Petition for Writ of Certiorari — Wood County v. Pembroke

Qa. Supreme Court, U.S

d Pee C44 - Ripe

$$ - OF TRE CLERK

In the i:

Supreme Court of the United States

OCTOBER TERM, 1993

WOOD COUNTY, TEXAS,

SHERIFF FRANK WHITE,

DEPUTY JAMES ROBERTS

Petitioners

versus

LARRY PEMBROKE, ET AL

Respondents

PETITION FOR WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Charles H. Clark

P.O. Box 98

604 Woldert

Tyler, Texas 75710

903/593-2514

State Bar No. 04274000

ATTORNEY FOR PETITIONERS

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

E

i

QUESTION PRESENTED FOR REVIEW

Whether a judicial pronouncement that unconstitutional

conditions of confinement in a county jail were remedied by

the commencement of a 42 U.S.C. § 1983 class action

against a county government and officials— unaccom-

panied by a judgment, consent decree, or settlement from

any defendant—is a ‘‘material change in the legal relation-

ship’’ between the prisoner class and county sufficient to

confer prevailing party status on the class for purposes of

a 42 U.S.C. § 1988 attorney’s fee application.

Respectfully submitted,

CHARLES H. CLARK, P.C.

Hull Mh

Charles H. Clark

Bar I. D. No. 04274000

P.O. Box 98

604 Woldert

Tyler, Texas 75710

903/593-2514

ATTORNEY FOR PETITIONERS

il

LIST OF PARTIES

Wood County, Texas, Petitioner

Sheriff Frank White, Petitioner

Deputy James Roberts, Petitioner

Larry Pembroke and a class of all persons

incarcerated in the Wood County Jail from

December 19, 1985, Respondents

Timothy Garrigan, Counsel for Respondents

Stuckey & Garrigan

Respectfully submitted,

CHARLES H. CLARK, P.C.

—— j

_74 : 7

Charles H. Clark

Bar I. D. No. 04274000

P.O. Box 98

604 Wolddert

Tyler, Texas 75710

903/593-2514

Yj

ATTORNEY FOR PETITIONERS

i as

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW .......... i

ey a ssa skeen esau dees ii

Rs iii

TABLE OF AUTHORITIES ...................... v

REFERENCE TO OPINIONS ..................... l

GROUNDS ON WHICH JURISDICTION

Er Ee ee 2

ss) 2

STATEMENT OF THE CASE ..................... 2

(i) Basis of Federal Jurisdiction Below ......... 2

(ii) Course of Proceedings and Disposition

gS 2

oe) memes GE Peete... eee 4

REASONS FOR GRANTING CERTIORARI ........ 6

re 7

iv

TABLE OF CONTENTS (continued)

APPENDIX:

Appendix A — Judgment and Opinion of the United

States Court of Appeals for the Fifth Circuit ..... A-1

Appendix B — Findings of Fact and Conclusions of

Law of the United States District Court ......... B-1

Appendix C — Final Judgment of the United States

A dae cae ee eee eee erie ee C-1

Appendix D — Order of the United States District

Court Denying Plaintiffs’ Motion for Attorney’s

ES ia si wom os oe ara ke atte oe ee nev Coe ete D-1

Appendix E — Verbatim Text of 42 U.S.C.

SF eee Ae ee ee ree hy ee es E-1

Vv

TABLE OF AUTHORITIES

CASES Page

Associated Builders end Contractors of Louisiana,

Inc. v. Orleans Parish School Board, 919 F.2d 374

ks ee 8,12,13,14

Estate of Farrar v. Hobby, —U.S.—, 1135 S.Ct. 566,

— L.Ed.2d — (1992) ............... 7,8,9,11,12,13,14

Foremaster v. City of St. George, 882 F.2d 1485

(10th Cir. 1989), cert. denied, 495 U.S. 910, 110

S.Ct. 1937, 109 L.Ed.2d 300 (1990)................ 8

Harrington v. DeVito, 656 F.2d 264 (7th Cir. 1981) ... .8

Hennigan v. Quachita Parish School Board, 749

F.2d 1148 (6th Cir. 1986) ........................ 8

Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672,

OS 1..G. BG G64 (1087) ....................-. 8,9,10

Langston v. Johnson, 928 F.2d 1206 (1st Cir. 1991)... .9

Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65

Me WE ME UII oe ccc cde vues vaccuancce. 9

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir. 1978) .8,9,10

Palmer v. City of Chicago, 806 F.2d 1316 (7th

Cir.1986), cert, denied, 481 U.S. 1049, 107 S.Ct.

2180, 95 L.Ed.2d 836 (1987)...................... 8

Pembroke v. Wood County, Texas, 981 F.2d 225

I eo ec otk alee one e 1,7,12

vi

TABLE OF AUTHORITIES (continued)

CASES Page

Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct 202, 102

L.Ed. 2d 1, (1988) (per curiam)................ 8,9,10

Rock Creek Limited Partnership v. State Water

Resources Control Board, 972 F.2d 274 (9th Cir.

1QOB) .. . . . o's ncn pee ae ets oa 8

Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82

L.Ed. 26 76Q Goa ae ae sk ss 9

Texas State Teachers Association v. Garland In-

dependent School District, 489 U.S. 782, 109

S.Ct. 1486, 103 L.Ed. 2d 866 (1989) ...... 8,9,10,13,14

United Handicapped Federation v. Andre, 622 F.2d

S342 (Oth Che. RO ee esses. 8

STATUTES

28 U.S.C. | LR ee cask 8

28 U.S.C. § 1884 ee cc... 2

28 U.S.C. © Se ee eee exes 2

42 U.S.C. § SRB eee 2,4,6,9

43 753.C. § 1068 «fo ee es 2,6,7,9,10,13

1

IN THE

SUPREME COURT OF THE UNITED STATES

WOOD COUNTY, TEXAS,

SHERIFF FRANK WHITE,

DEPUTY JAMES ROBERTS

Petitioners

versus

LARRY PEMBROKE, ET AL

Respondents

PETITION FOR WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

REFERENCE TO OPINIONS

The official reference to the decision of the United

States Court of Appeals for the Fifth Circuit is Pembroke

v. Wood County, Texas, 981 F.2d 225 (5th Cir. 1993). The

United States District Court for the Eastern District of

Texas did not render an opinion. That Court’s Findings of

Fact and Conclusions of Law appear in Appendix B, and its

Judgment appears in Appendix C. That Court’s Order de-

nying Plaintiffs’ Motion for Attorneys Fees appears in Ap-

pendix D.

2

GROUNDS ON WHICH JURISDICTION IS INVOKED

The judgment to be reviewed is an opinion of the

United States Court of Appeals for the Fifth Circuit

entered on January 20, 1993. The Supreme Court has

jurisdiction 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This case involves the proper application of 42 U.S.C.

§ 1988, the full text of which is set forth verbatim in the

Appendix E.

STATEMENT OF THE CASE

(i) Basis of Federal Jurisdiction

This is a Petition to the United States Supreme Court

requesting issuance of a Writ of Certiorari to review a

Judgment and Opinion of the United States Court of Ap-

peals for the Fifth Circuit entered on January 20, 1993.

Said Judgment and Opinion reversed, in part, a judgment

of the United States District Court for the Eastern District

of Texas, which as the court of first instance, properly exer-

cised its jurisdiction pursuant to 28 U.S.C. §§ 1331 and

2201.

