# Appendix — Carruthers v. Duran

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1056

## Text

o\ife rpiren
89-7 86 NOV 17 tes
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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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WILSCN - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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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

—

la
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 “Qualified mental health
professionals” in this paragraph include only qualified
psychiatrists and clinical psychologists with appropriate
education and training in psychological test interpreta-
tion.

l6la

19. All Inmates committed to the Department of Cor-
rections and Criminal Rehabilitation may only be given
mental health treatment without his/her informed con-
sent pursuant to the standards of the New Mexico Health
and Developmental Disabilities Code.

20. Aversive therapy will not be utilized.

21. Any involuntary transfers of prisoners to mental
hospitals or to other special living units for the treat-
ment of mental health problems will be conducted con-
sistent with the due process requirements outlined in
Vitek v. Jones, 48 U.S.L.W. 4317 (March 25, 1980).

22. One member of the mental health staff will be
designated as the official liaison person with the New
Mexico forensic hospital. That person will be responsible
for assuring that all appropriate documents are trans-
ferred between institutions concerning the past and
future care and treatment of the inmate and to assure
that the appropriate follow-up care is provided when in-
mates are returned from the hospital to the penitentiary.

23. Good faith efforts will be made to hire qualified
mental health professionals who speak the same language
as segments of the inmate population.

24. Special psychiatric units in the infirmary or psy-
chiatric area can be used only under the direct super-
vision of a doctor or psychiatrist and only for legitimate
medical or psychiatric reasons.

162a
POLICY STATEMENT EXHIBIT F

SUBJECT: STAFFING AND TRAINING

1. Adequate staff and staff training will be provided
to reasonably assure the safety and protection of inmates
and to allow the Department of Corrections to comply
will all other orders or policy statements in Duran v.
Apodaca.

2. At least one correctional officer will be stationed
in each cellblock so that all inmates will have voice con-
tact with a correctional officer at all times. In addition,
irregular rounds of the entire cellblock will be made at
least one time per hour.

3. As soon as possible, but no later than September 1,
1980, at least one correctional officer will be stationed
between the inner gate and outer gate of each dormitory
at the Penitentiary of New Mexico at Santa Fe at all
times that any inmates are housed in said dormitories.
The said officers will position themselves in such a man-
ner that they may have visual observation of inmates at
‘all times.

4. Training will be provided to all staff which is
equivalent to that required by the Manual of Standards
for Adult Correctional Institutions of the Commission of
Accreditation for Corrections.

5. As soon as is practicable, a qualified person or
persons selected by the Department will review the cur-
rent facility and its use; all plans for future renovation
or building; all plans for future jobs, activities, pro-
grams, and services to members of the Duran class; and
the requirements of the orders or policy statements in
Duran v. Apodaca; and will make comprehensive recom-
mendations as to the number of correctional staff needed
under the various conditions presented to meet the re-
quirements of those orders and policy statements. Those
recommendations will be provided to the parties.

163a

Within 30 days of receipt of said recommendations, the
Department of Corrections will file with the Court and
with the plaintiffs a plan for complying with said recom-
mendations, including timetables, or will show cause
why they should not comply.

If the plaintiffs deem the recommendations, the plan
or the timetables to be inadequate they may apply to
the Court for further relief.

164a
POLICY STATEMENT EXHIBIT G

MAXIMUM SECURITY

1. Maximum security classificaticn is used when in-
mates require closer supervision and separate housing
from the general population. Every effort shall be made
to return maximum security inmates to the general pop-
ulation as soon as practicable, but some inmates may
spend relatively extensive periods of time in this status.
Maximum security classification is not for the purpose
of punishment. This policy statement has no applica-
tion to those inmates confined in disciplinary segregation.

