the power to
construe the pleadings, and in so doing, to find in
them the existence of circumstances of danger which
justified compelling the defendants to abandon all
participation in these businesses, and to abstain from
acquiring any interest hereafter.
12a
The defendants’ first request in their motion to vacate
was that paragraph six in the 1980 consent decree be
vacated, except for the first sentence thereof. See n. 3
supra. We regard paragraph six to concern procedure,
rather than substance. It provides that no change which
will lessen the benefits provided by the agreement and
decree may be made, and then goes on to outline the
procedure to be followed when the defendants proposed
to “implement” the decree, namely, 30 days notice to
plaintiffs prior to any implementation, granting plain-
tiffs 15 days to file any objection to a proposed change,
requiring the parties to attempt to informally resolve
any dispute, and providing for unresolved matters to be
resolved by the district court after a hearing wherein
the defendants have the burden of showing that the pro-
posed change is just and will not lessen the benefits pro-
vided by the decree. These procedural safeguards for the
plaintiffs, which the defendants in the consent decree saw
fit to grant, attach to all the remedies provided in the
decree, many of which defendants concede have a direct
relationship to federal rights and which are not chal-
lenged in this case. Such being the case, the district
court, in our view, did not err in refusing to vacate
paragraph six, as requested by the defendants.
The other parts of the consent decree which the de-
fendants seek to have vacated relate to classification of
inmates, maximum security, inmate discipline, inmate
activity, living conditions, and inmate visitation rights.
As indicated, it was, and is, the plaintiffs’ position that
it was the “totality” of the prison conditions, not neces-
sarily any one condition, which violated their federally
protected rights. In our view, each of the matters which
form the basis of this case is a part of that “totality”
and does bear on, or tend to vindicate, federal rights.
Further, by the 1980 agreement and the consent decree
based thereon, the defendants waived their right to trial.
Quite conceivably, if the case iad gone to trial plaintiffs’
evidence might well have established that the remedies
13a
now complained about are indeed tied to federal rights,
or at least tend to vindicate such rights.® But the defend-
ants voluntarily waived their right to insist that the
plaintiffs prove their case in open court.
We reject the defendants’ argument that the Eleventh
Amendment dictates the granting of their motion to
vacate. As indicated, counsel concedes that the district
court had the jurisdiction and authority to grant relief to
these plaintiffs against these defendants where prison
conditions violated federal rights, be they constitutional
or statutory. That concession wipes out much of the
defendants’ Eleventh Amendment argument.’® In Local
® Such a “totality of the circumstances” approach was approved
by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 685-89
(1978).
10 Indeed, there is ample authority for finding that each of the
contested sections vindicates a federal right. In Ramos v. Lamm,
639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981),
this court reaffirmed that there is a constitutional right to be
reasonably protected from constant threats of violence and sexual
assaults from other prisoners. More specifically, this court indi-
cated that, although such a remedy was not warranted under the
facts in Ramos, there may be a point where motility, classifica-
tion, and idleness could constitute an actual violation of the eighth
amendment. Jd. at 566-67.
Similarly, the provisions regarding inmate visitation do not
go beyond what could be ordered by a court. See Pell v. Procunier,
417 U.S. 817 (1974). Indeed, in 1984 the Department of Cor-
rections’ own analysis of the visitation provisions reached the
conclusion that the decree did not go beyond those visitation rights
that could be constitutionally imposed in its absence. Attachment
A to Plaintiff’s Supplemental Response to Defendant’s Motion to
Vacate or Modify the Judgment, filed 1/6/86.
All of the other contested provisions may be similarly justified.
See Rhodes v. Chapman, 452 U.S. 337 (1981) (overcrowding may
be a constitutional violation) ; Ruiz v. Estelle, 679 F.2d 1115 (5th
Cir. 1952) (court may impose prophylactic rules to prevent repe-
tition of constitutional violations).
However, it must be noted that the contested provisions should
not be viewed in isolation, but rather as part of the “totality of
l4a
No. 93 v. City of Cleveland, 478 U.S. 501 (1986), the
Supreme Court in a Title VII case, where a consent de-
cree was entered, spoke as follows:
Accordingly, a consent decree must spring from and
serve to resolve a dispute within the court’s subject
matter jurisdiction. Furthermore, consistent with
this requirement, the consent decree must “com/e]
within the general scope of the case made by the
plaintiff . . . and must further the objectives of the
law upon which the complaint was based. ... How-
ever, in addition to the law which forms the basis
for the claim, the parties’ consent animates the legal
force of a consent decree. ...” Therefore, a federal
court is not necessarily barred from entering a con-
sent decree merely because the decree provides broader
relief than the court could have awarded after trial
(citations omitted).
As stated, central to defendants’ argument is Penn-
hurst State School and Hospital v. Halderman, 465 U.S.
89 (1984). Such reliance is in our view misplaced. The
Supreme Court in Pennhurst held that the Eleventh
Amendment prohibited a federal district court from order-
ing state officials to conform their conduct to state law."
That is not our case. Here, the district court ordered
state officials to conform their conduct to federal law, and
the provisions of the decree which the defendants seek to
vacate tend to vindicate those rights. And even if they
didn’t bear directly on federal rights, the provisions
sought to be vacated come within the rule of Local No. 93
v. City of Cleveland, supra, i.e., (1) the consent decree
springs from and serves to resolve a dispute within the
the circumstances” existing at PNM. Hutto v. Finney, 437 U.S.
678 (1978).
11In Pennhurst, judgment was entered after a “lengthy trial”
and did not, as here, involve a consent decree.
15a
district court’s subject matter jurisdiction; (2) the con-
sent decree comes within the “general scope” of the case
made by plaintiffs in the first amended complaint; and
(3) furthers the objectives upon which the complaint is
based, in which event “the parties’ consent animates the
legal force of a consent decree” and a district court is
not barred from entering a consent decree providing
broader relief than the court might possibly have been
empowered to enter after trial.
Kozlewski v. Coughlin, 871 F.2d 241 (2d Cir. 1989),
resembles our case. In that case state officials appealed
from a consent decree which established procedures and
sanctions governing the suspension and termination of
prison visitation rights, arguing that the sanctions, un-
like the procedures, in the decree were unrelated to the
underlying due process violation, and that accordingly the
Eleventh Amendment barred subject matter jurisdiction.
A divided panel of the Second Circuit rejected that argu-
ment and spoke as follows:
Before entering a consent judgment, the district
court must be certain that the decree 1) “spring[s]
from and serve|s] to resolve a dispute within the
court’s subject matter jurisdiction,’ 2) “come!s]
within the general scope of the case made by the
pleading,” and 3) “further|s] the objectives of the
law upon which the complaint was based. Fire fight-
ers, 478 U.S. at 525 (other citations omitted). These
three conditions are sufficient even if the decree con-
tains broader relief than the court could have awarded
after trial.
Judgment affirmed."
12 The present appeal concerns only the propriety of the district
court’s order denying defendants’ motion to vacate parts of the
1980 consent decree. We are not here concerned with defendants’
right, if any, to have “equitable modification” of that decree.
16a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil No. 77-0721-JB
DWIGHT DURAN, et al.,
Plaintiffs,
v.
GARREY CARRUTHERS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
[Entered Feb. 11, 1988]
The defendants in the above-captioned civil action have
filed a motion seeking to vacate portions of the consent
decree approved and entered by this Court in 1980.’ As
stated in their brief in support of the motion to vacate,
“(d]Jefendants’ fundamental contention is that portions
of the 1980 decree create rights that are not grounded in
federal law and thus cannot be enforced by a federal
court.”” Defendants’ brief, p. 2. The defendants’ motion
relies on the eleventh amendment, and related considera-
1 The entire consent decree was approved and entered on July 14,
1980. Certain portions of the decree, relating to correspondence,
public and attorney visitation, food service, legal access, and visit-
ing, were submitted to the Court in 1979, and were approved at
various times during that year.
17a
tion of comity. The motion has been extensively briefed
by the parties, and has been given prolonged and careful
attention by the Court. Ultimately, as demonstrated in
this Memorandum Opinion, the motion rests on the in-
correct and unsupported conception of the nature of the
eleventh amendment immunity, and a misapplication of
the principle of comity. Although this memorandum may
seem prosaic and somewhat pedantic, for which the Court
apologizes, it is necessary in order to meet the extrava-
gant contentions of defendants.
I. PLAINTIFFS’ FIRST AMENDED COMPLAINT.
On July 6, 1978, the plaintiff class, through counsel,
filed its first amended complaint. The complaint alleges
that “the totality of the overcrowding and other condi-
tions at PNM fall beneath standards of human decency,
inflict needless suffering on prisoners and create an en-
vironment which threatens prisoners’ mental and physical
well-being, and results in the physical and mental dete-
rioration and debilitation of the persons confined therein
which is both unnecessary and penologically unjustifiable.”
First Amended Complaint, {1.° This general allegation
is elaborated upon by extensive factual allegations dealing
with a wide range of conditions and practices alleged to
be in place at the Penitentiary of New Mexico. First
Amended Complaint, {J 15-32.
Following this elaboration, the first amended. complaint
sets forth four claims for relief: first, a claim that the
2 At the time the first amended complaint was filed, the class
definition was limited to all prisoners who are or will be confined
in the Penitentiary of New Mexico, the only prison in the state
other than those confined in minimum security facilities, who are
not part of the class. The Court’s July 14, 1980, order approving
the comprehensive consent decree expanded the class, “by agree-
ment of the parties . . . to include all those inmates who are now,
or in the future may be, incarcerated in the Penitentiary of New
Mexico at Santa Fe or at any maximum, close, or medium security
facility open for operation by the State of New Mexico after June
12, 1980.”
18a
totality of the conditions, alleged in the complaint, vio-
lates the federal constitutional rights of the plaintiff class
secured by the first, fourth, fifth, sixth, eighth, ninth
and fourteenth amendments of the United States Consti-
tution; the second and third claims for relief are based on
state constitutional and statutory law;* the fourth claim
for relief is predicated on the assertion that the plaintiff
class is a third-party beneficiary of a contractual arrange-
ment between the defendants and the United States Law
Enforcement Assistance Administration, pursuant to 49
U.S.C. § 3750.
Il. THE 1980 CONSENT DECREE AND ORDER.
After extensive pretrial proceedings and negotiations,
the parties presented to the Court a comprehensive settle-
ment document entitled Agreement, to which was attached
a series of documents labeled policy statements relating
to various substantive areas of prison operations. This
voluminous document contains mandatory and prohibitive
injunctions, often of great specificity, relating to a broad
range of conditions and practices at the Penitentiary of
New Mexico.
By an order dated July 14, 1980, the Court, finding that
the agreement represented a compromised settlement of
3 The Court’s jurisdiction over the state constitutional and statu-
tory law claims was posited on principles of pendent jurisdiction.
‘The subjects of the consent decree are correspondence, public
and attorney visitation, food service, legal access, visitation, classi-
fication, living conditions, inmate activity, medical care, mental
health care, staffing and training maximum security and inmate
discipline. Critically, each of these areas relates to one or more
of the factual allegations set out in the first amended complaint,
and incorporated into the first claim for relief, predicated on
rights secured by the United States Constitution. First Amended
Complaint, ©€ 15-32 (factua! allegations) and {° 35-34 (First Claim
for Relief). The precise correlation of the portions of the consent
decree and the paragraphs of the first amended complaint is ana-
lyzed in n.21, below.
Se te ee ee eee eens sean
19a
the disputes between the parties, provisionally approved
the comprehensive consent judgment. The J uly 14 order,
which itself was entered by consent, includes standard
prefatory language by which the Court acknowledged that
the defendants disavowed liability and that the parties
agreed to limit the admissibility of the document.
Paragraph 2 of the July 14 order states that the con-
sent decree “may include specific requirements and pro-
cedures beyond what is required by the Constitution of
the United States.” The order provides further for re-
definition of the plaintiff class “to include ell those in-
mates who are now, or in the future may be, incarcerated
in the Penitentiary of New Mexico at Santa Fe or at any
maximum, close or medium security facility opened for
operation by the state of New Mexico after June 12,
1980.”
Finally, the July 14 order directed that notice of the
order and settlement be provided to all members of the
class, pursuant to Rule 23 of the Federal Rules of Civil
Procedure. The July 14 order stated that the Court had
examined the agreement and found that it represented a
compromise settlement of the disputes of the parties.
Following that review, under Rule 23, the Court gave
tentative approval of the decree, stating that its approval
was “provisional until fifteen (15) days after said no-
tice.” The order was to “become final if not rejected
[by the Court] or modified by agreement of the parties
based upon said objections [from the plaintiff class]
within thirty (30) days.”
Pursuant to that provision, the objection process com-
menced. Two objections from the plaintiff class were
submitted to the Clerk, as mandated by the class notice,
but neither objection was sufficient to provoke the Court’s
rejection of the consent judgment. In the absence of a
motion from the parties to modify the judgment, the
July 14 order, approving the consent decree and adopting
it as an order of the Court, became final.
20a
III. PROCEEDINGS SINCE ENTRY OF THE
CONSENT DECREE.
The litigation did not terminate with entry of the con-
sent judgment and order. Since 1980, extensive activity
has taken place within the litigation, including recurrent
allegations by the plaintiff class of contumacious conduct
on the part of the defendants. In 1983, with the agree-
ment of the parties, the Court appointed a special master.
and a deputy special master, pursuant to Rule 53, Fed.
R. Civ. P., to monitor the state of the defendants’ com-
pliance with all remedial orders entered in this cause.
Order of Reference, June 3, 1983. Since that time, the
special master has filed twenty reports on defendants’
state of compliance, totaling more than 2,000 pages set-
ting forth findings of fact as to the state of defendants’
compliance, as well as a volume of over 700 separate find-
ings of fact relating to the state of defendants’ compli-
ance as of early 1986. Those reports have provided a
factual basis for the entry of numerous orders by the
Court approving the special master’s findings. Addi-
tionally, the parties have entered into several stipulations
provoked by the findings of the special master and the
orders of the Court.
Because of the fundamental jurisdictional claim raised
in defendants’ motion to vacate, this history is not rele-
vant to the Court’s consideration of that motion. It serves
to show, however, that it has provided the Court with a
vast factual record in this case which has informed the
Court’s evaluation of the consent decree in determining
the federal constitutional rights of the plaintiff class and
the scope of equitable relief required to redress depriva-
tion of those rights.