(ii) Course of Procedings and Disposition of the

Court Below

In December, 1985, Dennis }fcKeever and Trent

Commander, individually, and on behalf of others similarly

situated, instituted an action under 42 U.S.C. § 1983

against Wood County, Texas, Sheriff Frank White, and

Deputy James Roberts. The action sought monetary

damages, actual and punitive, declaratory and injunctive

3

relief. Plaintiffs complained of numerous conditions of con-

finement in the Wood County Jail, alleging violations of

the First, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution. Plaintiffs also alleged

violations of state law governing jail standards.

The district court certified a class of prisoners. The

case proceeded to trial in February, 1988. Commander’s in-

dividual claims were dismissed due to his failure to appear

at docket call. McKeever’s individual claims proceeded to

jury trial. Class damage claims were waived and class

claims for injunctive and declaratory relief were tried to the

court.

The jury returned a verdict for the defendants on

McKeever’s individual claims. Upon receipt of the jury ver-

dict, the district court denied all relief to the class. Judg-

ment was entered in favor of all defendants.

On appeal, the United States Court of Appeals for

the Fifth Circuit vacated the judgment of the district

court. The Court of Appeals remanded for entry of findings

of fact and conclusions of law on the class claims.

In October, 1991, the district court denied all class

relief, decertified the class, and entered final judgment in

favor of the defendants. The class applied to the district

court for an award of attorney’s fees. The district court

denied the requests for attorney’s fees. The class appealed

both the denial of relief on the merits and the denial of at-

torney’s fees to the United States Court of Appeals for the

Fifth Circuit. The appeals were consolidated. In January,

1993, the Court of Appeals affirmed in part and reversed

and remanded in part.

The district court’s denial of relief on the merits was

4

affirmed. However, the Court of Appeals reversed the

district court’s finding that the class was not a prevailing

party, and thus, reversed the denial of attorneys fees. The

Court of Appeals remanded for an award of attorney’s and

costs to the class. The issue of the amount of a reasonable

attorney’s fee is now before the district court. Petitioners

seek this Court’s consideration of whether the class is a

prevailing party and whether it is entitled to an award of

attorney’s fees vel non.

(iii) Statement of Facts

The facts giving rise to this litigation can be sum-

marized briefly. In December, 1985, two individuals and a

class of prisoners confined in the Wood County Jail com-

menced an action under 42 U.S.C. § 1983 against Wood

County, Texas, Sheriff Frank White and Deputy James

Roberts. All plaintiffs made numerous complaints concern-

ing the conditions of confinement in the Wood County Jail

and sought actual and punitive damages, declaratory and

injunctive relief. In addition, the class sought the appoint-

ment of a receiver or special master to monitor jail opera-

tions. The prisoners’ complaints addressed a broad spec-

trum of conditions and conduct, including general condi-

tions of confinement, improper classification, poor jail ad-

ministration, unsanitary cells, inadequately lighted

facilities, inadequate medical and dental treatment, limited

access to telephones and reading materials, overly restric-

tive visitation policies, improper mai handling, denial of

access to the courts, and summary punishment of prisoners

without due process of law.

Wood County is a small, rural East Texas county.

During the 1980's, demographic projections indicated that

the jail facility would be inadequate. In 1983, a citizens’ ad-

visory board was appointed by the county commissioners

5

at the request of the county judge to examine the needs of

the county. During 1984, an inspector for the Texas Com-

mission on Jail Standards advised county officials that the

jail facility would soon require an increase in population

capacity to allow proper classification of inmates. The

county purchased land for construction of a new jail facility

in May, 1985. Construction of a new facility commenced

and the new Wood County Correctional Facility was oc-

cupied in 1988.

In addition to changes in the physical facility,

changes in policy were initiated. As early as 1985, an in-

spector for the Texas Commission on Jail Standards recom-

mended the hiring of a jail administrator to assist in the

transition from the old jail facility to the new facility. In

January of 1987, the county employed a jail administrator.

During her tenure as the chief administrative officer, she

updated and upgraded jail procedures and policies re-

garding the care and treatment of persons in custody in the

Wood County Jail.

In February, 1988, the damage claims of McKeever

and the equitable claims of the class came to trial. During

the presentation of the court’s charge to the jury, the

district court opined that regarding access to the courts,

punitive isolation and classification, defendants’ conduct

fell below a constitutional minimum. However, with regard

to all other challenged conditions of confinement, the

district judge stated that the defendants had either

satisfied constitutional requirements or that questions of

fact remained for jury consideration. The district court in-

structed the jury to determine whether plaintiff had been

unconstitutionally confined from a totality of the cir-

cumstances. The jury returned a verdict for the defend-

ants. Based upon the jury’s verdict the district court

denied all relief to the class. Judgment was entered for

6

defendants and the jury’s verdict was not appealed.

However, the class did appeal the denial of

declaratory relief. The Court of Appeals vacated the judg-

ment of the district court and remanded for findings of fact

and conclusions of law. The district court entered findings

of fact and conclusions of law and again denied all relief to

the class. The district court also denied prevailing party

statuts to the class for purposes of a § 1988 attorney’s fee

request.

The Court of Appeals for the Fifth Circuit affirmed

the district court’s judgment on the merits. The Court of

Appeals reversed the fact finding and determined de novo

that the plaintiff class was entitled to prevailing party

status because the favorable changes in policy at the Wood

County Jail were implemented after suit was filed and prior

to the trial of the case. The Court of Appeals held that

these favorable changes were caused by the prisoners’

lawsuit and thus they were entitled to prevailing party

status.

QUESTION PRESENTED:

Whether a judicial pronouncement that un-

constitutional conditions of confinement in a

county jail were remedied by the commencement

of a 42 U.S.C. § 1983 class action against a county

government and officials—unaccompanied by a

judgment, conscent decree, or settlement from

any defendant—is a ‘“‘material change in the legal

relationship” between the prisoner class and

county sufficient to confer prevailing party

status on the class for purposes of a 42 U.S.C. §

1988 attorney’s fee application.

REASONS FOR GRANTING CERTIORARI

Petitioners are aware that review by Writ of Cer-

7

tiorari is not a matter of right, but of judicial discretion,

and is granted only when special or important reasons re-

quire. This case is important and requires Supreme Court

attention for three reasons. First, it provides the court an

opportunity to revisit and further define the minimum or

threshold level of success necessary for a civil rights plain-

tiff to attain prevailing party status for purposes of 42

U.S.C. § 1988 fee application. Second, it provides the Court

an opportunity to announce whether the ‘catalyst test’’

has vitality in § 1988 jurisprudence. This important ques-

tion of federal law has been affirmatively decided by

numerous Courts of Appeal but has not been and should be

decided by the Supreme Court. Finally, Petitioners are of

the opinion that the Court of Appeals for the Fifth Circuit

has, in this case, granted prevailing party status to the

class in conflict with the applicable decision of this Court,

specifically, Estate of Farrar v. Hobby, — U.S. —, 135 S.Ct.

566, — L.Ed.2d — (1992).

ARGUMENT

A.