2. The words “threat to the security of the institu-
tion” or their equivalent, as used in any order in Duran
v. Apodaca, means a substantial threat of an act or acts
of violence upon others, substantial destruction of state
property, escape or attempted escape, riot or inciting a
riot, or taking of hostages. When action is taken based
upon a finding of a threat to the security of the institu-
tion, the specific reason(s) comprising the threat will be
documented.

3. An inmate may be placed involuntarily in maximum
security by the classification committee pursuant to the
criteria stated in one or more of the following five
subsections:

(a) The classification committee specifically finds
the following:

(i) The Disciplinary Committee has recently found
that the inmate has committed an act of violence, sub-
stantial destruction of state property, escape or attempted
escape, riot or inciting a riot, or taking of hostages, and
as a result of such finding has been sentenced to disci-
plinary segregation; and

(ii) Because of such finding, considered along with
all other classification and other relevant data, there is a

165a

substantial likelihood that if released to the general pop-
ulation the inmate would present a substantial threat to
the security of the institution or to the safety of others.

(b) The classification committee specifically finds,
based upon recent overt acts, that an inmate presents
an imminent threat of serious bodily harm to others or an
imminent threat of escape. Pending action of the classi-
fication committee under this subparagraph, the ranking
shift officer may temporarily house an inmate in maxi-
mum security status until the next working day, at which
time the classification committee shall determine whether
the inmate will remain in maximum security status as
set forth above. The ranking shift officer who tempo-
rarily detains an inmate under this section will docu-
ment the reasons for the action and will give a copy of
the document to the inmate within eight hours.

(c) The classification committee specifically finds
that the inmate is a victim of a violent act and there is
clear and convincing evidence that if he remains in gen-
eral population he will be subjected to additional violent
acts.

(d) The classification committee specifically finds
that the inmate’s safety is jeopardized by an immediate
life threatening conflict with other inmates in the general
population which requires temporary separation from the
general population because he cannot otherwise be pro-
vided with adequate protection.

(e) The classification committee specifically finds
that the inmate has demonstrated a continuous, substan-
tial and documented violation of institutional rules. This
sub-section cannot be used in combination with disci-
plinary action for the same acts. An inmate may not be
classified in this category for more than 5 days at a
time.

4. An inmate may also be placed in maximum security
if the inmate believes that housing in the general popu-

Se

166a

lation places the inmate in jeopardy of serious bodily
harm and requests placement in maximum security. In-
mates requesting assignment to maximum security may
be required to sign a written request slip, stating their
desire for assignment to maximum security. Inmates
requesting assignment to maximum security may be
placed therein immediately without waiting for the
formal hearing before the classification committee.

Any inmate- who has voluntarily placed himself in
maximum security status will be reclassified within 5
working days of a request to be reclassified. However,
the inmate may be reclassified into maximum security
status involuntarily if any of the conditions of para-
graph 3 above are met.

5. A statement detailing the alleged specific facts and
specific reasons for classifying an inmate into maximum
security shall be given to the inmate at least 24 hours
prior to the classification hearing. If the basis for plac-
ing the inmate into maximum security involves the
testimony of a confidential informant, the disclosure of
which would place such informant in jeopardy of serious
bodily harm, the inmate shall be given a summary of
the facts upon which maximum security classification is
being requested sufficient to allow him to challenge the
truthfulness of the facts and/or the need for maximum
security status.

6. Prior to placing an inmate in maximum security,
the classification committee must make a finding of fact
based upon a preponderance of the evidence that the
requirements of paragraph 3 above have been met. Prior
to classifying an inmate in maximum security status, the
classification committee shall explore alternatives other
than specialized housing and shall prepare a statement
of the alternatives explored and the reason for rejecting
each of them. If an inmate is placed in maximum se-
curity housing, the inmate will be housed in a single
occupancy cell or room that provides safety and comfort

167a

and shall be allowed to participate in institutional pro-
grams as set forth herein; however, if there is an emer-
gency caused by riot, fire or other disaster making living
units unusable, two people may be housed in said cells or
rooms for a period of short duration while arrangements
are made for alternate housing. Each case shall be
reviewed on the basis set forth in paragraph 7, with the
goal of terminating the separate housing assignment as
soon as practicable.