IV. DEFENDANTS’ MOTION TO VACATE.
A. Prior Motions
On June 12, 1987, the defendants filed their motion
to vacate portions of the 1980 decree. At the time this
ewe eet ee a
2la
motion was filed, defendants’ motion to modify the de-
cree, and plaintiffs’ motion seeking a finding of contempt
against defendants, both of which were filed in December
1985, were pending before the Court. For the purpose
of those pending motions, the Court had compiled, through
the efforts of the special master, an extensive factual
record describing defendants’ state of compliance, as of
1986, with the outstanding remedial orders.’ Additionally,
in December 1986, the Court heard extensive testimony
relating to the parties’ December 1985 motions.
While the 1985 motions were pending decision, defend-
ants filed, on February 6, 1987, a motion seeking to
modify a single provision of the consent decree requiring
single-celling at all institutions subject to the orders in
this case. Then, while it was pending, defendants gave
notice of their intent to withdraw, without prejudice,
the February 6, 1987, motion to modify. Withdrawal of
that motion was granted in the Court’s order of June 4,
1987. The defendants, by letter to the Court, suggested
that the Court withhold ruling on the pending motiors to
modify the remedial decree until the defendants could
file a different, broader motion. Presumably, the instant
motion to vacate, filed June 12, is that motion.
B. The June 12, 1987 Motion to Vacate
The defendants’ motion to vacate seeks to modify the
1980 decree by eliminating from it all provisions that, in
the view of the defendants, are not based on federal law,
or which cannot be construed plausibly as remedial meas-
ures designed to correct federal constitutional violations.
The defendants contend that the eleventh amendment to
the United States Constitution and derivative considera-
* The process by which that record was described is set out in the
Court’s order of January 10, 1986.
22a
tions of comity require elimination from the decree of any
provisions that do not enforce federal rights.
The defendants essentially contend that “portions of
the 1980 consent decree create rights that are not
grounded in federal law and thus cannot be enforced by
a federal court.” This argument has two essential
threads: first, that federal courts do not have authority
to enter orders against states, or against state officials
acting in their official capacity, except to vindicate fed-
eral rights; and second, that in entering orders designed
to vindicate federal rights, federal courts are constrained
to limit those orders to measures required to protect those
federal rights. The first is based on the principle of
sovereign immunity embodied in the eleventh amendment
to the United States Constitution. The second is based on
judicially created considerations of federalism and comity
which, in defendants’ view, are implicit in, or at least
derivative from, the eleventh amendment princ:ple.
Defendants’ motion to vacate ultimately raises ques-
tions regarding the nature of the eleventh amendment
immunity afforded to states and state officials and the
relationship of that immunity to causes of action and
remedial relief. Additionally, defendants’ motion asserts
that the judicially created doctrine of comity is rooted
in the eleventh amendment and embodies constraints on
the exercise of jurisdiction over causes of action.
Full and fair assessment of these complex, detailed
arguments requires a careful analysis of the eleventh
amendment, sovereign immunity, the nature of federal
constitutional rights, the jurisdiction of federal courts
over causes of action based on state rights, the nature
of comity as a restraint on jurisdiction and/or relief, and
the effect of these considerations when the Court enters
a judgment by consent rather than a judgment following
an adversary adjudication.
7 testa gto) Aa 8
23a
V. THE ELEVENTH AMENDMENT, SOVEREIGN
IMMUNITY AND FEDERAL JURISDICTION.
A. The Eleventh Amendment, Sovereign Immunity—
Federal Rights
The eleventh amendment to the United States Consti-
tution provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of Another State, or by Citizens
or Subjects of any Foreign State.
Although its language is to the contrary, the amendment
has been construed to prohibit suits against a state
brought by its own citizens as well as those brought by
citizens of another state. Hans v. Louisiana, 134 U.S. 1
(1890).° It is established, then, that the eleventh amend-
ment shields the states from suit even when state actions
are alleged to be in violation of the United States
Constitution.
® There is considerable disharmony among the current members
of the United States Supreme Court as to the validity of the hold-
ing in Hans. Justices Brennan, Marshall, Blackmun and Stevens
have expressed their opinion that Hans v. Louisiana, and the de-
rivative holding in Edelman v. Jordan, 415 U.S. 651 (1974), “can-
not be reconciled with the federal system envisioned by [the Con-
stitution].” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 303
(1985) (Justice Blackmun, joined by Justices Marshall, Brennan
and Stevens, dissenting).
Justice Scalia has expressed his view that “the correctness of
Hans as an original matter, and the feasibility, if it was wrong,
of correcting it without distorting what we have done in tacit
reliance upon it, [are] complex enough questions that I am unwill-
ing to address them in a case whose presentation focused on other
matters.” Welch v. Texas Dep’t of Highways & Pub. Transp., 483
U.S. ——, 97 L. Ed. 2d 389, 411 (1987) (Justice Scalia concurring
in part and concurring in the judgment).
Notwithstanding the possible infirmity of Hans, its holding must
be, and is, fully accepted for purposes of the present discussion.
24a
That doctrine, by its terms, undermines the supremacy
of federal law and is therefore in derogation of the
supremacy clause of the United States Constitution. Art.
VI, §2. The Supreme Court avoided this unacceptable
result by its essential ruling in Ex Parte Young, 209
U.S. 123 (1908). In Young, the Court held that the
eleventh amendment does not bar an action against a
state official alleging that the official’s conduct violated
the United States Constitution. In order to redeem the
holding in Young, and thereby secure the supremacy of
federal law, the Supreme Court developed a now-famous
analytical form: when the official actions of a state official
come into conflict with the superior authority of the
United States Constitution, the officer “is in that case
stripped of his official or representative character and
is subjected in his person to the consequences of his
individual conduct. The state has ne power to impart to
him any immunity from responsibility to the supreme au-
thority of the United States.” Ex parte Young, supra at
159-60.7
The legal precept of Ex Parte Young is this: a state
inherently lacks the authority to authorize one of its
officers to act in a manner that violates the United States
Constitution. Therefore, any officer acting in violation
of the United States Constitution is acting ultra vires.
In so acting, the state official forfeits his representative
character, and loses the sovereign immunity that, under
the eleventh amendment, shields official state action from
challenge in federal court. In other words, Ex Parte
Young approves equitable actions against state officials
in their individual capacities for violations of constitu-
7The obvious paradox of this construct—that such actions by
state officials are ‘“‘state action” for purposes of the fourteenth
amendment but not for purposes of the eleventh amendment—has
been recognized by the Court, but has not undermined the vitality
of the principle. See Florida Dep’t of State v. Treasurer Salvors,
Inc., 458 U.S. 670, 685 (1982).
25a
tional rights, the eleventh amendment notwithstanding.
Thus, Ex Parte Young enables plaintiffs to allege “state
action” sufficient to trigger the fourteenth amendment
without automatically raising the bar of the eleventh
amendment.®
It is not always easy to determine when an action in
federal court is against the state, and therefore barred by
the eleventh amendment, and when it is against state
officials acting in contravention of federal rights and
therefore outside the shield of the eleventh amendment.
But, the Court need not explore the nuances of that
inquiry for purposes of addressing the present issue. It
is sufficient to observe that equitable actions against
state officials, seeking prospective injunctive relief to cor-
rect federal constitutional deprivations, are permissible.°
B. The Eleventh Amendment and Sovereign ee
State Rights in Federal Court.
The rationale that supports Ex Parte Young—vindica-
tion of the supremacy of federal rights—does not apply
te actions in federal court in which plaintiffs seek vindi-
cation of rights based on state law. Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89 (1984),
presented the question of “whether a federal court may
award injunctive relief against state officials on the basis
8 This principle is further elucidated in Home Telephone & Tele-
graph Co. v. City of Los Angeles, 227 U.S. 278 (1913) which
establishes the fourteenth amendment as a substantive rule of
conduct binding on state officials individually regardless of whether
or not the state has officially sanctioned their actions.
® Actions of this kind are not barred by the eleventh amendment
even if they will have a significant effect on the state treasury.
Edelman v. Jordan, supra at 660-73. “Such an ancillary effect on
otherwise sovereign affairs of the state is a permissible and often
inevitable consequence of the principle announced in Ex Parte
Young.” Id. at 668.
26a
of state law.” 465 U.S. at 91.'° The Court answered the
question in the negative, noting that
fi]n such a case the entire basis for the doctrine of
Young and Edelman disappears. A federal court’s
grant of relief against state officials on the basis of
state law, whether prospective or retroactive, does
not vindicate the supreme authority of federal law.
We conclude that Young and Edelman are inapplica-
ble in a suit against state officials on the basis of
state law.
465 U.S. at 106.
The holding in Pennhurst is simply stated: the elev-
enth amendment prohibits a federal court from awarding
injunctive relief against state officials on the basis of
state law."
19 The state law claims in Pennhurst were pendant to federal con-
stitutional and statutory claims. After holding that the eleventh
amendment prohibits injunctive relief against state officials based
on state law, the Court in Pennhurst assessed the effect of the
principle on federal court pendant jurisdiction. The Court held that
pendent jurisdiction does not overcome the bar of the eleventh
amendment, noting that “a claim that state officials violated state
law in carrying out their official responsibilities is a claim against
the state that is protected by the Eleventh Amendment. We now
hold that this principle applies as well to state law claims brought
into federal court under pendent jurisdiction.” 465 U.S. at 121.
11 Defendants extrapolate from Pennhurst three significant prin-
ciples:
1. An extension of federal judicial power cannot be predicated
on violation of state law. (This formulation is, of course,
overly broad. The holding in Pennhurst is that the eleventh
amendment proscribes the exercise of federal judicial power
against states on the basis of a state’s own law. There is noth-
ing in Pennhurst to suggest that other forms of pendent
jurisdiction are unconstitutional. )
2. There is a specific constitutional basis for the comity prin-
ciple, with attendant limitations on the situations in which a
consent decree can be treated as a waiver by a state of its
ott ee Ce BAO
27a
VI. THE SCOPE OF REMEDIAL POWER—
COMITY AND EQUITABLE DISCRETION.
The preceding section discussed limitations arising
from the eleventh amendment on the power of federal
courts to assume jurisdiction over suits involving causes
of action based on (a) federal or (b) state law. The
constitutional constraints operate at the most funda-
mental level to deprive federal courts of authority, ab
initio, to take cognizance of legal claims. Apart from
these doctrines, other considerations, arguably implicit
in the constitutional scheme but ultimately creations of
wise judicial policy, restrain federal judicial action in
the determination of remedies. These principles operate
after the threshold question of federal jurisdiction has
been answered in the affirmative and a deprivation of
federal rights has been found to exist. The most com-
mon term for this principle of restraint is comity.
One is hard-pressed to define comity, although the con-
cept pervades contemporary jurisprudence, particularly
in the area of institutional reform litigation. The essence
of comity is restraint, both in adjudicating matters and
in imposing remedies. First, comity requires that federal
courts be reluctant to scrutinize the operations of state
institutions in search of federal constitutional infirmi-
ties. Second, faced with proof of a violation of federal
rights, federal courts should intervene only to the extent
required to vindicate those rights. In doing so, federal
courts should not “impose upon [governmental agencies]
immunity from excessive federal decrees. (This is an unsup-
ported conclusion; the error, which is at the heart of defend-
ants’ argument, is discussed at length in Section VIII, below.)
3. The eleventh amendment creates a jurisdictional limitation
on federal judicial power, thereby rendering decrees entered
in violation of that limitation void. (This principle as stated
is correct, but is inapplicable to the present case for reasons
discussed at length in this memorandum. )
See Defendant’s brief, p. 12.
28a
their views of what constitutes wise economic or social
policy.” Dandridge v. Williams, 397 U.S. 471, 486
(1971).°
These considerations of restraint in no way vitiate the
fundamental constitutional tenet that federal courts are
empowered to vindicate federal rights, notwithstanding
sovereign immunity or judicial restraint. Defendants’
ignore the distinction in the comity principle between
restraint in adjudicating claims and restraint in formu-
lating remedies, a critical distinction explicitly acknowl-
edged in the authorities relied upon by the defendants.
For example, in their brief, the defendants cite Smith v.
Sullivan, 611 F.2d 1039, 1045 (5th Cir. 1980), for the
proposition that “courts ... may not become enmeshed in
the minutiae of prison operations” (internal citations
omitted). In Smith, however, the quoted passage is im-
mediately preceded by the obvious qualification, “unless
acting to remedy federal constitutional violations as part
of a totality approach.” Jd.
Defendants also rely on Battle v. Anderson, 708 F.2d
1523 (10th Cir. 1983), cert. dismissed, Meacham v.
Battle, 465 U.S. 1014 (1984), as authority for the re-
lated but separate strands of their comity argument—
separation of powers and pragmatic restraint. See De-
12 Defendants correctly point out that the “principle of restraint
is derived from several interrelated concerns.” Defendants’ brief
p. 4. First, the principle of separation of powers cautions against
the usurpation, by the judiciary, of functions properly charged to
the legislative and executive branches of the government. Bell v.
Wolfish, 441 U.S. 520, 548 (1979), Procunier v. Martinez, 416 U.S.
396, 404-05 (1974). Apart from this general principle, practical
restraints dictate that the judiciary should be loath to assume the
task of restructuring the operations of state government. Particu-
larly where the daily operation of a corrections facility is in ques-
tion, the judiciary should not lightly assume responsibility for
making the day-to-day decisions that require a closer familiarity
with the institution than is possessed by the court. See generally
Bell v. Wolfish, supra at 547; Procunier v. Martinez, supra at 405.
ee ee ee
29a
fendants’ brief, p. 6. In Battle, however, the Court of
Appeals for the Tenth Circuit analyzed comity principles
precisely as the Court does here. Recognizing the “reluc-
tance of federal courts to intervene in matters of prison
administration,” the court of appeals nonetheless approved
the district court’s conclusion that the principle of com-
ity “was not a justifiable basis for failure to take cog-
nizance of valid federal constitutional claims relating to
rights secured to inmates by the federal Constitution and
the laws of the United States.” 564 F.2d at 392, citing
Procunier v. Martinez, supra at 817, Cruz v. Beto, 405
U.S. 319 (1972), and Johnson v. Avery, 393 U.S. 483
(1969).
Defendants also rely on a subsequent opinion in Battle
v. Anderson, 708 F.2d at 1523, and quote from that
opinion an article from the Harvard Law Review by
Professor Owen Fiss. Again, the matter is taken out of
context, and ignores the holding of the court. In fact,
the 1983 Battle opinion sets out simply and explicitly a
doctrine of equitable judicial power that serves to coun-
terbalance, and ultimately overcome, whatever limita-
tions might be generated by the principle of comity.