Title 42 U.S.C. § 1988 provides that “‘the court, in its

discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the

costs.’’ The issue in this case is whether a party who fails

to obtain either an enforceable judgment on the merits of

any claim or comparable relief through either a consent

decree or settlement is a prevailing party for purposes of a

fee request. Plaintiffs were granted prevailing party status

by the Court of Appeals based upon that Court’s deter-

mination that certain challenged conditions of confinement

improved at the Wood County Jail subsequent to the filing

of the instant lawsuit and that defendant failed to show

these improvements to be a gratuitous response. Pembroke

8

v. Wood County, Texas, 981 F.2d 225 (5th Cir. 1993).

The rationale for prevailing party status that was

urged by the class and accepted by the Court of Appeals for

the Fifth Circuit was based upon Associated Builders and

Contractors of Louisiana, Inc. v. Orleans Parish School

Board, 919 F.2d 374 (5th Cir. 1990). In Associated

Builders, the Fifth Circuit held that a plaintiff may claim

prevailing party status in the absence of a judgment if two

elements are established prima facie: ‘‘(1) that the goal of

the lawsuit was achieved, and (2) that the suit itself caused

the defendants to remedy the [complained of conditions]”’.

Id. at 378 (citing Hennigan v. Quachita Parish School Bd.,

749 F.2d 1148, 1155 (5th Cir. 1985)). If established, a de-

fendant bears the burden of showing its conduct to be a

‘wholly gratuitous’’ response. Jd. Other circuits have also

recognized some formulation of this ‘‘catalyst test’’ to con-

fer prevailing party status in the absence of a judgment.

See Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978); Har-

rington v. DeVito, 656 F.2d 264 (7th Cir. 1981); United

Handicapped Federation v. Andre, 622 F.2d 342 (8th Cir.

1980); Rock Creek Limited Partnership v. State Water

Resources Board, 972 F.2d 274 (9th Cir. 1992); Foremaster

v. City of St. George, 882 F.2d 1485 (10th Cir. 1989), cert.

denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300

(1990); but c.f Palmer v. City of Chicago, 806 F.2d 1316

(7th Cir. 1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2180,

95 L.Ed.2d 836 (1987).

This Court has refined the definition of prevailing

party in four recent cases. Hewitt v. Helms, 482 U.S. 755,

107 S.Ct. 2672, 96 L.Ed.2d 654 (1987); Rhodes v. Stewart,

488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam);

Texas State Teachers Association v. Garland Independent

School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d

866 (1989); and Estate of Farrar v. Hobby, —U.S. —, 113

9

S.Ct. 566, — L.Ed.2d — (1992).

Certain Courts of Appeals have addressed the issue

of whether a plaintiff may prevail for purposes of a § 1988

fee request in the absence of judicial relief. The Court of

Appeals for the First Circuit has recognized a dichotomy

where a Plaintiff may prevail for purposes of a § 1988 fee

request request under one of two theories. See e.g.

Langston v. Johnson, 928 F.2d 1206 (1st Cir. 1991) (discus-

sion of ‘‘merits test’’ and ‘‘catalyst test’’). The ‘‘merits

test’’ derives from Garland and permits the award of §

1988 fees if a plaintiff ‘succeeds on a significant issue in

litigation which achieves some of the benefit the parties

sought in bringing suit.’’ Garland, 489 U.S. at 789, 109

S.Ct. at 1491-92. Courts of Appeals have applied the

“catalyst test”’ to ‘plaintiffs who have succeeded in achiev-

ing favorable results because of the filing of their § 1983

claim, but have not had a final judgment on the merits

entered in their favor.’’ See also Nadeau, 581 F.2d at 278-79

(1st Cir. 1978). In Garland, this Court “synthesized the

teachings of Hewitt and Rhodes,” to formulate the current

prevailing party analysis. Farrar, — U.S. —, 113 S.Ct., at

572. Farrar specifically embraces the concept that a prevail-

ing party must have obtained some relief on the merits. Jd.

at 573. The Supreme Court has yet to address what cir-

cumstances, if any, would allow a plaintiff to prevail under

the “‘catalyst test’, Hewitt, 482 U.S., at 763; 107 S.Ct., at

2677.

Supreme Court jurisprudence has established that

the settlement of a case will not preclude an award of fees,

Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82

L.Ed.2d 746 (1984), and that an award of fees may be made

short of a full litigation of the issues and a judicial deter-

mination in plaintiff’s favor, Maher v. Gagne, 448 U.S. 122,

100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)(consent decree).

10

In Texas State Teachers Association v. Garland In-

dependent School District, 489 U.S. 782, 109 S.Ct. 1486,

103 L.Ed.2d 866 (1989), this Court announced ‘‘the proper

standard for determining whether a party has ‘prevailed’ in

an action brought under certain civil rights statutes such

that the party is eligible for an award of attorney’s fees”

under 42 U.S.C. § 1988.

Garland established the minimum level of success as

follows:

If the plaintiff has succeeded on “‘any significant

issue in litigation which achieve[d] some of the

benefit the parties sought in bringing suit,’’ the

plaintiff has crossed the threshold to a fee award

of some kind. Nadeau, 581 F.2d, at 278-279. The

floor in this regard is provided by our decision in

Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96

L.Ed.2d 654 (1987). As we noted there, ‘‘[rjespect

for ordinary language requires that a plaintiff

receive at least some relief on the merits of his

claim before he can be said to prevail.’’ Jd., at 760,

107 S.Ct., at 2675. Thus, at a minimum, to be con-

sidered a prevailing party within the meaning of

§ 1988, the plaintiff must be able to point to a

resolution of the dispute which changes the legal

relationship between itself and the defendant. /d.,

at 7600-761, 107 S.Ct., at 2675-2676; Rhodes v.

Stewart, 488 U.S. 1, 3-4, 109 S.Ct. 202, 203-204,

102 L.Ed.2d 1 (1988). Beyond this absolute

limitation, a technical victory may be so insignifi-

cant, and may be so near the situations addressed

in Hewitt and Rhodes, as to be insufficient to sup-

port prevailing party status.

Id., at 791, 792; 109 S.Ct. at 1493.

11

This Court in Estate of Farrar v. Hobby, — U.S. —,

113 S.Ct. 566, 574, — L.Ed.2d — (1992), was again called

upon to address the level of victory necessary to qualify as

a prevailing party. This Court held that a judgment for

nominal damages was sufficient. Farrar reiterates that to

qualify as a prevailing party ‘‘a civil rights plaintiff must

obtain at least some relief on the merits of his claim. Jd., —

U.S. —, 113 S.Ct. at 573. The Court delineated specific

relief, such as “‘obtain{ing] an enforceable judgment or com-

parable relief through a consent decree or settlement.” Jd.

(citations omitted). This Court stated that “‘[ojnly under

these circumstances”’ can the civil rights litigation effect

‘the material alteration of the legal relationship of the par-

ties.’ Id. To emphasize the necessity of a change in the

legal relationship between the parties, Farrar states that

‘‘[njo material alteration of the legal relationship between

the parties occurs until the plaintiff becomes entitled to en-

force a judgment, consent decree, or settlement against the

defendant.” /d., at —, 113 S.Ct., at 574.

B.

Applying these principles to the instant case, it is

clear that plaintiffs are not prevailing parties under

Supreme Court formulations. Neither of the individual

plaintiffs received any relief on the merits. One case was

dismissed and the other resulted in a defense jury verdict.