7. The classification committee shall review the status
of each inmate at least every 7 days for the first two
months and at least every 30 days thereafter. More
frequent reviews may be scheduled based on the request
of the case manager or the inmate. At each review, the
classification committee shall determine whether there is
substantial evidence to indicate that the initial reasons
for classification into maximum security still exist. If
they do not, the inmate shall be reclassified out of maxi-
mum security status. The inmate can appear before the
classification committee at each review and make a state-
ment. In cases where the inmate refuses to appear, the
committee members shall sign and document the spe-
cific reasons for the inmate’s absence and make an
evaluation for the inmate’s working file. Nothing in this
paragraph shall prevent the classification committee from
making additional findings pursuant to the standards and
procedures set forth above, to the effect that an inmate
should be classified into maximum security status.

8. If an inmate is classified maximum security under
the provisions of paragraph 3(b) hereof, the inmate’s
status must be reviewed by the classification committee
within 7 days after the initial classification and every 7
days thereafter, and inmates shall not be housed in such
status for more than 30 days. At each review, the classi-
fication committee must make a specific finding of the
behavior justifving continued classification to maximum
security and document that there is substantial evidence

168a

to indicate that the reasons for the initial placement still
exist.

9. In each case of an inmate classified maximum se-
curity involuntarily for over 60 days, the classification
committee shall establish a set schedule of personal and
program objectives involving gradual reintegration into
the general population, the completion of which without
an overt act evidencing an actual threat of serious bodily
harm to others or escape should result in the inmate’s
reclassification from maximum security within an addi-
tional 60 days. However, if the classification committee
documents compelling evidence that reclassification from
maximum security would produce serious injury to the
inmate or others or present a substantial threat to the
security of the institution, then neither reclassification
nor reintegration is required. Said evidence must include:

(a) A murder within the previous two years; or

(b) Activity in a prison riot within the preceding
two years in which persons suffered serious bodily harm
as a direct and intended result of action of the inmate;
or

(c) At least two recent previous overt acts caus-
ing serious bodily injury during reintegration or im-
mediately after reclassification from maximum security
under these provisions; or

(d) An escape or attempted escape within the
previous six months; or

(e) The inmate meets the terms of paragraph
3(c) or (d) above.

10. Prisoners classified maximum security may be
denied or removed from a program, job, activity, or
canteen privileges generally available to the population
only upon a specific, documented finding by the classi-
fication committee of demonstrated necessity for each
such action based upon the recent particular behavior of

EEE

169a

the prisoner or actions of other prisoners. In any event,
every prisoner in maximum security status shall receive
an opportunity for a minimum of one hour of recreation
(outdoors, weather permitting) daily. In addition, as
soon as practicable, consistent with the plan developed
relating to inmate activity, every prisoner in maximum
security status will receive an opportunity for at least
five additional hours, five days a week, of meaningful
programmed activities determined by the classification
team. In the interim, good faith efforts will be made to
provide additional meaningful programmed activities for
all inmates housed in maximum security status, includ-
ing, for example, expanded recreational activity, indi-
vidually prescribed education and other individual. or
group activities utilizing staff or community resources.

11. Inmates who have been classified as maximum
security will be provided with the following:

(a) Clothing and linen issue and exchange simi-
lar to that provided to the general population;

(b) Meels provided to the general population;

(c) Correspondence privileges similar to that pro-
vided to the general population;

(d) Showers and shaving five days a week;
(e) Hair grooming and barbering;
(f) A minimum of two hours visitation per week.

12. Access to legal resources for maximum security
inmates will be provided pursuant to the consent de-
cree in Duran v. Apodaca.

13. Provision will be made for prisoners in maximum
security status to have access to the general library or a
library cart to check out as many as five books at least
every seven days.