The court observes that “the court, in exercising contin-
uing jurisdiction to achieve structural reform, cannot
terminate its jurisdiction until it has eliminated the
constitutional violation ‘root and branch’.” 708 F.2d at
1538, citing Green v. County School Board, 391 U.S. 430,
438 (1968). Thus, the Court of Appeals for the Tenth
183 Throughout their brief, defendants entwine the concept of
comity with that of separation of powers. For example, defend-
ants quote the Supreme Court’s opinion in Bell v. Wolfish, noting
that intrusive judicial decrees usurp the role preserved under our
constitutional system for the “legislative and executive branches
of our government, not the judicial.”” 441 U.S. at 548. Separation
of powers arguments have no role, however, where properly named
defendants are charged with violations of federal rights and are
held accountable for those violations by injunctions that mandate
specific measures designed to reinstate and protect constitutional
rights.
80a
Circuit has directly applied to institutional reform litiga-
tion the vital principle that a federal court’s equitable
powers are inherently sufficiently broad to allow federal
courts to fashion effective injunctive relief to cure federal
constitutional violations. The nature of the remedy for
deprivation of federal constitutional rights is determined
by the nature and scope of the constitutional violation.
Swann v. Charlotte Mecklenberg Board of Education,
402 U.S. 1, 16 (1971). Once a constitutional violation
is established, remedial decrees may require actions not
independently required by the Constitution if those ac-
tions are, in the judgment of the court, necessary to cor-
rect the constitutional deficiencies. Green v. County
School Board, supra; Milliken v. Bradley, 433 U.S. 267
(1977) (Milliken II); Giimore v. City of Montgomery,
417 U.S. 556 (1974) .™
The principles of equitable breadth and flexibility are
at some tension with the doctrine of comity. This tension,
however, is superficial; ultimately the doctrines are con-
sistent. The preservation of the supremacy of federal
law that animated Ex Parte Young serves as well to
reconcile the facial inconsistency of these doctrines. First,
Ex Parte Young makes clear that federal courts are
authorized to vindicate federal rights, the principle of
sovereign immunity notwithstanding. Second, where fed-
It is worth noting that the holding in Milliken I] foliowed the
Supreme Court’s holding in Milliken v. Bradley (Milliken 1), 418
U.S. 717 (1974), where the Court noted that the Court’s equitable
remedy must be related to “the condition that offends the Consti-
tution.” 418 U.S. at 738. Milliken I and Milliken II therefore
establish the fundamental principle that a remedial decree entered
to correct constitutional violations must be designed as nearly as
possible to correct the constitutional violation and to restore the
victims of unconstitutional conduct to the position they would have
occupied in the absence of such conduct. This formulation is merely
a more elaborate restatement of the principle embraced by the court
of appeals in Battle v. Anderson that constitutional violations must
be eliminated “root and branch.” 708 F.2d at 1538.
ae bemoans,
3la
eral constitutional rights have been traduced, principles
of restraint, including comity, separation of powers and
pragmatic caution, dissolve; federal courts are empowered
and required to design equitable remedies that are effec-
tive to cure constitutional violations. In this tailoring of
remedies, of course, the preferred course is to preserve
as much discretion for state administrators as possible.
Yet, where constitutional rights have been violated, com-
ity does not require, or even permit, a federal court to
countenance those violations. It thus is clear that in
entering remedial decrees, such decrees should be (a)
designed to be effective, (b) tailored to the constitutional
violations, and (c) fashioned to restore victims to their
positions before the constitutional violations. See n. 14,
above. In guaranteeing that federal injunctions will be
effective within these parameters, however, federal courts
should be mindful of state sovereigty and should in-
trude as little as necessary on state prerogatives,
Thus, it is apparent that, whatever restraints are im-
posed by comity considerations, these limitations are not
jurisdictional. Since there is no jurisdictional bar to a
court’s evaluating claims of federal constitutional viola-
tion, even in a setting as delicate as that involving the
operations of a state institution, the consequent limita-
tions on a court’s assessment of a consent decree pre-
sented to the court by the parties, are not jurisdictional.
Indeed, when a remedy has been fashioned with the par-
ticipation and consent of the state, and that remedy is
presented to the court, the role of judicial restraint is
problematic. In such a situation, it is the prison ad-
ministrators themselves who are proposing the remedy.
Absent a limitation on assuming jurisdiction over the
proposed remedy, the court must make two inquiries:
first, is the remedy sufficient to protect the interests of
the plaintiff class? (This inquiry is mandated by Rule
23 of the Federal Rules of Civil Procedure.) Second, is
the relief illegal? Local No. 93 (Firefighters) v. City of
82a
Cleveland, 478 U.S. —, 92 L. Ed. 2d 405 (1986) (a
federal court may enter a consent decree that provides
relief greater than the court might have awarded after
trial, unless the relief is illegal).
VII. PRELIMINARY CONCLUSIONS OF LAW.
Before undertaking a discussion of the weaknesses in
defendants’ jurisdictional argument, certain fundamental
principles, derived from the foregoing discussion, should
be set out.
1. The eleventh amendment bars a suit of any kind
against a state in its own name. Hans v. Louisiana,
supra,
2. The eleventh amendment bars a suit against a state
official when the suit, in essence, is one that would oper-
ate against the state. Edelman v. Jordan, supra,
3. The eleventh amendment bars a suit against the
state official seeking injunctive relief based on state law.
Pennhurst State School & Hospital v. Halderman, supra.
4. The eleventh amendment does not bar a suit against
a state official seeking injunctive relief, alleging that the
state official has violated federal law and seeking only
prospective relief. Ex Parte Young, supra.
5. In fashioning a remedy for constitutional violations,
the court should tailor its remedy to constitutional viola-
tions, yet insure that the remedy effectively cures the
constitutional violations and restores the victims to their
positions before the constitutional violation. Swann v.
Charlotte Mecklenberg, supra; Green v. County School
Board, supra; Battle v. Anderson, supra,
VIII. DISCUSSION.
Defendants’ argument rests on a fundamental confu-
sion and misapplication of two principles: the jurisdic-
tional limitations derived from the e’eventh amendment,
CN i oe
33a
and the equitable considerations derived from the princi-
ple of comity.
Plaintiffs’ first amended complaint, as observed pre-
viously, set forth extensive factual allegations, relating to
virtually every facet of the operation of the Penitentiary
of New Mexico. Plaintiffs’ first claim for relief alleged
that, on whole, the factual conditions at the Penitentiary
of New Mexico deprived the plaintiff class of rights se-
cured by the United States Constitution. As a threshold
matter, then, federal jurisdiction over the civil action
existed by virtue of 28 U.S.C. §§ 1331 and 1343/3).
As a matter of fundamental due process, the defend-
ants had the right to challenge the factual allegations
set out in the complaint and thereby put the plaintiffs
to their proof. Through the adjudicative process, de
fendants had the right to challenge the conclusion of law
that the conditions alleged and proved by the plaintiffs,
viewed in their totality, violated the constitutional rights
of the plaintiff class. By agreeing to the entry of a con-
sent judgment, however, the defendants waived their
right to tria! on the factual allegations and adjudication
of the legal conclusion. See generally Swift & Co. v.
United States, 276 U.S. 311, 316 (1928); Local No. 93
(Firefighters) v. City of Cleveland, supra.
Following the waiver of the right to proof of violation,
the next step in the process of adjudication became the
fashioning of appropriate remedies. The parties pre-
sented to the Court an agreed remedial order. In doing
so, the defendants waived their rights to the restraints of
comity in the selection of equitable remedies."* Indeed,
judicial application of such restraints in the face of a
remedy proposed by the defendants would be anomalous.
This is not to suggest that the defendants waived eleventh
amendment limitations. As set out in this order, because of the
federal basis for the plaintiffs’ claims for relief, those limitations
were not at issue in this action.
34a
Faced with a proposed consent decree, setting out relief
that is the product of agreement of the parties, the Court
is under an obligation to address only three issues:
First, is the complaint, which serves as the sole ju-
dicial cognizable basis for jurisdiction, sufficient to invoke
federal jurisdiction? That inquiry is easily satisfied, as
set out above.
Second, is the relief illegal? Nothing in the consent
decree requires action, or refraining from action, on the
part of state officials in a manner that would violate the
law. Thus, the consent decree does not violate the prin-
ciple established by the United States Supreme Court in
Local No. 93 v. City of Cleveland, supra.
Third, is the relief adequate to protect the interest of
the plaintiff class? As discussed in section II, above, this
inquiry, governed by Rule 23, Fed. R. Civ. P., was con-
ducted and the Court’s conclusion is supported. Thus, the
Court, in exercising power over a civil action that prop-
erly invoked federal jurisdiction, approved a remedial
order the content of which was the product of free,
unhindered, plenary negotiations between the parties.
The defendants’ motion to vacate portions of the order
is based on the assertion that, notwithstanding the ex-
istence of a complaint properly invoking federal jurisdic-
tion and the proper entry of a lawful consent decree,
any pertions of the consent judgment that are not
grounded in federal law, or that cannot plausibly be
viewed as remedies for federal violations, are void as a
matter of jurisdiction. This legal position involves two
distinet errors.'®
16 Another fundamental error—the discussion of waiver—is also
at the heart of defendants’ position. Because this issue is irrele-
vant, it will not be treated in the text. The discussion of waiver in
defendants’ brief contends that any waiver of the state’s sovereign
immunity was unauthorized as a matter of law, and therefore is
ineffective, at least as a constraint on the conduct of successor
35a
Defendants construe Pennhurst as holding that “the
Eleventh Amendment deprives a federal court of the
power to award any relief, injunctive or otherwise,
against state officials sued in their official capacity, ex-
cept where that relief is premised on federal law. De-
fendants’ brief, p. 11. This construction of Pennhurst is
entirely accurate. Defendants’ argument from Penn-
hurst, however, transmutes the pronounced principle into
a limitation on remedy. This distortion is a fundamental
error which undermines defendants’ argument. Careful
analysis of Pennhurst demonstrates that the eleventh
amendment immunity identified and applied in that case
is a product of the cause of action alleged by the Penn-
hurst plaintiffs and relied upon by the Court as a predi-
cate for relief. This critical fact, which is ignered by
defendants, is demonstrated unequivocally at several
places in the opinion. The Court stated the question
before it to be “whether the claim that petitioners
violated state law in carrying out their official duties at
Pennhurst is one against the state and therefore barred
by the Eleventh Amendment.” 465 U.S. at 103 ‘emphasis
in original). The Pennhurst Court concluded “that
Yeung and Edelman are inapplicable in a suit against
state officials on the basis of state law.” Jd. at 106.
Finally, the Court described its holding to be that “fed-
eral courts lack jurisdiction to enjoin state institutions
and state officials on the basis of this state law.” Jd. at
124-25, The clear implication of Pennhurst, however, is
officials. As demonstrated in the text, the state defendants named
in the first amended complaint were not protected from the allega-
tions of that complaint by virtue of sovereign immunity. The com-
plaint alleges federal constitutional violations and seeks injunctive
relief to correct those violations. In the face of such allegations,
and a federal cause of action structured in the manner of the first
amended compiaint, state officials, properly named, do not enjoy
sovereign immunity. Accordingly, the question of waiver of sov-
ereign immunity did not arise in this proceeding. Rather, the rele-
vant waivers were of proof of constitutional violation and of comity-
based constraints in the form of equitable relief.
36a
that entry of relief would be appropriate if necessary to
vindicate the supremacy of federal law.
Defendants also ignore the connection of the holding
in Pennhurst to the cause of action upon which the dis-
trict court ‘predicated its award of injunctive relief.
Moreover, their characterization of Pennhurst as a lim-
itation on the scope of relief in the face of federal viola-
tion is unsupported. Indeed, since Pennhurst involved no
proof of federal violation, any interpretation of Penn-
hurst as a limitation on relief for violations of federal
law is unwarranted.
The mischaracterization of Pennhurst is most clearly
revealed on page 12 of defendants’ brief, where they
assert that “Pennhurst recognized a specific constitu-
tional basis for the comity principle, with attendant lim-
itations on the situations in which a consent decree can
be treated as a waiver by the state of its immunity from
excessive federal decrees.” This assertion is puzzling, for
at least two reasons. First, the Supreme Court specifi-
cally announced that it did not need to reach the issue
0. comity, because it found “the Eleventh Amendment
challenge dispositive.” 465 U.S. at 97. Second, Pennhurst
had nothing to do with a consent decree, and contains no
statement whatever as to the limitation on remedies
agreed to by consent. This critical component of de-
fendants’ argument from Pennhurst is, in fact, unsup-
ported by that case.
Lelsz v. Kavanagh, 807 F.2d_}248, reh’g denied, 815
F.2d 1034 (5th Cir. 1987), similarly does not support
defendants’ argument. In Lelsz, the court of appeals re-
viewed an order entered to enforce provisions of a con-
sent decree that had been entered two years earlier. The
underlying action raised federal constitutional and state
law claims relating to treatment of the plaintiff class
which was comprised of mentally retarded patients
housed in state schools. The consent decree approved by
37a
the court consisted of numerous provisions relating to
treatment of the mentally retarded. Slightly more than
one and one-half years after entry of the consent decree,
the plaintiffs filed a motion for community placement,
alleging that the transfer of members of the plaintiff
class to community facilities was necessary to achieve
compliance with the consent decree. Following a hearing
on the motion, the court entered an order directing trans-
fer to community centers. That order was appealed and
is the subject of the opinion in Lelsz.
The court of appeals vacated the enforcement order.
The court noted first that the order approving the under-
lying consent decree “painstakingly illicits the constitu-
tional or statutory basis for relief afforded in every
significant paragraph of the [consent decree]. That order
readily demonstrates that any rights the class members
may have with regard to community placement were
understood by the district court to originate in, and do in
fact exist in, state law.” 807 F.2d at 1247." This con-
clusion required the court of appeals, pursuant to Penn-
hurst, to conclude that the relief granted was grounded
solely on state law.’®
17 The court concluded on the basis of a clear record, that the
relief in the consent decree was predicated solely on state law. This
conclusion left the question for the Lelsz court as to “whether
the district court may enforce the consent decree beyond the guar-
antees contained in the federal Constitution and laws simply be-
cause it is a consent decree.” The court held ultimately that such
enforcement violated the eleventh amendment. That question is
inartfully formed, however, since the precise question was whether
a district court can enforce a consent decree based solely on state
law. The Lelsz court held that such enforcement violated Pennhurst.
To the extent the Lelsz court answered a broader question, that
answer is dicta. See discussion of /barra v. Texas Employment
Comm'n, below.