Likewise, neither the district court nor the Court of Ap-

peals has granted the class any requested relief on the

merits that altered the “‘legal relationship’’ between the

class and the defendants. The class abandoned claims for

damages in the district court, and both injunctive and

declaratory relief were denied by the district court and the

Court of Appeals. No judgment has ever been entered in

favor of the class. No equitable decree has ever been

entered in favor of the class. Neither settlement nor con-

sent decree pertains to any defendant.

12

To the contrary, the only measure of success from a

judicial source is a favorable statement of law concerning

certain conditions of confinement contained in the trial

court’s jury charge. This statement was not reduced to

judgment or decree in any form and did not form the basis

of any relief to the plaintiff class. Farrar clearly states that

such a pronouncement, unaccompanied by any relief on the

merits, will not confer prevailing party status on a civil

rights plaintiff. Farrar, U.S. at —, 113 S.Ct., at 573-74.

Plaintiffs’ claim for prevailing party status rests

solely upon the viability of Associated Builders, supra, and

its formulation of the ‘‘catalyst test.’’ Petitioncrs contend

that the grant of prevailing party status under Associated

Builders is inconsistent with Farrar. In support of its

adherence to Associated Builders, the Court of Appeals sua

sponte addressed and distinguished Farrar. See Pembroke,

981 F.2d at 231, note 27. The Court of Appeals acknowledg-

ed that a plaintiff prevails in his claim when he obtains ‘‘ac-

tual relief on the merits of his claim that materially alters

the legal relationship between the parties...’’ Jd. quoting

Farrar at —, 113 S.Ct. at 573. Petitioners agree that this is

the proper legal standard. However, the Court of Appeals

concluded that ‘‘[uJnlike Farrar, changes in the legal rela-

tionship between the Plaintiffs and Defendants in this case

were wrought by the bringing of the litigation itself, not

with recovery of monetary damages. Thus, although the

Plaintiffs received no monetary award, they are still entitl-

ed to an award of reasonable attorneys’ fees.’’ Pembroke,

981 F.2d 231, note 27. Petitioners contend that the Court

of Appeals’ distinction misapplies Farrar.

The Fifth Circuit’s distinction between Farrar and

the instant case was premised upon the differences in relief

sought. Farrar sought millions in actual damages and

13

received a judgment for $1.00 in nominal damages. Plain-

tiffs in this case abandoned damage claims and sought only

prospective remedies. Jd. Applicants respectfully urge that

the Court of Appeals was dissuaded from applying Farrar

by a distinction that is immaterial to the resolution of the

prevailing party issue. The ratio decidendi of Farrar is not

restricted to cases in which a plaintiff seeks monetary

damages versus some other form of affirmative relief. The

fact that Farrar sought millions and received a single dollar

does not alter the fact that an enforceable judgment was

secured. Notwithstanding Farrar’s minimal recovery

against the defendant, the plaintiff prevailed nonetheless

because an enforceable judgment was obtained. Farrar, —,

113 S.Ct. at, 574. This Court stated that the ”‘technical’”

nature of nominal damages award or any other judgment

does not affect the prevailing party inquiry, it does bear on

the propriety of fees awarded under § 1988.” Jd.

The Court of Appeals for the Fifth Circuit erred in

misapplying Farrar and by finding a change in the “‘legal

relationship’’ between the parties was brought about by

the litigation itself. Even accepting arguendo the Court of

Appeals’ determination that the lawsuit caused changes in

jail policy, it does not follow that these changes affected a

material change in the legal relationship between the par-

ties. For as Farrar makes clear, the touchstone of a changed

legal relationship does not occur ‘until the Plaintiff

becomes entitled to enforce a judgment, consent, decree or

settlement against the Defendant.’’ Jd. —, 113 S.Ct. at,

574. In this case, over seven years after the commencement

of litigation, no plaintiff is entitled to enforce a judgment,

consent, degree, or settlement against any defendant.

Under Associated Builders, and other cases applying

a formulation of the ‘‘catalyst test’, a plaintiff may prevail

without altering the “‘legal relationship’’ between the par-

14

ties as contemplated by Garland and Farrar. The instant

case is an instructive example of this proposition. The only

measure of victory that the plaintiff class can claim is a

federal court’s pronouncement that prior to commence-

ment of this lawsuit certain conditions of confinement in

the Wood County Jail were below a constitutional

minimum, and by the time of trial in 1988, these substan-

dard conditions had been rectified. As this Court stated in

Farrar, ‘‘a judicial pronouncement that defendant has

violated the Constitution, unaccompanied by an en-

forceable judgment on the merits, does not render the

plaintiff a prevailing party.’’ Jd. —, 113 S.Ct., at 573.

CONCLUSION

The Court of Appeals’ reliance on Associated

Builders allows plaintiffs to achieve prevailing party

status, even though their level of success on the merits falls

below the threshold articulated in Garland and Farrar.

Petitioners respectfully request that the Supreme Court

order the issuance of a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

CHARLES H. CLARK, P.C.

Hiudd HG

Charles H. Clark

Bar I. D. No. 04274000

P.O. Box 98

604 Woldert

Tyler, Texas 75710

903/593-2514

ATTORNEY FOR PETITIONERS

A-l

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4079

& 92-4250

FILED

JAN 20 1993

D.C.. DOCKET No. 6:85-CV-475

LARRY PEMBROKE, ET AL.,

Plaintiffs-Appellants,

versus

WOOD COUNTY, TEXAS, ET AL..,

Defendants-Appellees.

Appeals from the United States District Court for the

Eastern District of Texas

Before POLITZ, Chief Judge, and WISDOM and

WIENER, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on ap-

peal and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the district

court’s denial of declaratory relief in this cause is affirmed;

the district court’s denial of prevailing party status is

reversed and the cause is remanded to the district court to

award the plaintiffs reasonable attorney’s fees and costs.

January 20, 1993

ISSUED AS MANDATE: FEB 11 1993

A true copy

Test:

Clerk, U.S. Court of Appeals, Fifth Circuit

By /s/_ legible

Deputy

New Orleans, Louisiana FEB 11 1993

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Larry PEMBROKE, et al.,

Plaintiffs-Appellants,

Vv.

WOOD COUNTY, TEXAS, et al.,

Defendants-Appellees.

Nos. 92-4079, 92-4250.

United States Court of Appeals,

Fifth Circuit.

Jan. 20, 1993.

Prisoners at county jail brought civil rights action

for defendants’ alleged violation of their constitutional

rights. The United States District Court for the Eastern

District of Texas, Robert M. Parker, Chief Judge, entered

judgment denying prisoners’ claims, and prisoners appeal-

ed. The Court of Appeals, 880 F.2d 411, vacated and

remanded for entry of findings of fact and conclusions of

law. Upon remand, the District Court entered findings,

once again denied prisoners’ claims, and denied prisoner’s

request for prevailing party status and reasonable attorney

fees and costs. Appeal was taken. The Court of Appeals,

Wisdom, Circuit Judge, held that: (1) prisoners were not en-

titled to declaratory relief, absent showing that conditions

complained of might reappear in future; (2) prisoners could

not be placed in punitive isolation without due process pro-

tections; and (3) prisoners were ‘‘prevailing parties’’ entitl-

ed to award of attorney fees, notwithstanding their failure

to obtain any declaratory or monetary relief.

Affirmed in part, and reversed and remanded in part.