170a

14. Inmates in maximum security status will be al-
lowed to retain in their personal living area at least five
books and all legal papers.

15. Inmates classified in maximum security housing
will be housed in single occupancy cells or rooms; how-
ever, if there is an emergency caused by riot, fire or
other disaster making living units unusable, two people
may be housed in said cells or rooms for a period of short
duration while arrangements are made for alternate
housing. They may retain their personal property, as
permitted in general population, unless the classification
team finds that in the case of an individual inmate, the
removal of specific designated items of personal property
is essential to protect the safety of the inmate or others,
a fire hazard would be created, or the amount of the
personal property would be excessive so as to cause
violation of health, sanitation, or fire safety standards.
If property is removed, it will be stored in a safe place
and an inventory will be maintained. All inmates in
maximum security status may have basic items needed
for personal hygiene, as well as items such as eyeglasses,
dentures and writing material.

16. A case manager will visit five days per week all
areas in which maximum security inmates are housed
and will be available to help each inmate who desires
assistance or information. A qualified medical profes-
sional will conduct sick call daily in each maximum se-
curity living area and will examine every inmate who
so requests to determine what medical care, if any, is
required. A log will be maintained documenting each
visit and each inmate contact.

17. A qualified clinical psychologist or psychiatrist will
assess the status of each person classified as maximum
security at least once each 30 days. Said assesment
will include a personal interview with the inmate.

18. Visitation by religious personnel to inmates in
the maximum security living areas will be governed by

17la

the terms of the visitation consent order in Duran v.
Apodaca. Inmates in the maximum security living areas
will be provided with access to appropriate religious
services.

19. Correctional officers assigned to maximum secu-
rity living areas should be tolerant and trained to meet
the needs of inmates so classified. Each supervisor will
supervise and evaluate the on-the-job performance of
employees assigned to maximum security living areas.

20. The Warden will designate an official to be re-
sponsible for the administration and operation of maxi-
mum security living areas who will monitor and evaluate
the entire program in the areas as often as necessary to
insure compliance with all applicable policy statements.
The following personnel shall visit maximum security
living areas:

1) Warden Weekly visit

2) Deputy Warden Weekly visit

3) Associate Warden/Inmate Daily visit '
Management

4) Superintendent Correctional Daily visit
Security

5) Chief Psychologist Weekly visit

6) Medical Personnel Daily visit

7) Caseworker Daily visit

8) Chief, Classification and Weekly visit
Programming

9) Chaplain Weekly visit

10) Shift Captain Once per tour
of duty

1 Daily visit means one per each normal working day; days off
are excluded.

172a

21. A systematic records system will be maintained
for all inmates assigned to maximum security living
areas. A general activity log will be maintained for
inmates and activities within such areas. In addition, a
log will be maintained for all personnel entering for in-
spection and treatment of each inmate. A safety and
sanitation officer will inspect the areas daily to insure
that they are sanitary. These inspections will be recorded.

173a

POLICY STATEMENT EXHIBIT H

SUBJECT: INMATE DISCIPLINE

1.

to

POLICY: It is the policy of this institution to pro-
vide a safe environment for both inmates and staff
and to offer programs for all inmates who wish to
develop their potential for maintaining a successful
community adjustment following their release. In
order to implement this policy it is essential that
reasonable standards of control and discipline are
established and maintained. Inmates and staff will
be provided with complete copies of this policy and
procedure and additions, revisions as they are adopted.

PURPOSE: The purpose of this policy statement is
to provide written guidelines to insure that inmate
control and discipline are established and maintained
in accordance with the following objectives:

(a) Require individual inmate compliance with rea-
sonable behavior standards and limitations.

(b) Insure the general welfare and safety of all per-
sons living and working within the institution.

(ec) Establish and maintain fair disciplinary proce-
dures and practices based on due process.