18 This conclusion was strongly attacked by Judge Reavley in an
opinion dissenting from the denial of a petition for rehearing en
hance. See 815 F.2d at 1025-27. Seven of the fourteen judges voting
38a
Lelsz has been interpreted in Ibarra v. Texas Employ-
ment Commission, 823 F.2d 873 (5th Cir. 1987). Ibarra
construed Lelszas applying Pennhurst to vacate a portion
of the district court order enforcing the consent decree
when the relief provided by that part of the decree was
grounded solely on state law. 823 F.2d at 877, citing
Lelsz, 815 F.2d at 1034. The Jbarra court held:
Assuming without deciding that Pennhurst would
extend to a federal court order approving a consent
decree, we conclude that Pennhurst does not apply to
the present case because the consent decree is not
based on state law. . . . The concerns about state
sovereignty and the lack of any federal interests that
were critical to Pennhurst are not appropriate when,
as in this case, the issue is one of interpreting
federal law.
Thus, any implication that the Lelsz holding went beyond
an application of Pennhurst to a consent decree based
solely on state law is eliminated dispositively by Ibarra.”
Lelsza, as clarified in Ibarra, then, reads Pennhurst to
hold that a federal court does not, under Pennhurst, have
jurisdiction to approve a consent decree predicated solely
on state law violations since to do so would offend the
eleventh amendment.”” This doctrine has no bearing,
dissented from the denial of the motion for rehearing. Of par-
ticular note is the following portion of Judge Reavley’s dissent:
In a contested case, in which a pendent state-law claim is as-
serted, Pennhurst, requires the federal court to look at the
source of the claim, but where the parties have not separated
their claims and remedies and agree on remedies for both,
Pennhurst itself places no jurisdictional limitation upon the
federal court in enforcing the agreement
Le!sz, 815 F.2d at 1036.
19 Cf. Welsch v. Gardebring, 667 F. Supp. 1284, 1289 (D. Minn.
1987). which is discussed below in note 22.
29 Again, Judge Reavley’s distinction between a pure state law
claim, and mixed claims, is critical but ignored in Lelsz.
39a
however, on the present case. Here, the plaintiffs’ first
amended complaint alleged violations of federal law. In
response to that complaint, the parties agreed to entry
of comprehensive relief. It is literally true that every
substantive section of the consent decree is tied to factual
allegations in the first amended complaint, which form
the factual predicate for plaintiffs’ claim that the totality
of conditions at the Penitentiary of New Mexico offends
the United States Constitution.”
The foregoing discussion produces two clear conclu-
sions, each of which mandates rejection of each separate
strand of defendants’ argument.
First, because the complaint named state officials in
their official capacity as defendants in a suit seeking
purely injunctive relief for federal constitutional viola-
tions, the eleventh amendment did not afford defendants
sovereign immunity. Accordingly, the Court had, and
has, jurisdiction over the civil action. See Welsch v.
Gardebring, 667 F. Supp. at 1288-89.”
21 The following chart demonstrates the relationship between
paragraphs in the first amended complaint and portions of the
consent decree.
Correspondence— {| 28
Public/Attorney Visitation— | 27
Food Service— q] 21
Legal Access— 77 30, 31
Visitation— ~Y 27
Classification— 24
Living Conditions— 7 16, 17, 18, 19, 20
Inmate Activity— 77 19, 24, 25, 26
Medical Care— {| 29
Mental Health Care— | 29
Staffing and Staff Training— 17 22, 23
Maximum Security— {| 23
Inmate Discipline— {| 32
22 In Welsch v. Gardebring, the defendants, in challenging the
court’s jurisdiction to approve a consent decree, made essentially
the same argument which is presented here in defendants’ motion.
The district court’s rejection of that argument is predicated on
40a
Second, because each element of the relief afforded in
the consent decree is tied to a factual allegation in the
complaint asserting federal constitutional violations based
on the totality of the circumstances, the Court had juris-
diction to enter the consent decree.” Thus, defendants’
argument that the consent decree approved by the Court
in this case is void because it abrogates the state’s elev-
enth amendment immunity, is unavailing.
analysis of Pennhurst, Ex Parte Young, and Local No. 93 v. City
of Cleveland, as is done in this opinion.
23 Defendants’ reliance on Washington v. Penwell, 700 F.2d 570
(9th Cir. 1983), is also misplaced. In Penwell, the defendants
sought to vacate a provision of the consent decree that required
the state to find a prisoners’ legal services organization at a defined
level. That provision had been entered by consent in response to
a claim that indigent Oregon prisoners were provided with inade-
quate legal facilities. The court of appeals affirmed the district
court’s decision vacating the challenged portion. In doing so, the
court noted that the provision on its face ran against the State
of Oregon and did not limit the decree to the defendants’ best
efforts to obtain state funding. 700 F.2d at 574. As such, the pro-
vision ran afoul of the eleventh amendment. It has long been
established that a court order running directly against the state
treasury violates the eleventh amendment. See, e.g., Edelman v.
Jordan, supra.
Certain language in Penwell suggests that the funding provision
is unenforceable not only because it runs directly against the state
but also because it is more than is required to alleviate violations
of federal law. This language, however, must be viewed in context
of the full discussion of the case, which notes that “if general
legal services for prisoners were required by the Constitution, we
might be able to enforce this provision, notwithstanding the state’s
protest.” 700 F.2d at 574. That language follows immediately the -
court’s discussion of Edelman and Young. In this context, then,
the Penwell holding must be stated as follows: Where a provision
in a federal court order explicitly runs directly against the state
treasury, and cannot be construed as a provision enforcing federal
law which will have an ancillary effect on the state treasury (thereby
bringing the injunction within the scope approved by Edelman),
the provision is unenforceable. So construed, Penwell does not
apply to the present circumstance. First, there is no provision
in the consent decree in this case that specifically requires funding
——
4la
The second major premise of defendants’ argument is
that even when federal jurisdiction exists, the principle
of comity prohibits the entry of relief, even by consent,
that extends beyond the measures the Court could have
imposed following trial. There is no authority cited by
the defendants or discovered by the Court that supports
this novel proposition. Indeed, the same proposition was
rejected by the United States Supreme Court in Local 93
(Firefighters) v. City of Cleveland, supra.”*
In Firefighters, the Supreme Court reviewed a consent
decree that indisputably granted to plaintiffs substantive
relief that went beyond what could have been granted
following a trial on the merits. Faced with a challenge
that such relief was unauthorized for that the reason,
the Supreme Court rejected the contention. As made clear
by a lengthy discussion of the nature of consent decrees,
the Court concluded that “a federal court is not neces-
sarily barred from entering a consent decree merely
because the decree provides broader relief than the court
could have awarded after a trial.” 92 L. Ed. 2d at 425.
In fact, the Supreme Court held that relief in the form
of a consent judgment is constrained only by principles
of illegality in that a federal court cannot approve relief
that would require a violation of substantive law. There
is. of course, nothing in the consent decree in this case
which requires the defendants to violate any law.
Defendants’ attempt to apply the principles of comity
and restraint to the Court’s review of a consent decree
also suggests a peculiar paradox. Were the Court to re-
by the State of New Mexico. Second, every section of the consent
decree in this case is tied to an allegation of federal constitutional
deprivation.
24 Defendants’ citation to Nelson v. Collins, 659 F.2d 420, 429
(4th Cir. 1981) (en banc), is inappropriate. In Nelson v. Collins,
no constitutional violation was established. Understandably, when
there is no violation, equity has no standing to provide a remedy.
Nelson does not support any other principle.
42a
ject a consent judgment, agreed to by the defendants,
on the basis of comity considerations, it would thereby
be arrogating the authority of duly empowered state offi-
cials to determine the proper operation of state institu-
tions—precisely the judicial act that most offends the
defendants. The essence of the consent decree—its ani-
mation, in the words of the Supreme Court (see Fire-
fighters, supra at 425)—is the consent of the party.
Here, the properly named state officials, following nego-
tiations, freely agreed to provisions that would govern the
operation of the state’s prisons. It would be a bizarre
perversion of the principle of comity to suggest that a
federal court is required, in order to preserve state au-
tonomy, to override the decisions of state officials and
substitute its own judgments.
Several references to defendant’s brief will suffice to
demonstrate the internal contradiction of defendants’ ar-
gument. In footnote 1, page 2, the defendants contend
that “a federal court ordinarily should accept any reason-
able remedial proposal made by . . . defendants,” citing
New York State Association for Retarded Children, Ince.
v. Carey, 706 F.2d 956, 971 (2d Cir. 1983), cert. denied,
464 U.S. 915 (1983). “A federal court is not empowered
to ‘impose upon [governmental agencies] their views of
what constitutes wise economic or social policy.’ ”’ Defend-
ants’ brief at p. 4, citing Dandridge v. Williams, 397 U.S.
471, 486 (1970). Federal courts should exercise “‘scru-
pulous regard for the rightful independence of state gov-
ernments which should at all times actuate the federal
eourts.” Fair Assessment in Real Estate Association v,
McNary, 454 U.S. 100, 111 (1981).*
25 McNary is the only case this Court has discovered that dis-
cussed comity as a jurisdictional constraint. Cf course, McNary
arose in the peculiar and unique context of a challenge to a state
taxing scheme. The restraint on the federal court in such an action
derives from the Tax Injunction Act, 28 U.S.C. § 1341, which pro-
hibits district courts from enjoining state tax activities where
= Se
48a
This Court had no cognizable basis on which to alter
the structure or detail of the negotiated consent judgment
presented to it for review and approval by the parties.**
Given that the civil action was properly before the Court,
its review of that judgment was limited to a determina-
tion of whether any of the relief contained in the decree
was illegal and whether the relief was sufficient to pro-
tect the interests of the plaintiffs’ class. The Court con-
ducted the appropriate review and consequently approved
the consent decree. There is no basis for the Court’s
independent application of its judgment as to the pro-
priety of the specific relief agreed to by the parties in
view of the appropriate presumption that the parties have
negotiated at arms length and have agreed that the struc-
ture of remedies in the consent decree is a fair resolution
of their competing claims.
IX. MODIFICATION.
Defendants’ motion also seeks to vacate portions of the
1980 decree. Although the rule under which this relief
is sought is not explicated, the structure of the argument
makes clear defendants seek relief under Rule 60(b) (4),
Fed. R. Civ. P., which provides that relief from final
judgment should be granted when “the judgment is void.”
See Defendants’ brief, p. 13. As noted earlier, footnote 1
of defendants’ brief suggests that if their comity-based
there is a plain, speedy and efficient remedy in the courts of that
state. See 454 U.S. at 103. See also Tulley v. Griffin, 429 U.S. 68,
73 (1976), quoted in Rosewell \. Lasalle National Bank, 450 U.S.
503, 522 (1981).
26 Indeed, when presented with a consent decree compromising a
class action, the Court is limited to one of two actions: approving
the decree, or rejecting it. It is elemental that in conducting a
Rule 28 review of a proposed class action compromise. the Court
may not substitute its judgments of fairness for those of the
litigants. Plainly, the Court would be without authority to enter a
consent judgment other than that agreed to by the parties, since
the consent of the parties would no longer animate the decree.
44a
arguments are rejected at the jurisdictional level, they
should inform the Court’s assessment of the propriety of
modification. As is made clear in this order, defendants’
jurisdictional arguments seeking vacation of the decree
are rejected in that they are unsupported by existing law.
The Court is mindful, however, that under certain cir-
cumstances, a judgment may be modified or altered in its
prospective application. The potential legal bases for
action of this kind need not be set out here, although the
Court has addressed the issue as a general matter pre-
viously. See Order of October 3, 1986. That order evi-
dences the Court’s awareness of United States v. Swift,
286 U.S. 106 (1932): New York Association for Retarded
Children, Inc. v. Carey (Willowbrook), supra; Newman
v. Graddick, 740 F.2d 1513 (1th Cir. 1984), and related
cases.
The “flexible” approach to modification set out in Carey
and related cases permits the Court to assess requests for
modification that promote the interest of comity by pre-
serving state administrative discretion as to the means of
accomplishing the particular objectives set forth in a
decree. That process, however, involves careful assess-
ment not only of the structure of the order and its rela-
tionship to administrative discretion, but of other factual
considerations including, but not limited to, the state of
compliance with existing orders, the degree to which any
federal constitutional violations have been cured “root
and branch,” and the existence of safeguards to prevent
future violations. That complex inquiry is one the Court
will not undertake in the absence of an appropriate, com-
prehensive evidentiary record and a thorough briefing on
the appropriate standards for modification, to include
the equitable bases for modification and the particular
modification sought.??
*7 The Court is mindful that some endeavor to this end has been
undertaken previously. The defendants, however, terminated that
process by filing the motion that is the <« ubiect of this order.
45a
X. CONCLUSION.
The eleventh amendment does not provide immunity to
State officials from equitable actions based on federal
constitutional rights. The comity limitations urged by
the defendants do not require the Court to interfere with
the considered judgments of parties in the fashioning of
the consent judgment. The defendants’ motion to vacate
will be denied.
Wherefore,
IT IS ORDERED, ADJUDGED AND DECREED that
defendants’ motion to vacate be, and the same hereby is,
denied.
DATED this 11th day of February, 1988.
‘/s/ Juan G. Burciaga
United States District Judge
46a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 88-1442 (D.C. No. 77-0721-JB)
DWIGHT DURAN, LONNIE DURAN, SHARON TOWERS,
and all others similarly situated,
Plaintiffs-Appellees,
V.
GARREY CARRUTHERS, GOVERNOR OF THE STATE OF NEW
Mexico, O.L. McCoTrTerR, SECRETARY OF CORRECTIONS,
and ROBERT TANSY, WARDEN OF THE PENITENTIARY OF
NEW MEXxIco, Defendants-A ppellants,
and
MOUNTAIN STATES LEGAL FOUNDATION, Amici Curiae,
on behalf of its members, the State of Kansas and the
State of Utah,
and
Amici Curiae of the STATES OF HAWAII, OREGON, UTAH,
WASHINGTON, and WyYoMING, in support of Appellants,
JUDGMENT
Entered September 15, 1989
Before SEYMOUR, McWILLIAMS. and EBEL, Circuit
Judges,
47a
This cause came on to be heard on the record on appeal
from the United States District Court for the District of
New Mexico and was argued by counsel.
Upon consideration whereof, it is ordered that the judg-
ment of that court is affirmed.
Entered for the Court
/s/ Robert L. Hoecker
ROBERT L. HOECKER
Clerk
48a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. Civil 77-721-C
DWIGHT DURAN, LONNIE DURAN, and SHARON TOWERS,
and all others similarly situated,
Plaintiffs,
vs.