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Appeal from the United States District Court For

the Eastern District of Texas.

Before POLITZ, Chief Judge, and WISDOM and

WIENER, Circuit Judges.

WISDOM, Circuit Judge:

Two prisoners filed an action under 42 U.S.C. § 1983

alleging denial of access to the courts, improper classifica-

tion of prisoners, punitive isolation without due process,

improper restriction of reading materials, inadequate med-

ical care, and additional generally unacceptable prison con-

ditions. The district court certified a class of all present and

future inmates. The individual prisoners’ claims were tried

to a jury while the class claims were simultaneously tried

to the court. After the jury rendered a verdict for the state

denying the individual prisoners any recovery, the court

denied the class claims as well. The plaintiff class appealed

this decision and in an unpublished opinion this Court

vacated the district court’s decision and remanded the case

for entry of finding of fact and conclusions of law.! Upon

remand the court entered its findings and once again

denied the class claims. In a later proceeding, the court

denied the plaintiff's request for prevailing party status

and reasonable attorney’s fees and costs.We affirm in part,

reverse in part, and remand with instructions to award

reasonable attorney’s fees and costs to the plaintiffs.

I

This suit was originally instituted by Wood County

Jail prisoners Dennis McKeever and Trent Commander.

The suit was filed in December 1985 under 42 U.S.C. § 1983

1 Pembroke v. Wood Country, 880 F.2d 411 (5th Cir. 1989).

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alleging that the conditions at the prison violated their con-

stitutional rights.2 The plaintiffs sought damages in-

dividually and sought declaratory and injunctive relief on

behalf of the entire class of inmates. The district court cer-

tified a class of all present and future inmates confined and

to be confined in the Wood County Jail. The class waived

its damages claim and proceeded to trial seeking only

declaratory and injunctive relief.

The conditions at the Wood County Jail at the time

suit was filed in 1985 were indeed substandard. According

to the district court’s factual findings, the classification

system was not properly implamented. As a result, pretrial

detainees were not separated from convicted felons. In ad-

dition, the court found that ‘treading materials’ consisted

of one bible and class members were denied access to the

county law library for a period of seven months. Finally the

court found that one of the named plaintiffs had been plac-

ed in isolation for punitive purposes without due process

protections.

These were not the only problems at the jail. The

facility was in a general state of disarray. Administration

of the facility had been delegated to untrained staff

members; repeated state standards violations were never

recorded or addressed; medical attention was erratic; and

the plumbing was in a constant state of disrepair resulting

in raw sewage overflowing the showers and toilets for

months at a time. The jail was always in semi-darkness in

violation of state lighting standards. Visitation privileges

were arbitrarily restricted. The prisoners were sometimes

sprayed with mace as a form of punishment.

2 Specifically, the complaint alleged that the conditions at the jail

violated rights guaranteed by the First, Fourth, Eight, and Fourteenth

Amendments to the United States Constitution.

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By the time the case came to trial in February 1988,

most if not all of the complained of conditions had been

remedied. A prison administrator, hired in January 1987

two years after the suit was filed, instituted a total reform

of the facility. The prisoners were properly classified, given

access to the county law library and reading materials, pro-

per procedural safeguards were instituted regarding the

use of punitive isolation, and the other conditions com-

plained of were corrected. In addition, the county began the

construction of a new prison facility. The prisoners were

moved to this facility and the old jail was closed in 1988

after the trial. Of the two original individual plaintiffs, only

McKeever showed up for trial. McKeever’s claims were

tried to a jury while the class claims were tried

simultaneously to the court. The court submitted

McKeever’s individual claims to the jury by a general

charge, keeping the class claims for declaratory relief under

advisement pending the jury’s verdict.

The court instructed the jury to find for McKeever

only if it determined that, under the totality of the cir-

cumstances, the plaintiff had been unconstitutionally con-

fined in the jail. After the charge was made, and during the

time allotted for counsel to object to the charge, the trial

judge clarified his charge to facilitate review by this Court.

He stated in his charge to the jury that ‘‘[t]he court has

found on the points concerning the legal material, concern-

ing the matter of reason for the single cell isolation ... {a]nd

concerning classification ... reasonable minds could not dif-

fer that under the facts of this case, the facts constituted

a viclation of minimum constitutional standards’’.? In

spite of these instructions, the jury returned a verdict in

favor of the defendants. This verdict is not the subject of

this appeal, because the individual claims were abandoned

3 Record on Appeal, vol. 4, p. 658.

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by McKeever, who is now deceased. Mr. Pembroke was

substituted as the class representative.

In the light of the jury's verdict, the court decided

the class clairns in favor of the defendants without stating

any factual findings or conclusions of law. The plaintiffs

appealed this decision. In an unpublished opinion, this

Court vacated and remanded for entry of findings of fact

and conclusions of law.5 Upon remand, the court issued its

factual findings and conclusions of law and once again

denied the class claims. The court then dismissed the case

with prejudice and ordered that the class be decertified.

The plaintiffs appealed this decision. In addition, in a later

proceeding, the court denied the plaintiffs’ request for

prevailing party status, thus denying their request for

reasonable attorney’s fees and costs. The plaintiffs appeal

this decision as well. The two appeals were consolated and

this appeal followed.

II

[1,2] We review a district court’s refusal to grant

declaratory relief for abuse of discretion.6 Jn Hollis v.

Itawamba, County Loans, we stated that ‘“‘[t]he issue of

whether to grant a declaratory judgment is left to the

district court’s sound discretion to ensure that subsequent

events have not ... made declaratory relief inappropriate’’.’

[3] The district court denied declaratory relief based

4 For convenience we sometimes use the term “‘plaintiffs’’ to refer to the

plaintiffs in the class claim.

5 Pembroke v. Wood County, 880 F.2d 411 (5th Cir.1989).

6 Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991); Hollis v.

Itawamba County Loans. 657 F.2d 746, 750 (5th Cir.1981).

7 Hollis, 657 F.2d at 750.

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on its finding that the case was moot. The court found that

because the jail conditions complained of by the plaintiff

were remedied before the case came to trial they did not

pose a continuing threat of harm to the class members.

Further, based on what it characterized as “good at-

titudes’’ on the part of the defendants, the court also con-

cluded that there was no threat that these types of condi-

tions would arise in the future. Relying on Golden v.

Zwickler,® and United States v. W.T. Grant Co.,9 the court

reasoned that because the problem was remedied before

trial, some danger that the harm would be repeated must

exist in order to warrant declaratory relief. In the absence

of any such danger, the case is moot. We agree.

The plaintiffs argue that they are entitled to some

relief upon the finding of any constitutional violation

whether or not these conditions existed on the trial date or

threaten to recur in the future. They rely on Green v.

Ferrell,/° where the Court remanded and suggested that

declaratory relief would be an appropriate remedy for un-

constitutional prison conditions. This case does not sup-

port their argument. In Green, the complained of condi-

tions were still in existence when the case came to trial.!!

In addition, the plaintiffs also rely on Morrow v.

Harwell,!2 arguing that even where the defendants

demonstrate a willingness to comply with constitutional

standards in the future, declaratory relief is still proper.

8 394 U.S. 103, 108-09, 89 S.Ct. 956, 959-60, 22 L.Ed.2d 113 (1969).

9 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).