GENERAL PRINCIPLES: The following general
principles shall be applicable in every disciplinary ac-
tion taken against any inmate:

(a) The action shall be reasonable and proportionate
in relation to the violation.

(b) The action shall be taken in an impartial and
non-discriminatory manner.

(c) The action must never be arbitrary or retaliatory.

(d) Physical abuse is strictly prohibited.

174a
(e) Accurate, detailed reports of all disciplinary ac-

tions shall be maintained in accordance with this
policy statement.

(f) The words “threat to the security of the institu-
tion” or their equivalent, as used in any orders in
Duran v. Apodaca, means a substantial threat
of an act or acts of violence upon others, sub-
stantial destruction of state property, escape or
attempted escape, riot or inciting a riot, or
taking of hostages. When action is taken based
upon a finding of a threat to the security of the
institution, the specific reason(s) comprising the
threat will be documented.

4. INFORMATION TO INMATES: Each inmate will
be provided, in writing, at the time of his or her ar-
rival, with the following information:

(a) Policy Statement on Inmate Discipline.

(b) Policy Statement on Grievance Procedures.

(c) Policy Statement on Correspondence Regulations.
(d) Policy Statement on Visiting Regulations.

(e) Criteria for work release-school release.

(f) Criteria for transfer among institutions.

(¢) Criteria for furloughs.

(h) Policy Statement on Good Time.

(i) Policy Statement on Maximum Security Status.

This information will be issued at the Intake and Classi-
fication Center and a signed, dated receipt for same will
be obtained and placed in the central file of each inmate.

re

5. GENERAL PRINCIPLES:

- (a) Any act, although not specifically listed in this
policy, that would be either a felony or mis-

6.

(b)

(ec)

id)

(e)

(f)

175a

demeanor under the Criminal Code of the State
of New Mexico or the laws of the United States
of America, will :onstitute a major or minor
violation, depending on its status as a felony or
misdemeanor. ;

In those cases where an inmate allegedly com-
mits an act covered by statutory law, the case
will be referred for evaluation for possible crim-
inal prosecution to the local District Attorney.

An attempt to commit a major offense will not
ordinarily be treated with the same severity and
sanctions as the actual commission of the under-
lying offense.

Any portion of a sanction may be suspended for
a specified period of time. Inmates will be in-
formed in writing of the conditions under which
the suspended sanction may be invoked in the
future.

At the request of the inmate, he or she may
receive a continuance of their disciplinary hear-
ing when criminal prosecution is pending.

It is understood that the time limits in dis-
ciplinary segregation are exclusive of time spent
in maximum security status due to reclassifica-
tion. Disciplinary action does not preclude re-
classification into maximum security status pur-
suant to the policy statement in maximum secu-
rity after time spent in disciplinary segregation.

MAJOR OFFENSES AND SANCTIONS (Category

A)

(a)

Riot or inciting a riot, confinement in discip-
linary segregation for up to 30 days; loss of good
time not to exceed all good time.

(b)

(¢)

(d)

(e)

(f)

(i)

176a

Taking of hostages, confinement in disciplinary
segregation for up to 30 days; loss of good time
not to exceed all good time.

Arson, confinement in disciplinary segregation for
up to 30 days; loss of good time not to exceed all
good time.

Assault with a weapon on an employee, civilian
or inmate, confinement in disciplinary segrega-
tion for up to 30 days; loss of good time not to
exceed 365 days.

Sexual assault, confinement in disciplinary segre-
gation for up to 30 days; loss of good time not
to exceed 365 days.

Unjustified killing of any person, confinement in
disciplinary segregation for up to 30 days; loss
of good time not to exceed all good time.

Escape, confinement in disciplinary segregation
for up to 30 days; loss of good time not to ex-
ceed all good time.

Forging or altering official facility paper or
documents, confinement in disciplinary segrega-
tion for up to 30 days; loss of good time not to
exceed 180 days.