JERRY APODACA, Governor of the
State of New Mexico, et al.,
Defendants.
ORDER
[Signed July 14, 1980; entered July 15, 1980]
THIS MATTER having come on before the Court on
the agreement of the parties and the Court being advised
that this is a class action proceeding pursuant to Rule
23(b) (1) and (2) of the Federal Rules of Civil Proce-
dure and the class was previously certified as all inmates
who are now, or in the future may be incarcerated in the
Penitentiary of New Mexico at Santa Fe. By agreement
of the parties and because of changed circumstances, the
class is hereby amended to include all those inmates who
are now, or in the future may be; incarcerated in the
Penitentiary of New Mexico at Santa Fe or at any
maximum, close, or medium security facility open for
49a
operation by the State of New Mexico after June 12,
1980; and the Court having examined the agreement
finds:
(1) that the agreement represents a compromised
settlement of disputes between the parties;
(2) that the agreement and the policy statements
attached thereto and the partial consent decrees on file
herein may include specific requirements and procedures
beyond what is required by the Constitution of the
United States, the Constitution of the State of New
Mexico, the Federal Civil Rights Act, the New Mexico
Tort Claims Act, or any other constitutional, statutory,
or common law requirement. The agreement and the
policies attached thereto and the partial consent decrees
on file herein are not to be construed to establish or
change the standard of culpability for civil or criminal
liability of any official, employee. agent, or representative
of the State of New Mexico other than for the sole and
limited purpose of enforcement of the agreement and
the policies attached thereto and the partial consent de-
crees on file herein.
(3) that the agreement and policy statements attached
thereto and the partial consent decrees on file herein
were voluntarily and mutually agreed upon by the De-
fendants and Plaintiffs as a compromised settlement of
disputes between the parties and neither the partial con-
sent decrees, nor the agreement and the policy statements
attached thereto constitute admissions that any previous
or existing condition, policy, procedure, or acts or omis-
sions of the Department of Corrections and the Peniten-
tiary of New Mexico or any state official, employee, or
agent was, or is, in any way improper, negligent, uncon-
stitutional, or in violation of any rights of the Plaintiff
class. Nothing in this Order or in the agreement and
policy statements attached thereto or the partial consent
decree on file herein constitute findings of fact or law
50a
with respect to the claims or defenses of the parties in
Duran v. Apodaca.
(4) that the agreement should not be admissible in
evidence in any proceedings or trials other than for the
sole and limited purpose of enforcement of this agree-
ment and the policies attached thereto and the partial
consent decrees on file herein. Specifically, it is under-
stood and agreed that Rules 407 and 408 of the Federal
Rules of Evidence are applicable to this agreement and
the policies attached hereto and the partial consent de-
crees on file herein.
(5) that the agreement is far and appropriate and
should be confirmed and adopted by the Court.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED as follows:
(1) The agreement of the parties is approved and
adopted in all particulars.
(2) The Defendants, their agents, employees, succes-
sors in office and those acting in concert with them, are
hereby ordered to comply in full with the terms of the
agreement and the policies attached thereto and the prior
partial consent decrees of this Court.
(3) Pursuant to Rule 23(g) F.R.C.P., the Defendants
are ordered to provide notice of this Order and settle-
ment to all inmates presently confined at the Penitentiary
of New Mexico. The notice will include a statement that
the Order and settlement are provisional until fifteen
(15) days after said notice during which time class
members may submit written objections to the Order and
settlement to the Clerk of this Court. Any such objections
will be considered fully by the Court. This Order will
become final if not rejected or modified by agreement of
the parties based upon said objections within thirty (30)
days.
Donne
5la
(4) If this Order and settlement becomes final, the
Court will maintain jurisdiction for such time as is nec-
essary to enforce or modify this Order and settlement
with, if necessary, all appropriate orders including con-
tempt sanction.
Signed this 14th day of July, 1980.
/s/ Santiago E. Campos
United States District Judge
APPROVED BY:
/s/ Ralph I. Knowles, Jr.
Attorneys for Plaintiffs
/s/ Charles Daniels
Attorneys for Plaintiffs
/s/ Ralph W. Muxlow II
Attorneys for Defendants
/s/ David A. Freedman
Attorneys for Plaintiffs
/s/ Jeff Bingaman
Attorneys for Defendants
52a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. Civil 77-721-C
DWIGHT DURAN, LONNIE DURAN, and SHARON TOWERS,
and all others similarly situated,
Plaintiffs,
vs.
JERRY APODACA, Governor of the
State of New Mexico, et al.,
Defendants.
AGREEMENT
COME NOW the parties and stipulate and agree as
follows: |
1. The parties have reached agreement on several areas
of policy and procedure for operation of the Penitentiary
of New Mexico and any other State correctional facility
which- will house class Plaintiffs, except for minimum
security facilities. These areas of agreement are more
fully set forth in partial consent decrees on file herein
and in various policy statements which are attached to
this agreement as Exhibits A through H. These policy
statements will be adopted by the Defendants within
seven (7) days from the date the Court Order approving
this agreement becomes final.
iat
58a
\2. These policy statements and the partial consent de-
crees on file herein may include specific requirements and
procedures beyond what is required by the Constitution
of the United States, the Constitution of the State of
New Mexico, the Federal Civil Rights Act, the New
Mexico Tort Claims Act, or any other constitutional,
statutory, or common law requirement. This agreement
and the policies attached hereto and partial consent de-
crees on file herein are not to be construed to establish
or change the standard of culpability for civil or criminal
liability of any official, employee, agent, or representative
of the State of New Mexico other than for the sole and
limited purpose of enforcement of this agreement and the
policies attached hereto and the partial consent decrees
on file herein.
3. This agreement and the policies attached hereto and
the partial consent decrees on file herein were voluntarily
and mutually agreed upon by the Defendants and Plain-
tiffs as a compromised settlement of disputes between the
parties and neither the partial consent decrees, nor this
agreement and the policies attached hereto constitute ad-
missions that any previous or existing condition, policy,
procedure, or acts or omissions of the Department of
Corrections and the Penitentiary of New Mexico or any
state official, employee, or agent was, or is, in any way
improper, negligent, unconstitutional, or in violation of
any rights of the Plaintiff class. Nothing in this agree-
ment or the partial consent decrees on file herein con-
stitute findings of fact or law with respect to the claims
or defenses of the parties in Duran v. Apodaca,
4. This agreement should not be admissible in evidence
in any proceedings or trials other than for the sole and
limited purpose of enforcement of this agreement and the
policies attached hereto and the partial consent decrees
on file herein. Specifically, it is understood and agreed
that Rules 407 and 408 of the Federal Rules of Evidence
and the Advisory Committee’s notes to Rule 407 and 408
54a
and of Rules 407 and 408 of the New Mexico Rules of
Evidence are applicable to this agreement and the pol-
icies attached hereto and the partial consent decrees on
file herein.
5. In the event of an emergency caused by a riot, fire,
or other events at the facility not caused by the De-
fendants, their agents, employees, successors in office, and
those acting in concert with them which make compliance
with the terms of this agreement and the policies at-
tached hereto and the partial consent decrees on file
herein impossible, it may be necessary to temporarily
suspend certain provisions of this agreement and the
policies attached hereto and the partial consent decrees on
file herein. In such event, the Defendants must formally
declare a state of emergency, and, as soon as practical,
but no later than five (5) days after such declaration,
notify the Plaintiffs and their counsel of the reasons
which necessitated the suspension of such suspended pro-
visions. The Defendants will also notify counsel for
Plaintiffs of the expected duration of such suspension
and the plan of the Defendants to restore said provisions.
If the Plaintiffs or their counsel believe those suspensions
and/or their duration are unjustified, unreasonable, or
taken in bad faith, then they may request appropriate
relief from this court.
6. Other than in times of emergency, changed circum-
stances may, in the future, justify some changes in this
agreement and the policies attached hereto and the par-
tial consent decrees on file herein. No change or changes
may be made which will lessen the benefits provided by
the agreement and the policies attached hereto and the
partial consent decrees on file herein. Notice will be
given to the lawyers for the Plaintiffs at least thirty
(30) days prior to the proposed implementation date.
Said notice will contain the proposed change or changes
and the reasons therefore. Counsel for the Plaintiffs will
ascertain whether, in their opinion, the proposed change
55a
or changes in any way lessen the benefits provided by
this agreement or the policies attached hereto and the
partial consent decrees on file herein. If so, they will
notify Defendants of their objections and the reasons
therefore within fifteen (15) days. Efforts will be made
to informally resolve the matter. If the dispute cannot
be resolved, it will be submitted to the court. The burden
will then be on the Defendants to justify that the
change or changes should be made and will not lessen the
benefits provided by the agreement and the policies at-
tached hereto and the partial consent decrees on file
herein before the change or changes will be allowed.
7. Noncompliance with the agreement and the policies
attached hereto and the partial consent decrees on file
herein shall result in disciplinary action against any non-
complying state employee(s). This provision in no way
limits remedies otherwise available to the parties to
enforce this agreement and the policies attached hereto
and the partial consent decrees on file herein.
8. The parties further agree that as of the date of this
agreement, the Plaintiff class in Duran v. Apodaca shall
be defined as “all persons who are now, or in the future
may be, incarcerated in the Penitentiary of New Mexico
at Santa Fe or at any maximum, close or medium secu-
rity facility opened for operation by the State of New
Mexico after June 12, 1980.” All provisions of this agree-
ment will be followed at those institutions except those
provisions which are not generally applicable and which
are required by unique conditions at the Penitentiary of
New Mexico at Santa Fe.
9. The Defendants will appoint a responsible- person
to report on compliance with the agreement and the poli-
cies attached hereto and the partial consent decrees filed
herein. Such reports will be sent quarterly to counsel for
Plaintiffs.
10. The parties shall submit this agreement to the
Court in full settlement of all remaining issues in this
56a
ease, except costs and attorney’s fees and the parties
shall request that the Court retain jurisdiction for such
time as the Court deems necessary to enforce compliance
with this agreement and the policies attached hereto and
the partial consent decrees on file herein.
11. Any modification of the Order of the Court which
may be made in the future shall modify this agreement
and the policy statements to be consistent with this Order,
as so modified.
/s/ Ralph I. Knowles, Jr.
Attorneys for Plaintiffs
/s/ Charles Daniels
Attorneys for Plaintiffs
/s/ Ralph W. Muxlow II
Attorneys for Defendants
/s/ David A. Freedman
Attorneys for Plaintiffs
/s/ Jeff Bingaman
Attorneys for Defendants
57a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
vs.
JERRY APODACA, et al.,
Defendants.
JOINT REQUEST FOR PARTIAL CONSENT
DECREE
[Filed Apr. 18, 1979]
Come now the parties in the above styled case and
jointly request that the Court enter a partial consent
decree in settlement of those allegations made in the
Amended Complaint in paragraph 28 relating to cor-
respondence policies and practices. The provisions which
the parties have agreed to and which this Court is asked
to approve and adopt as its order are as follows:
1. Policy Statement PNM-77-IM-60001.1, 07-27-77,
Subject: Correspondence Regulations, will be replaced by
the Policy Statement attached to this motion as Exhibit A.
The new policy statement will be provided to all prisoners
as soon as is practical after this order is entered but in
58a
any event no later than 21 days after the entry of said
order.
2. There will be no requirement that prisoners sign a
waiver of their right to object to the opening of their
mail or to take legal action to assure continuing adherence
to constitutional standards in correspondence policies and
practices.
8. The defendants will maintain records for at least
one year after the signing of this order indicating any
documents rejected by the three member Publication Re-
view Panel along with the reasons for the rejection. In
addition, the documents rejected will be retained. The
described records and documents will be made available
to counsel for the plaintiffs to examine at any time upon
reasonable notice. In the event counsel for the plaintiffs
subsequently determine that the policy statement is being
executed in such a manner as to apparently violate con-
stitutional rights of prisoners, they may by appropriate
motion with the Court raise the issues presented for a
determination by the Court and appropriate relief, if any.
4. If the Court adopts §§1, 2 and 3 above then it
should also dismiss the allegations of paragraph 28 of the
Amended Complaint from the trial of this case except for
its retention of jurisdiction to enforce said order.
Submitted by,
/s/ Edwin Macy /s/ Ralph W. Muxlow II
For the Plaintiffs For the Defendants
59a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
vs.
JERRY APODACA, et al.,
Defendants.
ORDER
[Filed Apr. 18, 1979]
The parties to the above styled litigation have pre-
sented the Court with a Joint Request For Partial Con-
sent Decree which would result in a settlement of the
issues raised by the allegations in Paragraph 28 of the
Amended Complaint relating to correspondence policies
and practices. The Court has considered the said Joint
Request and the terms of the proposed settlement and
has determined that the proposed Partial Consent Decree
would be in the interest of justice to the parties and
should be entered.
Wherefore, premises considered, the defendants, indi-
vidually and in their official capacities, their agents, em-
ployees, successors in office and any others acting in con-
cert with them, are hereby enjoined from failing to
implement fully and within the times prescribed each of
the following requirements:
60a
1. Policy Statement PNM-77-IM-60001.1, 07-27-77,
Subject: Correspondence Regulations, will be replaced by
the Policy Statement attached to this order as Exhibit A.
The new policy statement will be provided to all prisoners
and will be operational as soon as is practical after this
order is entered but in no event later than 21 days after
the entry of said order.
2. There will be no requirement that prisoners sign a
waiver of their right to object to the opening of their
mail or to take legal action to assure continuing adherence
to constitutional standards in correspondence policies and
practices.
3. Records will be maintained for at least one year
after the signing of this order indicating any documents
rejected by the three member Publication Review Panel
along with the reasons for the rejection. In addition, the
documents rejected will be retained. The described rec-
ords and documents will be made available to counsel for
the plaintiffs for examination and copying at any time
upon reasonable notice. In the event counsel for the
plaintiffs subsequently determine that the policy state-
ment is being executed in such a manner as to apparently
violate constitutional rights of prisoners, they may by
appropriate motion with the Court raise the issues pre-
sented for a determination by the Court as to what relief,
if any, should be granted.
4. The allegations of Paragraph 28 of the Amended
Complaint relating to correspondence policies and prac-
tices are dismissed from the trial of this case. The Court
retains jurisdiction to enforce this order.
Done this 18th day of April, 1979.
/s/ Santiago E. Campos
SANTIAGO E. CAMPOS
United States District Judge
eee
6la
POLICY STATEMENT
SUBJECT: CORRESPONDENCE REGULATIONS
1. POLICY: It is the policy of this institution to en-
courage correspondence on a wholesome and construc-
tive level between inmates and members of their fam-
ilies, as well as other friends or associates, with no
restrictions except those necessary to insure the
safety and security of the institution and other per-
sons,
. PURPOSE: The purpose of this Policy Statement
is to outline, in specific terms, the regulations ap-
plicable to inmate correspondence.