10 801 F.2d 765 (5th Cir.1986) rehearing denied 807 F.2d 995 (5th

Cir. 1986).

1] 7q

12 768 F.2d 619 (5th Cir.1985).

LL

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This case is distinguishable from the present case for the

same reason we distinguished Green. Although the County

changed some of its unconstitutional practices before the

appeals was heard, they were still in existence when the

case reached the magistrate.!5 The Court noted that

declaratory relief would have been proper even had the con-

ditions been remedied before the case was tried, yet it by

no means held that such relief is required. Such a deter-

mination is left to the discretion of the trial court.

The proper standard for review is abuse of discretion.

The record does not support a finding of abuse. The plain-

tiffs do not contend that any of the complained of condi-

tions existed at the time the case came to trial. The plain-

tiffs argue that the defendants could easily return to their

unconstitutional practices in the future. Yet, they offer no

evidence to support this allegation. The district court

described the defendants as having ‘‘good attitudes’’ and

found no danger of the poor conditions recurring in the

future. The fact finder is in the best position to judge the

credibility of witnesses and we will reverse its finding only

if it is clearly erroneous. The court’s findings on this point

are adequately supported by the record and are not clearly

erroneous. We therefore affirm its determination that the

case was moot and we agree with its decision to deny

declaratory relief.

[4] Although we do not find error in the court’s deci-

sion to deny declaratory relief we cannot turn a blind eye

to the conditions at the Wood County Jail as they existed

prior to the trial date. The district court found that

McKeever was placed in isolation for five days for the pur-

pose of punishment, without due process protections. The

court made no finding that this was a class-wide problem;

13 Jd at 626-27.

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however, the record reflects uncontroverted evidence that

punitive isolation, without due process protections, was

commonly used. The use of punitive isolation without affor-

ding due process is unacceptable and violates the 14th

Amendment.!4

[5] The court also found that class members were

denied access to the county library for a period of seven (7)

months. In its jury charge for McKeever’s individual claim,

the court stated that ‘‘on the points concerning the legal

material ... reasonable minds could not differ that under the

facts of this case, the facts constituted a violation of

minimum constitutional standards’’.15 We agree. Even if

the court had not openly characterized this condition as a

constitutional violation, it would still constitute a violation

according to the precedent in this Circuit. In Morrow v.

Harwell, this Court applied the Supreme Court’s mandate

that prisons supply “adequate law libraries or adequate

assistance from persons trained in the law”’ in order to com-

ply with the prisoner’s constitional right to meaningful ac-

cess to the courts.!® The Court held that access to a weekly

bookmobile coupled with circumscribed assistance from

law students was insufficient.!7 Certainly no access to any

library or any legal assistance violates, the Bounds

standard.

[6] Finally, the court found that the classification

system was not fully utilized, before the filing of the

14 Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978. 41

L.Ed.2d 935 (1974).

15 Record on Appeal, vol. 4, p. 658.

16 Morrow, 768 F.2d at 622 (quoting Bounds v. Smith, 430 U.S. 817.

828, 97 S.Ct. 1491, 1498, 52 L.E.2d 72 (1977)).

17 74.

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lawsuit in that pretrial detainees were not segregated from

convicted felons. The court drew no legal conclusion from

these facts in reference to the class claims; however, the

court instructed the jury regarding McKeever’s individual

claim that the “classification [system] ... constituted a

violation of minimum constitutional standards”.18 We

agree. It is clear from the record and reflected in the

district court’s findings that there was absolutely no

classification system in place when the suit was filed.

Under Jones v. Diamond,'9 failure to adequately classify

inmates is a violation of the Eighth Amendment’s prohibi-

tion against cruel and unusual punishment.

[7] The plaintiff class also complains of several addi-

tional conditions that existed in the jail when they filed

suit.29 Because they failed to raise these issues in their

first appeal, we decline to discuss them at this time.”! We

do note, however, that the arbitrary restriction of reading

materials to one bible without showing a need for such a

restriction based on prison security is an unacceptable in-

fringment on the prisoners First Amendment rights.22

18 Record on Appeal, vol. 4, p. 658.

19 636 F.2d 1364, 1374 (5th Cir.1981) (en banc), cert. dismissed, 453 U.S.

950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), overruled on other grounds,

International Woodworkers of America v. Champion International Cor-

poration, 790 F.2d 1174 (5th Cir.1986).

20 The list of complaints included poor lighting, the presence of raw

sewage for extended periods of time, inadequate medical and dental

care, arbitrary restrictions on reading materials, arbitrary restrictions

on visitation rights, and the use of mace as a punishment.

21 See Brooks v. United States, 757 F.2d 734, 739 (5th Cir.1985).

22 In Green v. Ferrell, this court held that a jail’s prohibition on

newspapers and magazines violated the First Amendment. 801 F.2d at

773. The Supreme Court has recognized a prison’s right to infringe on

its inmates First Amendment rights. Such infringement, however,

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III

[8] Plaintiffs contend that the district court erred in

denying them prevailing party status. They argue the con-

ditions of the Wood county Jail were improved as a result

of their filing suit. This fact is undeniable. Under 42 U.S.C.

§ 1988 they should receive reasonable costs and attorney’s

fees.

[9] In Associated Builders & Contractors of Lou-

isiana, Inc. v. Orleans Parish School Board,2° this Court

held that the plaintiff is entitled to prevailing party status

if he establishes two elements: ‘‘(1) that the goal of the law

suit was achieved, and (2) that the suit itself caused the

defendant to remedy the [complained of conditions]’’. If the

plaintiff can make this prima facie showing, the burden

shifts to the defendant to show that its conduct was ‘“‘whol-

ly gratuitous’’.24

The plaintiffs contend that the purpose of their suit

was to improve the conditions of confinement for members

of the class. Conditions were improved by time of trial, but

not until after the plaintiffs filed suit. The substantial im-

provements noted by the court meet this goal. The defend-

ants counter, contending that the ‘‘goal’’ of the plaintiffs’

(footnote 22 continued.)

must be ‘‘evaluated in light of the central objective of prison administra-

tion, safeguarding prison security’’. Bell v. Wolfish, 441 U.S. 520, 547,

99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). The district court did not

conduct such an evaluation; however, it noted that the jail officials said

that reading materials were a fire hazard. Under Green and Beil this

reason would not jusitfy the prison’s infringement on the plaintiffs’ con-

stitutional rights.

23919 F.2d 374, 378 (5th Cir.1990).

247q.

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suit was nothing more than money damages or a declara-

tion by the court that the plaintiff's constitutional rights

had been violated. But the class waived any claims for

money damages. The defendants would have us believe

that the plaintiff class sought merely to have the court

declare that their rights had been violated. We reject this

argument. The prison conditions for persons confined in

Wood County, Texas now pass constitutional muster. The

goal of the suit has been accomplished.

[10] Next the plaintiffs must establish that the suit

caused the defendants to remedy the prison conditions.

Causation is a question of fact and ‘‘the district court’s

answer will stand on appeal unless clearly erroneous’’.2°

The district court found that the plaintiffs’ suit was

not the cause of the improvements in the prison conditions.