Threatening others who refuse to participate in
a work stoppage or work strike or participating
in a work stoppage or work strike, confinement
in disciplinary segregation for up to 30 days;
loss of good time not to exceed 180 days.

Giving or offering any official or staff member
a bribe, confinement in disciplinary segregation
for up to 30 days; loss of good time not to exceed
all good time. '

177a

(k) Possession, introduction, or manufacture of a
firearm, explosive or anmmnunition, confinement
in disciplinary segregation for up to 30 days;
loss of good time not to exceed 365 days.'*!

OFFENSES AND SANCTIONS (Category B)

The offenses in Category B shall be considered to be
major, only if one or more of the following factors is
found to be present by the Disciplinary Officer and/or
Disciplinary Committee:

(a) A life threatening incident is involved.

(b) A showing of a malicious state of mind, which
threatens the security of the institution.

(ec) A direct and substantial threat to the security
of the institution.

(d) The behavior is repeated or has previously been
the subject of major disciplinary action.

(e) Substantial property damage has occurred.

(f) Any injury received was not of a minor nature
and required medical attention.

(g) The offense was committed by more than one
person, excluding offenses in which more than
one person is required to commit the offense.

If evaluated as a Major Report, the sanctions in the
succeeding subparagraphs will be applied. If evalu-
ated as a Minor Report, the minor offense sanctions
listed in paragraph 7 will be applied.

(*] [On July 10, 1985, the district court added paragraph (l):

(1) Possession, introduction, or manufacture of any contra-
band instrument which is capable of causing death or serious
physical injury; confinement and disciplinary segregation for
up to 30 days, and/or loss of good time not to exceed 180 days. ]

178a

CATEGORY B

These principles apply to the following offenses:

(a)

(ce)

(e)

(f)

(h)

Consensual engagement in sexual acts with
others; confinement in disciplinary segregation
for up to 15 days; loss of good time not to ex-
ceed 30 days.

Willfully refusing to-obey a lawful order of any
staff member; confinement in disciplinary segre-
gation for up to 15 days; loss of good time not
to exceed 90 days.

Stealing; confinement in disciplinary segregation
for up to 25 days; loss of good time not to exceed
180 days.

Possession of money without authorization; con-
finement in disciplinary segregation for up to 15
days; loss of good time not to exceed 90 days.

Failure to report to an institutional assignment,
refusing to accept a work assignment, or failing
to perform work as properly instructed by a
supervisor; confinement in disciplinary segrega-
tion for up to 15 days; loss of good time not to
exceed 60 days.

Possession, introduction, or manufacture of a
sharpened instrument, tool, or knife; confinement
in disciplinary segregation for up to 20 days;
loss of good time not to exceed 120 days.

Failure to follow posted safety or sanitation
regulations resulting in damage or personal in-
jury; confinement in disciplinary segregation for
up to 15 days; loss of good time not to exceed 90
days.

Use of abusive words or gestures to a staff mem-
ber or other inmate that are intended to provoke
a fight, cause the violation of other institutional

179a

regulations or threatens the security of the insti-
tution; confinement in disciplinary segregation
for up to 15 days; loss of good time not to exceed
45 days.

(i) Intentionally interfering with count; confinement

in disciplinary segregation for up to 20 days;
loss of good time not to exceed 60 days.

(j) Possession, manufacture, or introduction or use

(k)

of any narcotic, narcotic paraphernalia, drugs or
intoxicants not prescribed for the individual by
the medical staff, or refusal to submit to an au-
thorized drug test; confinement in disciplinary
segregation for up to 25 days; loss of good time
not to exceed 180 days.

Possession, alteration, using, or being under the
influence of alcohol or other intoxicants, or re-
fusal to submit to an aleohol test upon request
from authorized personnel: confinement in dis-
ciplinary segregation for up to 15 days; loss of
good time not to exceed 60 days.