GENERAL POLICY: Inmates may correspond with
any person and there is no limit upon the number of
correspondents an inmate may have. However, cor-
respondence may be rejected by prison officials pur-
suant to the other rules as stated in this Policy State-
ment.
. MAILING OF LETTERS: Inmates who are indigent
and unable to afford to pay for postage will be pro-
vided with a reasonable amount of postage to be sup-
plied regularly by the institution. Postage for legal
mail of all inmates will be supplied by the institu-
tion.
Outgoing letters for the general population will be
deposited in the corridor mail drop across from the
inmate dining room exit. Letters, except for those
to privileged communicants, will be deposited un-
sealed. Letters must be written in English or Span-
ish except when another language of correspondence
has been approved, in advance, by the Deputy
Warden/Programs. Inmates will not modify institu-
tional stationery in any way and the sender’s name,
62a
number and living quarters assignment must appear
on all outgoing mail.
. INSPECTION OF MAIL: All outgoing mail from
inmates, except for privileged correspondence, will be
inspected for contraband.
Outgoing mail will be read if there is reasonable
cause to believe that the mail contains escape plans,
other plans to commit a crime or to violate institu-
tional rules of regulations, or constitutes a crime in
and of itself.
. REJECTION OF LETTERS: All inmates will be
held responsible for the contents of their outgoing
letters and deliberate violations may result in a mis-
conduct report. Violations of Postal Laws may result
in referral for prosecution to Federal authorities.
Rejected mail may be withheld, photocopied and filed
for future reference.
When any mail is rejected, the inmate and the cor-
respondent will be notified, in writing, as to the rea-
son for rejection and a copy of the notification will
be placed in the inmate’s central file.
Rejected mail notifications must receive final signa-
ture approval of the Deputy Warden/Programs.
Any inmate whose mail is rejected may contest the
rejection through the inmate grievance procedure. -
Outgoing mail will be rejected when the mail con-
tains contraband, escape plans, other plans to com-
‘mit a crime, or to violate institutional rules and
regulations, or would constitute a crime in and of
itself.
Incoming mail will be rejected for the following
reasons:
(a) There is a clear and present danger that the
mail will endanger the internal security of
a
63a
the institution, contains escape plans or other
plans involving the prisoner in the commission
of a crime, or the violation of institutional
rules and regulations, or would constitute a
crime in and of itself.
(b) The mail contains codes or other attempts to
circumvent correspondence regulations.
~
(c) The material is obscene in that it appeals pri-
marily to the prurient interest or is patently
offensive. A three member publication review
panel will be established by the warden with
the authority to approve or reject materials
that are alleged to be obscene. The panel will
have the authority and responsibility to re-
view allegedly obscene publications and cor-
respondence to determine whether cto reject
the documents pursuant to this section.
(d) Junk mail, pamphlets, leaflets, brochures, etc.,
will be judged by the same standards as other
correspondence. However, any incoming mail
not addressed to a prisoner (“occupant”’-type
addressees) may be discarded at the discretion
of prison officials.
7. INCOMING MAIL ENCLOSURES:
Money, in the form of a cashier’s check or money
order, may be sent to any inmate. Cash or personal
checks should not be enclosed.
Photographs will be rejected only pursuant to the
same standards and procedures as *publications.
Photos must be sent in without frames so they can
be properly inspected without damage. An inmate
may not have a picture of him herself, alone, for
security reasons.
Stamps, personal stationery, and _ self-addressed
stamped envelopes are not permitted.
8.
9.
10.
64a
CERTIFIED AND REGISTERED MAIL:
Incoming certified and registered mail for inmates
will be processed as all other mail, but delivered to
the addresses only upon securing a signed receipt
for same.
Outgoing certified and registered mail is permitted if
the inmate sender has the funds to pay ~for such
service.
PRIVILEGED CORRESPONDENCE:
Outgoing letters to attorneys, the courts, elected gov-
ernmental officials, the news media, grand juries,
law enforcement agents or agencies, the Secretary of
Corrections, Corrections Commissioners, and _ the
Parole Board are considered privileged correspon-
dence and will not be opened for inspection.
Letters in this category should be sealed by the in-
mate and dropped in the special box provided for
such letters.
Incoming letters from privileged communicants will
not be opened unless the warden or his designee de-
termines that there is reasonable cause to believe
that it is counterfeit or contains contraband. When
such mail is opened, it will be opened in the presence
of the inmate in an appropriate, secure area of the
institution by the warden or his designee. The re-
quired form will be prepared and the correspondent
and the inmate will be notified by the warden or his
designee that the mail was opened and the reason
for the opening. The notification to the correspon-
dent will be signed by the warden.
CORRESPONDENCE WITH THE CLERGY:
Clergy are not considered privileged correspondents.
11.
12.
65a
Books and magazines will be accepted and delivered
to inmates if they are received directly from the
publisher or vendor. Exceptions to this rule to allow
receipt of books and magazines from other persons
may be made by the warden for reasons of indigence
or other good cause. Such exceptions will not be
based upon the content of the publication.
INCOMING PACKAGES FOR INMATES:
Inmates will be allowed to receive packages if they
are sent directly from vendors and if the contents
are allowed to be retained by inmates and are not
available from the canteen, and unless said items
cannot reasonably be examined for contraband. Ap-
proval for receipt of said packages must be given in
advance by the Deputy Warden/Programs pursuant
to the provisions of this section. All packages shall
be subject to being searched for contraband.
66a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
Vs.
JERRY APODACA, et al.,
Defendants.
ORDER
[Filed Aug. 21, 1979]
The parties to the above styled litigation have presented
the Court with a Joint Request for Partial Consent De-
cree which would result in a settlement of the issues
raised by the allegations in Paragraphs 27 and 30 of the
Amended Complaint insofar as they relate to attorney-
prisoner visitation. The court has considered the said
Joint Request and the terms of the proposed settlement
and has determined that the proposed Partial Consent
Decree would be in the interest of justice to the parties
and should be entered.
Wherefore, premises considered, the defendants, in-
dividually and in their official capacities, their agents,
employees, successors in office and any other acting on
concert with them, are hereby enjoined from failing
67a
to implement fully and within the times prescribed each
of the following requirements:
1. The Policy Statement attached to this motion as
Exhibit A will replace any and all presently existing
policies or practices at the Penitentiary of New Mexico
governing visits by attorneys and/or their agents with
prisoners incarcerated at the Penitentiary of New
Mexico.
2. The new Policy Statement wil! be provided to all
prisoners and put into effect by the defendants as soon
as is practical, but in no event later than 21 days, after
the entry of said order of this Court.
3. The allegations of Paragraphs 27 and 30 of the
Amended Complaint insofar as they relate to attorney-
prisoner visitation are dismissed from the trial of this
case.
4. The Court retains jurisdiction to enforce this order.
Done this 21st day of August, 1979.
/s/ Santiago E. Campos
SANTIAGO E. CAMPOS
United States District Judge
68a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DuRAN, et al.,
Plaintiffs,
Vs.
JERRY APODACA, et al.,
Defendants.
JOINT REQUEST FOR PARTIAL
CONSENT DECREE
[Filed Aug. 21, 1979]
Come now the parties in the above styled case and
jointly request that the Court enter a partial consent de-
cree in settlement of those allegations made in the
Amended Complaint in paragraphs 27 and 30 insofar
as they relate to attorney-prisoner visitation. The pro-
visions which the parties have agreed to and which this
Court is asked to approve and adopt as its order are
as follows:
1. The Policy Statement attached to this motion as
Exhibit A will replace any and all presently existing
policies or practices at the Penitentiary of New Mexico
governing visits by attorneys and/or their agents with
prisoners incarcerated at the Penitentiary of New
Mexico.
69a
2. The new Policy Statement will be provided to all
prisoners and put into effect by the defendants as soon
as is practical, but in no event later than 21 days, after
the entry of said order of this Court.
3. If the Court adopts Sections 1 and 2 above, then it
should also dismiss the allegations of Paragraphs 27 and
30 of the Amended Complaint insofar as they relate to
attorney-prisoner visitation from the trial of this case
except for its retention of jurisdiction to enforce said
order.
Submitted by:
/s/ [illegible] /s/ Ralph W. Muxlow II
For the Plaintiffs For the Defendants
70a
POLICY STATEMENT
[Filed Aug. 21, 1979]
SUBJECT: ATTORNEY VISITATION
Any inmate has the right to consult with an attorney
under reasonable regulations providing for the security
of the institution and the safety of the inmate popula-
tion and staff, as herein stated.
a. Visits by attorneys (or other appropriate persons
acting for an attorney), requested by an inmate, his
family, or other persons acting for and on behalf of the
inmate, to discuss legal matters, shall be permitted. No
inmate or attorney (or other appropriate person) shall
be required to reveal the nature and substance of the
legal matter to be discussed at said visitation. The PNM
reserves the right to utilize appropriate security meas-
ures to determine whether or not an appropriate person,
other than an attorney, fulfills the requirements of this
regulation to meet with a particular inmate. (This class
of persons, who are not attorneys, would ordinarily be
limited to law students, law clerks, investigators, and the
like.) Normally, a written confirmation by an attorney
designating an appropriate person to visit for him or her
will be sufficient to allow the visit. Hereinafter, the term
‘attorney’ includes other such appropriate persons, as
defined.
b. If prior to the initial meeting between attorney and
inmate, prison officials, for some articulable and justifi-
able reason, believe that the visit by said attorney was
not requested by the inmate, his/her family, or person
acting for and on behalf of the inmate, the prison officials
may require a showing that the visit was so requested.
imal
Tla
Any of the following will be deemed sufficient to make
such a showing:
1) A written confirmation by the inmate of the re-
quest ;
2) Production of the part of a written document of the
inmate making the request for the visit;
3) Any other credible information which would estab-
lish that the attorney has responded to a request for a
visit by the inmate, his or her family, or a person acting
for the inmate and on his behalf.
ce. An attorney shall meet with one inmate at a time,
unless it is determined that it would be appropriate for
the attorney to meet with more than one inmate at a par-
ticular time. This would be appropriate in a situation
in which an attorney needs to speak to two or more in-
mates about the same matter. PNM officials will make
the determination as to whether or not it is appropriate
for an attorney to meet with more than one inmate at a
particular time. The attorney who wants to meet with
more than one inmate at a particular time must make
an appropriate request to PNM officials and it will be
considered by PNM officials on the basis stated herein.
d. The Deputy Warden/Programs should be notified by
telephone or in writing by any licensed attorney who
plans to visit any inmate. This notification should be
made by 2:00 p.m. of the work day prior to the visit so
that a written clearance memo can be prepared and the
interview room reserved accordingly. In the event the
visit is denied, the Deputy Warden/Programs will notify
the attorney by telephone with an explanation as to the
denial.
e. Each attorney who plans to visit any inmate under
the attorney client relationship must present bona fide
evidence of his license to practice law, such as a state
bar membership card and matching identification, such
as a driver’s license, ete.
72a
f. Attorneys and inmates wiil make their relationship
known on the initial visit by both signing the attached
form referred to as ‘Form A’. (Form A is solely for
PNM’s internal use and does not limit an inmate’s access
to a particular attorney(s). Moreover, Form A does not
limit the attorney-client relationship to pending litiga-
tion or appeals. The form simply identifies the relation-
ship of attorney and client for record keeping purposes
Should a question arise concerning a future visit by the
attorney).
73a
Form A The Penitentiary of New Mexico
Santa Fe, New Mexico
LEGAL CONSULTATION FORM
I am requesting the following person or persons con-
sult with me concerning legal matters:
Name of attorney (s)
Name of inmate ~
Date
I am the attorney whose name appears above:
Signature
Address
Telephone —-———— State of Bar Membership
ee. Central File
Deputy Warden File Date
g. Regular visitation hours for attorneys are from
8:30 a.m. to 11:30 a.m., 1:00 p.m. to 3:45 p.m. Monday
through Friday only. There will be no regularly sched-
uled attorney visits on legal holidays or weekends be-
cause of lack of staff and crowded social visiting condi-
tions. PNM will attempt to facilitate a visit by a licensed
attorney at times other than those specified herein, de-
pending on staff and space availability, regardless of
whether or not the normal procedures outlined above are
followed. Such a visit must be approved in advance by the
Deputy Warden/Programs.
h. Prison officials may inspect attorney briefcases, tape
recorders, cameras, etc. for contraband. However, prison
officials shall not read the contents of any written ma-
terial contained therein. All inspections of briefcases or
other containers of the attorney shall be conducted in the
presence of the attorney.
74a
i. Documents sought to be exchanged or retained by
the inmate or attorney shall be examined (but not read)
by the Chief Classification Officer or the caseworker (or
the staff member) for the purpose of inspecting for con-
traband or other violations of PNM regulations. In the
event no contraband or other violation of PNM regula-
tions is present, the document or article shall be allowed
to be exchanged or retained by the inmate or attorney.
Witnessing or notarizing of an inmate’s signature can
be arranged by the case manager.
j. The foregoing procedures wili be enforced in the
absence of a bona fide emergency. PNM will make every
reasonable effort to facilitate a visit between any licensed
attorney and his inmate-client in the event of a bona fide
emergency. Such an emergency must be demonstrated
by the inmate or the lawyer to the satisfaction of PNM
officials. An emergency visit must be approved in ad-
vance by the Deputy Warden /Programs.
k. The officials of the Penitentiary of New Mexico will
make these regulations available to inmates and attor-
neys seeking visitation rights. Said officials may also re-
fuse visitation of attorneys or agents who knowingly fail
to comply with them. If prison officials have reason to
believe that an attorney has misrepresented his identity
or qualifications as an attorney in good standing, or the
status of his agent, PNM may refer the matter to the
New Mexico Attorney General’s Office, and in turn, the
matter may be referred by the New Mexico Attorney
General’s Office to the ethics committee of the New Mex-
ico Bar Association or other appropriate bar association.
Se AO OP at
<a 2
75a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et ai.,
Plaintiffs,
v.
JERRY APODACA, et al.,
Defendants.