Although we give great deference to the district court’s fac-

tual findings, we are “‘left with the definite and firm convic-

tion that a mistake has been committed’’26 and reverse its

finding on this point. The district court relied heavily on

the timing of plans for the construction of the new prison

in reaching its conclusion. It brushed over the undisputed

fact that conditions at the old facility were improved

drastically immediately following the filing of this suit. No

evidence of prior plans to improve conditions at the old

facility is in the record. The defendants argue that the im-

provements were merely incidental to the new ad-

ministrator’s presence. They argue that she was hired sole-

ly to aide in the transition from the old facility to the new

25 Heath v. Brown, 858 F.2d 1092, 1094 (5th Cir.1988) (quoting Heath

v. Brown, 807 F.2d 1229, 1234 (5th Cir.1987)).

26 Heath, 858 F.2d aat 1094 (quoting Campos v. City of Baytown, 840

F.2d 1240, 1243 (5th Cir.1988) (quoting Anderson v. City of Bessemer,

470 U.S. 564- 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985))).

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one and not to improve on the conditions at the old facility.

That is a convenient argument, but the truth is that no cor-

rective action was taken until the suit was filed.

Although the plans for a new prison existed before

the plaintiffs filed suit, plans for improving of the old facili-

ty did not. Even if the primary purpose for hiring the new

administrator was to aid in the transition to the new facili-

ty, this does not explain why she implemented such exten-

sive reforms of the old facility. It is undisputed that unac-

ceptable conditions in the old Wood County Jail were

drastically improved immediately following the filing of

this suit. The record supports the inescapable conclusions

that these improvements were caused by the plaintiffs’ fil-

ing suit. We are unwilling to characterize these im-

provements as mere coincidence.

The plaintiff's have met their burden under the

Associated Builders test. The goal of their suit was ac-

complished as a result of their filing suit and the defendant

has failed to show that the improvements were ‘‘wholly

gratuitous’. For this reason, the plaintiffs are entitled to

prevailing party status. In accordance with the status, the

plaintiffs should receive reasonable attorney’s fees and

costs.27

27 We are aware of the recent Supreme Court decision in Estate of Far-

rar v. Hobby, ___ U.S. __, 113 S.Ct. 566, L.Ed.2d ___ (1992).

Farrar dealt with prevailing party status and the award of attorney's

fees in the contex of nominal damages and is thus distinguishable from

the present case. In Farrar the Supreme Court stated that to be entitled

to attorney's fees, ‘‘[w]hatever relief the plaintiff secures must directly

benefit him at the time of the judgment or settlement.... In short, a

plaintiff “‘prevails when actual relief on the merits of his claim material-

ly alters the legal relationship between the parties by modifying the

defendant's behavior in a way that directly benefits the plaintiff’ Jd. at

___, 113 S.Ct. at 573. The Court held that the plaintiff was not entitled

to attorney's fees where he had received only a nominal award of one

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We AFFIRM the district court’s denial of

declaratory relief. We REVERSE the district court’s

denial of prevailing party status and REMAND for the

district court to award the plaintiffs reasonable attorney’s

fees and costs.

(footnote 27 continued.)

dollar in spite of the fact that he was technically the prevailing party.

Farrar is clearly distinguishable by the fact that its plaintiffs sought $17

million in compensatory damages whereas the plaintiffs in this case

dismissed their damage claims early on and sought prospective

remedies only. Unlike Farrar, changes in the legal relationship between

the plaintiffs and defendants in this case were wrought by the bringing

of the litigation itself, not with recovery of monetary damages. Thus,

although the plaintiffs received no monetary award, they are still entitl-

ed to an award of reasonable attorney’s fees.

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IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

FILED

OCT 23 1991

LARRY PEMBROKE, et al §

§

VS. § CIVIL ACTION

§ NO. TY-85-475-CA

WOOD COUNTY, TEXAS, §

et al §

8

§

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 22-24, 1988, came on for trial before

this Court the above entitled and numbered cause. The in-

dividual claims of Plaintiff Dennis McKeever were tried to

a jury. The jury found unanimously for the Defendants and

McKeever’s individual claims were dismissed.

Prior to trial the court certified a Plaintiff class

under Fed. R. Civ. P. 23(b)(2), whose claims were tried in

the same trial. Whether the Defendants were liable on the

class claims, and whether and how the court should award

class relief were questions reserved for the court. Having

considered the evidence and arguments of counsel, the

court now enters these Findings of Fact and Conclusions of

Law in conformity with Fed. R. Civ. P. 52(a).

Civil Order Book

Vol. 154 Page 4.

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FINDINGS OF FACT

This action seeks declaratory and injunctive relief

on behalf of a class of prisoners incarcerated in

the Wood County Jail. The class, certified by

Order of this Court pursuant to Fed. R. Civ. P.

23(b) (2) includes present and future inmates in

the Wood County Jail as of December 20, 1985.

Defendant Wood County, Texas is a unit of local

government located within the Eastern District

of Texas, Tyler Division.

Defendant Frank White was the elected Sheriff of

Wood County. White commenced his term in

January, 1985, and continued as Sheriff at all

times relevant to this suit.

Sheriff White was responsible for making policy

decisions for the county and for carrying out the

policies and procedures for the county.

Dennis McKeever, the class representative at the

time of trial was incarcerated in the Wood County

Jail from October, 1985, through March, 1986.

Mr. McKeever died after the end of the trial, but

prior to the entry of these findings of Fact and

Conclusions of Law. Larry Pembroke was

substituted as class representative by Order of

this Court.

Wood County Jail facilities became obsolete in

the early 70’s through fault of Wood County.

Wood County renovated the jail in 1978-1979 in

10.

ae

12.

13.

14.

15.

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an effort to provide an adequate jail facility for

Wood County inmates.

The sanitary conditions at the jail, while not op-

timal, did not violate our common notions of

decency.

The occasional overcrowding, which has occurred

in the past, has been remedied by dedication of

additional funds and employment of new jail

management techniques such that the class is not

harmed or endangered by Problems relating to

overcrowding.

The Classification system was not utilized fully,

prior to the filing of the lawsuit. The pretrial de-

tainees were not segregated from convicted

felons.

Mr. McKeever was placed in isolation for five

days for the purpose of punishment, without due

process protections.

Class members were provided access to

telephones, limited visitation with their im-

mediate family and adequate oopportunity for

physical exercise.

The jail inspected incoming mail addressed to

class members prior to the delivery of the mail to

the addressee for the purpose of intercepting il-

licit materials.

The Defendants were not deliberately indifferent

to known medical conditions of any member of

the class.

16.

17.

18.

19.

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Reading material available in jail was limited to

one Bible. Mr. McKeever’s request that family

members be allowed to bring in newspapers or

books was refused because jail officials said it

was a fire hazard. After law suit was filed, other

reading material was allowed in the jail.

Class members were denied access to the county

law library for a period of seven (7) months. The

class representative, Mr. McKeever, had access

to the courts for both his criminal case and his §

1983 claim through representation by attorneys

from the State and Federal bar. Class members

were not and are not being denied access to

courts.

Conditions relating specifically to classification

of inmates, access to the law library and the

punitive use of solitary confinement without due

process were remedied prior to the trial of this

case. There is no evidence before this court that

these conditions have recurred. Further, there is

no reasonable expectation that these conditions

will recur in the future.

The jail conditions complained of by Mr.

McKeever and found by the court to exist did not

harm or pose any threat of harm to other class

members at the time of trial or at any future time.

The only person with a continued interest in pur-

suing declaratory judgment or other relief is the

plaintiff’s lawyer.