(1) Willful destruction or sabotage or altering of state

property or property of another person; confine-
ment in disciplinary segregation for up to 25
days; loss of good time not to exceed 180 days
and/or restitution.

(m) Possession of contraband items (i.e., anything

(n)

not allowed to be received through the mail, not
sold at the canteen or issued by the State); con-
finement in disciplinary segregation for up to 15
days; loss of good time not to exceed 60 days.

Conduct with a visitor in violation of posted
visiting regulations; confinement in disciplinary
segregation for up to 15 days; loss of good time
not to exceed 30 days.

(q)

(r)

(s)

(u)

180a

Violating a condition of furlough, school or work
release; confinement in disciplinary segregation
for up to 15 days; loss of good time not to exceed
90 days.

Knowingly making a false statement to a staff
member which causes the violation of other insti-
tutional regulations or threatens the security of
the institution; confinement in disciplinary seg-
regation for up to 15 days; loss of good time not
to exceed 60 days.

Gambling; confinement in disciplinary segrega-
tion for up to 15 days; loss of good time not to
exceed 90 days.

Violation of correspondence regulations; confine-
ment in disciplinary segregation for up to 15
days; loss of good time not to exceed 60 days.

Possession of another’s property without written
approval of shift supervisor, demanding, receiv-
ing or giving or bartering of property belonging
to others; confinement in disciplinary segregation
for up to 15 days; loss of good time not to exceed
90 days.

Loaning of property or items of value for profit
or increased return; confinement in disciplinary
segregation for up to 15 days; loss of good time
not to exceed 60 days.

Extortion, blackmail, or demanding or receiving
money or anything of value in return for pro-
tection from the individual or others to avoid
bodily harm, or under threat of informing; con-
finement in disciplinary segregation not to exceed
25 days; loss of good time not to exceed 90 days.

Fighting with another person, without weapons,
not causing injury requiring medical treatment;

—

18la

confinement in disciplinary segregation for up to
30 days; loss of good time not to exceed 180 days.

(w) Giving or offering any staff member or official

(y)

anything of value, confinement in disciplinary
segregation for up to 10 days; loss of good time
not to exceed 30 days.

Self-mutilation not caused by psychiatric or psy-
chological problems; confinement in disciplinary
segregation for up to 15 days; loss of good time
not to exceed 60 days.

Attempt to commit a major misconduct offense as
defined in this Policy Statement (this must in-
clude an overt act in furtherance of said at-
tempt); confinement in disciplinary segregation
for up to 25 days; loss of good time not to ex-
ceed 90 days.

7. MINOR REPORTS AND SANCTIONS: Minor re-
ports are reports of vioiations in which none of the
criteria listed in Major Offenses and Sanctions (cate-
gory B) are present or which were reduced from
major reports.

The following prohibitive acts are minor reports:

(a)
(b)

(¢)

(d)
(e)

(f)

Smoking where prohibited.

Using any machinery or equipment contrary to
instructions or posted safety standards.

Improper or unauthorized use of equipment or
machinery.

Failure to follow safety /sanitation regulations.

Failure to perform work as properly instructed
by a staff member.

Intentional unexcused absence from work or
school assignment.

Y

182a

(¢g) Mutilating or altering clothing.
(h) Possession of gambling paraphernalia.

(i) Willfully failing to keep one’s person, living area
or work station in accordance with written, offi-
cial institutional standards.

(j) Tattooing.

Disciplinary authority for minor report disposition is
delegated to the Disciplinary Officer. When the Discipli-
nary Officer receives a report of inmate misconduct, and
following review and hearing within seven working days,
he has the authority to impose minor sanctions. His de-
cision is subject to review by the institutional super-
intendent who may approve, reduce or modify, refer for
further investigation or dismiss. The superintendent
may refer the case to the Disciplinary Officer where there
is new evidence of a violation of institutional policy, or
the sanction is inappropri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0615%3A2. Public record. Not legal advice.