JOINT REQUEST FOR PARTIAL CONSENT DECREE
[Filed Dec. 7, 1979)
Come now the parties in the above styled case and
jointly request that the Court enter a partial consent
decree in settlement of those allegations made in the
Amended Complaint in paragraph 21 relating to food
service at the Penitentiary of New Mexico (PNM). A
number of the conditions which the plaintiffs allege ex-
isted at the time this lawsuit was filed and to which some
of the provisions of this Partial Consent Decree are ad-
dressed are presently corrected. The provisions which the
parties have agreed to and which this Court is asked to
approve and adopt as its order are as follows:
1. The defendants will make arrangements for a qual-
ified dietician to come to the facility quarterly, examine
76a
the food being served, examine documents showing the
food served, and take appropriate actions, as necessary,
to determine whether the food being served is nutrition-
ally adequate and sanitary.
2. While at the P.N.M. the above mentioned dietician
will meet with food services personnel and one represen-
tative of the Inmate Council selected by a vote of the
members of the Council to discuss issues concerning the
service of food to inmates.
3. A procedure will be established and made available
to all inmates which informs them as to how they might
gain access to meals in accord with legitimate religious
requirements.
4. Provisions will be made to provide adequate diets
to persons with legitimate religious requirements which
meet those requirements.
5. For Muslims and Jews, the corrections officials will
at a minimum:
(A) clearly mark on all menus all foods which
contain pork, pork derivatives, pork by-products, or
pork seasings;
(B) provide three meals a day to inmates who do
not eat pork which are nutritionally adequate and
generally similar in nutritional value to the meals
provided to inmates who do eat pork;
(C) at one meal a day at which pork, pork deriv-
atives or pork by-products are served as the prin-
cipal item, the defendants shall provide a substitute
item which is similar in nutritional value for in-
mates who do not eat pork;
(D) thoroughly cleanse the institution’s dishware
and cutlery so that those items which have come into
contact with pork in any way will be free from pork.
NT EE Ng Re tell A ait
a
77a
6. The defendant corrections officials shall maintain
food to be served warm at temperatures of at least
140° F until the food is actually given to the prisoner to
eat. Food to be served cold shall be maintained at a
temperature of no higher than 45° F until actually
served. These standards will be met not only in the
cafeteria but also in other places where food is served
such as segregation areas,
7. The defendant corrections officials shall maintain
a dishwashing temperature of at least 180° F for the
washing of all items to be used again by prisoners. A
daily log will be kept of temperature readings.
8. The defendant corrections officials shall maintain
sneezeguards on the food service line in the cafeteria.
9. The physical structure of the food service, food
preparation and food storage areas will be rat and rodent
proofed. (E.g., holes and other structural defects allow-
ing the entrance into the area from other locations will
be corrected and thereafter properly maintained.) The
parties acknowledge that while this provision will assist
in keeping rodents out of the food service, it does not
provide an absolute guarantee that no rodent will ever
enter the area.
10. A program of routine daily housekeeping and an
effective roach and rodent extermination program de-
signed to prevent and eradicate roaches and rodents will
be carried out.
11. All windows and doors will have effective screens
placed on them and maintained so as to prohibit the
entry of flies and other animals or insects in the food
service and preparation areas. These screens shall be in
place by the conclusion of the ongoing Phase II Renova-
tion or May 1, 1980, whichever comes first.
12. Handwashing facilities will be provided in the
food service area.
78a
13. No cross connections between the potable water
supply and the waste water system will be permitted in
the food service area.
14. A garbage grinder or waste disposal system so as
to solve problem of waste attracting roaches, rats and
other vermin will be operated in the food preparation
and service areas.
15. A written preventive maintenance program for
the cleaning and maintenance of all food preparation
and service equipment will be utilized.
16. A routine daily cleaning program for the food
service and preparation areas with specific duties assigned
to specific personne] will be utilized.
17. All food service and food preparation personnel
(civilian and prisoner) shall comply with local and state
health regulations for food handlers.
18. The defendants shall provide clean white outer
garments for food service personnel] (civilian or prisoner)
to wear whenever they come into contact with food.
19. The defendant corrections officials will make good
faith efforts to hire the additional two civilian staff mem-
bers the head of food services indicated he needed in
order to be adequately staffed.
20. The defendant corrections officials shall arrange
for a semi-annual inspection of the food service and
preparation areas by the state fire marshall or other
qualified fire safety inspector to insure that these areas
meet the requirements of the state fire code and the
Life Safety Code, shall maintain on file the results of
these inspections and shall provide fire safety equipment
over the grills in the food service and preparation areas.
21. The defendant corrections officials shall comply
with all New Mexico food service, preparation and pro-
tection standards, arrange for at least quarterly inspec-
79a
tions and reports by the state public health office to assure
continued consultation and compliance and maintain said
reports on file at the facility.
22. Inmates who have medical needs for special diets
will be provided with the diet prescribed by the PNM
physician or other PNM authorized medical personnel.
Submitted by:
/s/ [Illegible] /s/ [Illegible]
For the Plaintiffs For the Defendants
80a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
vs.
JERRY APODACA, et al.,
Defendants.
ORDER
[Filed Dec. 7, 1979]
The parties to the above styled litigation have pre-
sented the Court with a Joint Request for Partial Con-
sent Decree which would result in a settlement of the
issues raised by the allegations in Paragraphs 30 and
31 of the Amended Complaint insofar as they relate to
inmate legal access. The court has considered the said
Joint Request and the terms of the proposed settlement
and has determined that the proposed Partial Consent
Decree would be in the interest of justice to the parties
and should be entered.
Wherefore, premises considered, the defendants, in-
dividually and in their official capacities, their agents,
employees, successors in office and any other acting in
Sla
concert with them, are hereby enjoined from failing to
implement fully and within the times prescribed each
of the provisions of the attached Joint Request for Par-
tial Consent Decree and the allegations of Paragraphs
30 and 31 of the Amended Complaint insofar as they
relate to inmate legal access are dismissed from the trial
of this case.
The Court retains jurisdiction to enforce this Order.
Done this 7th day of Dec., 1979.
/s/ Santiago E. Campos
SANTIAGO CAMPOS
United States District Court Judge
82a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
v.
JERRY APODACA, et al.,
Defendants.
JOINT REQUEST FOR PARTIAL CONSENT
DECREE
[Filed Dec. 7, 1979]
Come now the parties in the above styled case and
jointly request that the Court enter a partial consent
decree in settlement of those allegations made in the
Amended Complaint in paragraphs 30 and 31 relating
to inmate legal access. The provisions which the parties
have agreed to and which this Court is asked to approve
and adopt as its order are as follows:
1. The Penitentiary of New Mexico will have avail-
able to inmates housed therein two law libraries. The
law library which is a part of the general prison library
will in the future be utilized by inmates who are not
housed in any of the segregation units of the prison.
— saieas
lo sll ci scsi hilt
;
:
:
:
{
83a
The library located on the top tier of Cellblock 4 will be
utilized by inmates housed in Cellblocks 3 and 4.
2. The general population law library will be open
at least six hours a day on Wednesday, Thursday, Fri-
day, Saturday and Sunday. Unless there are fewer
custodial staff at the prison than are authorized by the
budget, the library will also be open at least 6 hours
a day on Monday and Tuesday. The defendants will also
make good faith efforts consistent with adequate staff
availability to make arrangements so that the library
can be opened at night.
3. The Cellblock 4 library shall be open for at least
four hours per day Monday through Friday. Normally,
inmates housed in Cellblock 4 will utilize the library in
the morning and those housed in Cellblock 3 will utilize
it in the afternoon. The defendants will make good faith
efforts to extend the hours of operation of this library
if inmates are making more requests for the use of the
library than the time provided will allow. This expan-
sion of the hours of the operation of the library may be
contingent upon the availability of a full complement of
authorized staff. Inmates housed in segregation units
will not be required to forfeit time allotted for recreation
in order to use the library.
4. The defendants will assure that all inmates at the
Penitentiary of New Mexico have reasonable access to
one of the law libraries pursuant only to the notice pro-
visions of {5 below. Permission to visit either library
will not be subject to an approval basis.
5. Inmates desiring to utilize the general library will
gain access through notification of their case-manager or
other person designated by the prison authorities. In-
mates desiring to utilize the Cellblock 4 library will sub-
mit a request to the officer in charge of the unit. The
inmate requesting to use either library will be given
84a
access at the next available time. In any event, the in-
mate will be given access to the library within the next
two working days. (A working day is a day the library
is open.) Additional emergency requests for use of the
law libraries will be granted if possible by the Associate
Warden for Inmate Management, Deputy Wardens or
other designated officials. Access will be on a first-come,
first-serve basis and requests will be granted until the
capacity limits of the libraries are reached.
6. As in the present practice of officials at the Peni-
tentiary of New Mexico, inmates will not be handcuffed
while they are using the law libraries.
7. Job positions as legal assistants will be created in
each law library. They will be paid in accordance with
the incentive pay program at the penitentiary. They will
be given training. There will be a legal assistant on duty
during the normal operations of the libraries. Spanish-
speaking legal assistants will be available to those Span-
ish-speaking inmates who cannot adequately understand
the English language. Efforts to facilitate titilization
of paralegal personnel from civilian sources will be pur-
sued by the defendants.
8. Typewriters in useable condition will be maintained
in each library for use in preparing legal documents. In
addition to typing paper, carbon paper and onion skin
or other suitable paper for extra copies will be made
available by the defendants.
9. Forms utilized for filing cases in federal and state
courts (e.g., forma pauperis, habeas corpus, civil rights,
ete.) will be made available for inmates in both libraries,
except when such forms are not available from the
courts.
10. At least one tape player will be made available
in each library for use by inmates whose trial transcript
or other legal matters are on tapes.
85a
11. A copying machine will be made available through
the case manager or staff librarian, who will do the copy-
ing for the inmates, of documents pertaining to legal
matters at a price no higher than the cost to the Peni-
tentiary for making the copies. Provisions will be made
to assure that the confidentiality of documents relating
to legal matters are preserved.
12. The general population law library will contain at
least those books which are listed on Exhibit 1 attached
to this document plus all volumes of Federal Supplement
and Federal Reporter published since January 1, 1960;
Modern Federal Practice Digest and West’s Federal
Digest 2d; and the relevant volumes of United States
Code Annotated including those volumes relating to juris-
diction and procedure, crimes and criminal offenses, civil
rights actions and constitutional law.
13. The Cellblock 4 law librarv will include at least
those volumes listed on Exhibit 2 attached to this
document.
14. All books or services which provide or require
supplementary updating pocket parts of volumes will be
kept up to date. If volumes or treatises become outdated,
they will be replaced by an up-to-date volume or treatise
covering similar subject matters.
15. Inmate access to a notary public will be provided
Monday through Friday.
16. The defendants endorse the establishment of, ac-
knowledge the need for and will in good faith seek, a
legal services program for inmates at PNM.
17. Inmates who through unnecessary or loud discus-
sion or actions disrupt the orderly operation of either
library will be removed. The law libraries will not be
utilized for purposes other than legal research or the
drafting of documents related to legal matters. Reason-
able rules consistent with this order which explains the
86a
procedures for access to, and use of, the libraries will be
furnished each inmate. Reinstatement of law library
privileges for loss or destruction of property may be
contingent upon reimbursement for the value of the lost
or destroyed property and the maintenance of proper
behavior in the future. Reasonable alternative access to
legal resources and/or legal assistance will be provided
for those inmates temporarily without access to a law
library as a result of a violation of this paragraph.
18. Those actions provided for in paragraphs 1-6 and
8-17 above, which are not dependent upon the completion
of the Cellblock 4 library or the arrival of books to be or
already ordered, will be implemented as soon as possible
but in no event later than 21 days after the entry of the
requested order. Paragraph 7 will be implemented no
later than December 31, 1979. All other actions provided
will be implemented upon completion of the Cellhouse 4
law library, but in any event no later than February 15,
1980.
19. If the Court enters an order as requested concern-
ing the above matters, then it should dismiss the allega-
tions of §§$ 30, 31 of the Amended Complaint from the
trial of this case except for its retention of jurisdiction
to enforce said order.
Submitted by:
/s/ {Illegible] /s/ [Megible]
For the Plaintiffs For the Defendants
87a
EXHIBIT I
PNM Law Library Collection
American Law Reports, 2d & 3d. Quick Index.
American Law Reports, 2d Series.
v.1-90, 1948-1963.
American Law Reports, 3d Series.
v.l- , 1965-
American Law Reports Federal.
v.l- , 1969-
ALR Federal. Quick Index.
Antieau, Chester J. Modern Constitutional Law.
2v. Lawyers Co-Op, 1969.
Bailey, F. Lee. Complete Manual of Criminal Forms,
Federal and State. 2d ed. Lawyers Co-Op, 1974. 2v.
Bailey, F. Lee. Handling Narcotic and Drug Cases.
Lawyers Co-Op, 1972.
Black, Henery C. Black’s Law Dictionary. Rev. 4th ed.
West, 1968.
Bundy, Mary Lee. The National Prison Directory.
Urban Information Interpreters, Inc. 1975.
Calmari, John D. The Law of Contracts. West, 1970.
Cleary. McCormick’s Handbook of the Law of Evidence.
2d ed. West, 1972.
Cohen, Norris L. Legal Research in a Nutshell. 2d ed.
West, 1971.
Cook, Joseph G. Constitutional Rights of the Accused.
Pre-trial Rights. B-W, 1972.
Corpus Juris Secundum. 101 v. in 117, 1936-
Criminal Law Reporter. 1974-1975: 1977-
88a
Federal Reporter. 2d Series. West. v.1-52, 1924-1931;
v. 61-62, 1932-1933.
Federal Reporter. 2d Series. West. (Paper) 477, No. 4,
8/6/73 to date (Many issues missing)
Federal Supplement. West, v. 180- 1960-
Gard, Spenser A. Jones on Evidence. 6th ed 1972. 4v.
Hall, Livingston. Modern Criminal Procedure. 3d ed.
West, 1969.
Israel, Jerald H. Criminal Procedure in a Nutshell.
West, 1971.
Jailhouse Lawyer's Manual; How to bring a Federal Suit
Against Abuses in Prison. San Francisco, Prison Law
Collective. 1973. (Xerox copy).
Konvitz, Milton R. Bill of Rights Reader. Cornell U.
Press, 1968.
Krantz, Sheldon. Law of Corrections and Prisoner’s
Rights and Responsibilities. West, 1973.
LaFave, Wayne R. Handbook of Criminal Law. West,
1972.
Legal Problems of Correctional, Mental Health and Ju-
venile Detention Facilities. Practising Law Institute,
1976.
Lockhart, William B. Constitutional Law. ed. West, 1970.
Lowey, Arnold H. Criminal Law in a Nutshell. West,
1975.
A Manual on Habeas Corpus for Jail and Prison Inmates.