CONCLUSIONS OF LAW

The Plaintiff class seeks declaratory relief from

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the Defendants pursuant to 28 U.S.C. §2201,

which provides in pertinent part:

“In a case of actual controversy within its

jurisdictions, ... any court of the United States

may declare the rights and other legal relations of

any interested party seeking such declaration.”

Having found that Sheriff White was responsible

for making and implementing policy decisions for

Wood County, the Court concludes that Wood

County is a proper party Defendant.

An Article III Court must satisfy itself that sub-

ject matter jurisdiction exists at all times during

the litigation.

Voluntary cessation of allegedly illegal conduct

does not deprive the Court of power to hear and

determine the case, i.e., does not make the case

moot. The case may nevertheless be moot if the

defendant can demonstrate that there is no

reasonable expectation that the wrong will be

repeated. U.S. vs. W. T. Grant Co., 345 U. S. 629,

73 S. Ct. 894 (1953).

Article III Courts do not render advisory opin-

ions. Concrete legal issues, presented in actual

cases, not abstractions, are requisite. This is as

true of declaratory judgments as any other field.

The question in each case is whether the facts

alleged, under all the circumstances show that

there is a substantial controversy between parties

having adverse legal interests of sufficient im-

mediacy and reality to warrant the issuance of a

declaratory judgment. The existence of elements

essential to relief when the action was initiated is

not sufficient. All elements essential to relief

10.

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must exist at the time of the hearing including

some danger that the wrong has caused harm to

the Plaintiff class or will be repeated. Golden vs.

Zwickler, 394 U. S. 104, 89 S. Ct. 956 (1969).

Concluding that there was no reasonable expecta-

tion that the wrongs which occurred in the past

will be repeated, the Court finds nothing in this

case warranting a declaratory judgment. Arm-

strong us. Ward, 529 F. 2d 1132 (1976).

There was no real or immediate threat to Wood

County jail inmates at the time of trial from

Defendant’s use of punitive isolation without due

process. The court finds no reasonable expecta-

tion that Defendants will use punitive isolation

without due process in the future. Therefore, the

class claims on this issue are moot.

Plaintiff class is not entitled to declaratory or in-

junctive relief on the access to court claim

because Wood County Jail personnel or policies

did not impede the Plaintiff class’ access to the

court at the time of trial. There is no reasonable

expectation that Plaintiff class will be denied ac-

cess to courts in the future.

Taking into consideration the limitations of the

physical facilities, and the steps taken to remedy

the problems, Plaintiff class is not entitled to

declaratory or injunctive relief on the issue of

classification. Plaintiff class does not suffer a real

or immediate threat of deprivation of rights con-

cerning classification.

The totality of circumstances of conditions at

11.

12.

13.

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Wood County Jail do not amount to cruel and

unusual punishment under the Eighth Amend-

ment to the United States Constitution.

Plaintiff class claims for declaratory and injunc-

tive relief are denied.

Plaintiff class claims for declaratory and injunc-

tive relief will be dismissed with prejudice. Fed.

R. Civ. P. 12(b)(1).

Judgment shall enter accordingly.

SIGNED this 23rd day of October, 1991.

/s/ Robert M. Parker

ROBERT M. PARKER, CHIEF JUDGE

C-1

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

FILED

OCT 23 1991

LARRY PEMBROKE, et al §

§

VS. § CIVIL ACTION

§ NO. TY-85-475-CA

WOOD COUNTY, TEXAS, §

et al §

§

§

FINAL JUDGMENT

In accordance with the Findings of Fact and Conclu-

sions of Law entered this day it is hereby ORDERED that

Plaintiff class claims are denied and dismissed with pre-

judice. It is further ORDERED that the class is

decertified.

SIGNED this 23rd day of October, 1991.

/s/ Robert M. Parker

ROBERT M. PARKER, CHIEF JUDGE

Civil Order Book

Vol. 154 page 5

sana

D-1

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

FILED

MAR 02 1992

LARRY PEMBROKE, et al §

§

VS. § CIVIL ACTION

§ NO. TY-85-475-CA

WOOD COUNTY, TEXAS, §

et al §

ORDER

Came on for consideration Plaintiffs’ Motion for At-

torney’s Fees. After due consideration, the Court is of the

opinion that the motion should be denied, for the following

reasons:

First, the goals of the lawsuit as articulated in the

Plaintiffs’ complaint included an award of damages,

declaratory judgment and injunctive relief for the Plain-

tiffs. The court’s judgment denied and dismissed those

causes of action.

Second, the Plaintiff now characterizes the goal of

the lawsuit as an attempt to improve the conditions of con-

finement for Wood County, Texas jail inmates, and claims

success because current conditions are better than condi-

tions existing at the time this lawsuit was filed. The Court

notes that Wood County had identified the fact that its jail

facilities were inadequate and began plans for building a

new jail before the lawsuit was filed. The construction of

al

D-2

new jail was completed after this lawsuit was filed.

However, this lawsuit is not the catalyst that brought

about the construction of the new Wood County jail.

Pursuant to 42 U.S.C. §1988, ‘“‘The Court in its

discretion may allow the prevailing party...a reasonable at-

torneys’ fee as part of the costs.’’ The Court denied all relief

to the Plaintiff class and entered its findings of fact and

conclusions of law on October 23, 1991. The Plaintiff timely

filed objections, which were likewise denied. Based on

those findings of fact and conclusions of law, the Court is

of the opinion that Plaintiffs were not the prevailing party

pursuant to 42 U.S.C. § 1988.

It is therefore, ORDERED that Plaintiffs’ Motion

for Attorney’s Fees is DENIED.

SIGNED this 26th day of February, 1992.

/s/ Robert M. Parker

ROBERT M. PARKER, CHIEF JUDGE

E-1

VERBATIM TEXT OF 42 U.S.C. § 1988

§ 1988. Proceedings in vindication of civil rights; attorney's

fees

(a) The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this Title, and of

Title “CIVIL RIGHTS,” and of Title “CRIMES,”’ for the

protection of all persons in the United States in their civil

rights, and for their vindication, shall be exercised and en-

forced in conformity with the laws of the United States, so

far as such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the object,

or are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law, the com-

mon law, as modified and changed by the constitution and

statutes of the State wherein the court having jurisdiction

of such civil or criminal cause is held, so far as the same is

not inconsistent with the Constitution and laws of the

United States, shall be extended to and govern the said

courts in the trial and disposition of the cause, and, if it is

of a criminal nature, in the infliction of punishment on the

party found guilty.

(b) In any action or proceeding to enforce a provision of sec-

tions 1977, 1977A, 1978, 1979, 1980, and 1981 of the Revis-

ed Statutes [42 USCS §§ 1981-1983, 1985, 1986], title IX of

Public Law 92-318 [20 USCS §§ 1681 et seq.], or title VI of

the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as

part of the costs.

(c) In awarding an attorney’s fee under subsection (b) in

any action or proceeding to enforce a provision of sections

1977 or 1977A of the Revised Statutes [42 USCS §§ 1981

————_———

E-2

or 1981a], the court, in its discretion, may include expert

fees as part of the attorney's fee.

(As amended Nov. 21, 1991, P. L. 102-166, Title I, §§ 103,

113(a), 105 Stat. 1074, 1079.)