Written and compiled by the Prison Law Project. In
cooperation with the Barristers Club of San Francisco.
Berkely. Legal Publications, 1973. (Xerox copy)
Martindale-Hubbell Law Directory. Summit, N.J.: Mar-
tindale-Hubbell, 1972.
\
89a
Pacific Reporter, 1884-1930. 300v.
Library has all volumes except: 1, 8, 11, 18, 23, 45,
106, 218, 225, 262, 264, 275.
Pacific Reporter, 2d Series. v. 1-66, and 68-93 (1931-
1939).
Pacific Reporter, 2d Series. (Paper) 467, No. 3, 5/22/70
to date. (Many missing issues)
Perkins, Rolland M. Cases and Materials on Criminal
Law and Procedure. 2d ed. Foundation Press, 1966.
Potts, James L. Prisoners’ Self Help Litigation Manual.
National Prison Project, 1976.
Prosser, William. Handbook of the Law of Torts. 4th
ed. West, 1971.
Rudovsky, David. The Rights of Prisoners. Avon, 1977.
Shepard’s Federal Citations.
Shepard’s United States Citations.
Sokol, Ronald P. Federal Habeas Corpus. 2d ed. Michie,
1969.
Torcia, Charles E. Wharton’s Criminal Procedure. 12th
ed. 4v. 1976.
U.S. Code, 1970 ed. v. 1-11. Supp. IV, v. 1-3 and Index,
1974.
U.S. Code Annotated. West. 188v.
Library has entire set, but only Titles 18; 28 (Sec.
2241-2255); and 42 (Sec. 1981-1985) are being kept
up-to-date.
U.S. Supreme Court Digest. West. c. 16, 1952 ONLY.
U.S. Supreme Court Digest, Lawyers Ed. B-W. 20v. in
29.
U.S. Supreme Court Reports, Lawyers Ed. v. 1-100, 1917-
1956.
90a
U.S. Supreme Court Reports, LE 2d. v. 1- , 1957-
U.S. Supreme Court Reports, LE 2d. Desk Book.
U.S. Supreme Court Reports, LE 2d. Index to annota-
tions in LE 2d, and ALR Federal, ete. 1972.
U.S. Supreme Court Reports, LE 2d. Later Case Service.
1977.
Werner, 0. James. Manual for Prison Law Libraries.
Rothman, 1976.
Wright, Charles A. Federal Practice and Procedure.
West, 1969- v. 1-16 and 21.
Krantz, Sheldon. The Law of Corrections and Prisoners’
Rights in a Nutshell. West, 1976.
U.S. House of Representatives:
Rules of Criminal Procedure for the U.S. District
Court. Oct. 1, 1977.
Rules of Civil Procedure for the U.S. District Court.
Oct. 1, 1977.
Federal Rules of Appellate Procedure. January 1,
1976.
Federal Rules of Evidence. February 1, 1978.
The National Ex-Offender Assistance Directory 1978.
Contact, Inc.
Federal Rules Decisions. v. 1 to date
Sla
New Mexico Materials
New Mexico Digest. West, 6v. in 14.
New Mevico Reports. v.50- 1946-
New Mexico Statutes Annotated, 1953. 12v. in 20.
New Mexico Statutes Annotated. Special Supplement.
Chapter 14. Municipal Code, 1975.
New Mexico Appellate Handbook. Institute of Public
Law & Services.
New Mexico Criminal Law Handbook. Institute of Pub-
lic Law & Services.
New Mexico Local Rules and Federal Rules. Institute of
Public Law & Services.
Roehl, Joseph E. New Mexico Uniform Jury Instruc-
tions. Civil. West, 1966.
Shepard’s New Mexico Citations.
State Bar of New Mexico Bulletin.
Thompson, Mark B. New Mexico Appellate Manual. In-
stitute of Public Law & Services.
Walden, Jerrold L. Civil Procedure in New Mexico. In-
stitute of Public Services.
OWN A TAR WD eH
51
52
61
62
Federal Reporter, 2d Series
92a
—o
478
479
480
481
482
483
484
485
486
487
488
489
501
505
506
509
510
511
512
516
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
560
561
562
563
564
568
569
570
571
572
573
574
575
576
577
40
41
42
43
44
45
46
47
48
49
50
Minimum
93a
Federal Reporter, 2d Series
273-
491
Expanded
540
541
179-
180
181
182
183
184
185
186
187
188
189
190
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
94a
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
451
Minimum
191
192
193
194
195
196
197
198
199
200
241
242
243
244
245
246
247
248
249
250
180-
95a
291
292
293
294
295
296
297
298
299
300
341
342
343
344
345
346
347
348
349
350
391
392
393
394
395
396
397
398
399
400
Expanded
441
442
443
444
445
448
449
450
88-
COON A Th WN
96a
Pacific Reporter, 2d Series
513
514
515
516
517
551
552
553
554
555
556
«657
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
39
40
41
42
43
44
45
46
47
48
49
50
89
90
91
92
93
97a
541
542
543
544
545
546
547
548
549
550
98a
EXHIBIT II
I. Materials for both Federal and State Prisons
A. Federal Materials
1.
United States Code Annotated. St. Paul:
West -
United States Code Service (Lawyer’s Edi-
tion). Rochester: Lawyers Cooperative.
United States Reports. Washington, D.C.:
U.S. Government Printing Office. Vol. 340-,
1950-. on
Supreme Court Reporter. St. Paul: West.
Vol. 71-, 1950- ow
United States Supreme Court Reports
(Lawyers’ Edition). Rochester: Lawyers
Cooperative. Vol. 95-, 1950-.
Federal Reporter. (2d Series). St. Paul:
West. Vol. 179-, 1950-.
Federal Supplement. St. Paul: West. Vol.
88-, 1950-.
Modern Federal Practice Digest and West’s
Fed. Digest 2nd. St. Paul: West, 1960-.
Shepard’s United States Citations. Colorado
Springs: Shepard, 1968-.
Shepard’s Federal Citations. Colorado
Springs: Shepard, 1969-
Wright, Charles A. Federal Practice and
Procedure. St. Paul: West, 1969.
or
er
99a
- Orfield, Lester B. Criminal Procedure Un-
der The Federal Rules. Rochester, N.Y.:
Lawyers Cooperative, 1966-68.
9. Sokol, Ronald P. Federal Habeas Corpus.
(2d ed.) Charlottesville, N.C.: Michie,
1969.
B. General Materials
1. Black, Henry C. Black’s Law Dictionary.
(Rev. 4th ed.) St. Paul: West, 1968.
or
Ballentine, James A. Ballentine’s Law Dic-
tionary. Rochester, N.Y.: Lawyers Co-
operative, 1969.
2. Criminal Law Reporter. Washington, D.C.:
Bureau of National Affairs. Weekly. 2
vols. (looseleaf)
3. One or more of the following:
a. Anderson, Ronald A. Wharton’s Crim-
inal Law and Procedure. Rochester,
N.Y.: Lawyers Cooperative, 1957. (13th
ed.)
b. Israel, Jerold H. and Wayne R. La-
Fave, Criminal Procedure in a Nutshell.
St. Paul: West, 1971.
ec. Perkins, Rollin M. Criminal Law. (3d
ed.) Mineola, N.Y.: Foundation Press,
1966.
d. LaFave, Wayne R. and Austin Scott,
Jr. Hornbook on Criminal Law. St.
Paul: West, 1972.
e. Hall, Livingston, Yale Kamisar, Wayne
LaFave and Jerold Israel. Cases on
100a
Modern Criminal Procedure, (3rd ed.)
St. Paul: West.
Bailey, F. Lee and Henry Rothblatt. Com-
plete Manual of Criminal Forms, Federal
and State. Rochester, N.Y.: Lawyers Co-
operative, 1968.
Cohen, Morris L. Legal Research in a Nut-
shell. (2d ed.) St. Paul: West, 1971.
Fox, Sanford J. Juvenile Courts in a Nut-
shell. St. Paul: West, 1971.
The following:
a. Prison Law Monitor, Institution Educa-
tional Services, 1806 T St., N.W. Wash-
ington, D.C. 20009
b. Prisoners’ Self-Help Litigation Manual,
Lexington Books, 125 Spring St., Lex-
ington, Mass. 02173
ce. Rights of Prisoners, ACLU, 22 East 40th
St., N.Y., N.Y.
Criminal Law Bulletin. Boston: Warren,
Gorham & Lamont. Monthly.
II. Additional Materials for State Prisons
1.
2.
Set of annotated statutes of State.
State session laws subsequent to coverage in
annotated statutes and supplements, if not
covered by legislative service of annotated
statutes publisher.
Court reports of appellate courts of State,
1950-.
4. Digest of court decisions of State.
5. Shepard’s citations for State.
10la
6. Rules of State courts not covered in anno-
tated statutes. Single volume edition pre-
ferred, if available; otherwise, free copies
may be obtained from clerks of some courts.
7. State legal encyclopedia, if any.
8. One or more state practice books (with
forms) on evidence, criminal law and pro-
cedure.
Note: All materials should be kept up to date by sub-
scriptions or supplementation.
102a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
vs.
JERRY APODACA, et al.,
Defendants.
ORDER
[Filed Dec. 7, 1979]
The parties to the above s[ty]led litigation have pre-
sented the Court with a Joint Request for Partial Con-
sent Decree which would result in a settlement of the
issues raised by the allegations in Paragraph 27 of the
Amended Complaint insofar as it relates to visitation
at the Penitentiary of New Mexico. The Court has con-
sidered the said Joint Request and the terms of the pro-
posed settlement and has determined that the proposed
Partial Consent Decree would be in the interest of justice
to the parties and should be entered.
Wherefore, premises considered, the defendants, indi-
vidually and in their official capacities, their agents,
employees, successors in office and any other acting in
103a
concert with them, are hereby enjoined from failing to
implement fully and within the times prescribed each of
the provisions of the attached Joint Request for Partial
Consent Decree and the allegations of Paragraph 27 of
the Amended Complaint insofar as it relates to visitation
is dismissed from the trial of this case.
The Court retains jurisdiction to enforce this Order.
Done this 7th day of December, 1979.
/s, Santiago E. Campos
SANTIAGO CAMPOS
United States District Court Judge
104a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 77-721-C
DWIGHT DURAN, et al.,
Plaintiffs,
vs.
JERRY APODACA, et al.,
Defendants.
JOINT REQUEST FOR PARTIAL CONSENT
DECREE
[Filed Dec. 7, 1979}
Come now the parties in the above styled case and
jointly request that the Court enter a partial consent
decree in settlement of those allegations made in the
Amended Complaint in paragraph 27 insofar as they
relate to visitation. The provisions which the parties
have agreed to and which this Court is asked to approve
and adopt as its order are as follows:
1) The number of visitors an inmate may receive and
the length of visits may be limited only by the institu-
tion’s schedule and space and personnel requirements.
2) Inmates shall not be denied access to visitation with
persons of their choice except where the Chief Executive
105a
Officer or his/her designate can present clear and con-
vincing evidence that such visitation jeopardizes the
safety and security of the institution or the visitors.
3) No persons shall be denied permission to visit
solely because of their sex, marital status, status as an
ex-offender, the fact that they are or have been on an-
other inmate’s visiting list or because of the marital
status of the inmate.
4) The following provisions limiting who may visit
shall be deleted from the defendants’ visiting regulations:
A) Ex-felons as visitors:
Persons with known felony convictions, persons
with extensive criminal backgrounds, and former PNM
inmates will ordinarily not be approved for visiting. Ex-
ceptions to this may be extended to immediate family
members only, and only with the approval of the Classi-
fication Committee. Limited or full visiting privileges
may be extended to the persons to be approved when they
have shown stability in the community, as may be veri-
fied by the field services staff (Probation-Parole Officers),
and it has been established that a meaningful relatien-
ship exists between the inmates and those persons.
B) Visitors who visit with more than one inmate:
1) Visitation with more than one (1) inmate
will only be approved when the visitor(s) is/are imme-
diate family member(s), as defined by paragraph 4b(4),
above, or the legal spouse of an approved immediate
family member.
2) A person who has been approved for visiting
with any inmate will not be approved for visiting with
another inmate not related to that visitor. “Related”
herein will be defined as “Immediate Family” as defined
in this policy statement. If a person has been approved
106a
for visiting with an inmate who is subsequently trans-
ferred to any other institution or facility, that person is
still ineligible for placement on another inmate’s ap-
proved visiting list.
C) Common Law Relationships:
(Not to be misconstrued with establishment of
common-law relationship for inter-prison visits). The
approval of common-law relationships as a basis for visits
will be contingent on such factors as the length of the
relationship, mutual property holdings, children result-
ing from the relationship, ete. Visits will not be granted
when both parties have lived together for less than one
year.
D) Friends of the opposite sex:
Single inmates may have an unlimited number
of persons of the opposite sex on his approved visitor
list, within the limitations imposed by paragraph C),
above. Married inmates may have friends and non-blood
related relatives of the opposite sex on their visiting list,
but only after the inmate’s spouse has provided the Vis-
iting Office with written consent for same.
E) Confirmation of marriage:
Anyone claiming to be the legal spouse of a
resident incarcerated here must provide a valid marriage
certificate; a marriage license is not sufficient unless it
also includes a certification that the marriage did in
fact take place. Either the marriage certificate or a
photocopy may be presented, either by attaching it to
the application questionnaire or in person to the Visit-
ing Office when visiting at this facility. If the marriage
certificate is presented in person, a photocopy will be
made at no cost and the original immediately returned to
the owner.
5) Investigations conducted by the defendants relating
to visits shall be limited to:
107a
A) Investigations, as required, of incidents involv-
ing correspondents and/or visitors which affect or po-
tentially affect the security or orderly operation of PNM.
B) Investigations to verify personal data provided
in response to questionnaires in cases in which there is
reasonable cause to believe that the information pro-
vided is not accurate or complete.
6) Files maintained by the defendants on each visitor
shall be limited to:
A) Records of the visitor’s certification form (8A)
and reports of significant incidents which indicate that
visitation by this person will jeopardize the security of
the institution and prior convictions of the persons au-
thorized to visit prisoners at the PNM.
B) Files based on daily visiting records obtained
from the Front Entrance.
7) Procedures for placement on approved visitor list:
A) The defendants shall issue each new commit-
ment an A&O Visitor Request list form during the ini-
tial intake processing. Each resident must complete the
form by providing the required information for each
visitor being requested in accordance with the instruc-
tions provided on the reverse side of the form. The in-
formation requested on the form shall be the visitor’s
name, address, age and the visitor’s relationship to the
requesting inmate. The completed f[or|]m wi
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