Opposition Brief — Wood County v. Pembroke

——_— =

supreme Court,

om RIUED

¢ MAY 19 1993

No. 92-1744 arric, of THE GLERG

—SSss—

In The

Supreme Court of the United States

October Term, 1992

*

WOOD COUNTY, TEXAS, SHERIFF FRANK WHITE, and

DEPUTY JAMES ROBERTS,

Petitioners,

LARRY PEMBROKE, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

©

RESPONDENTS’ BRIEF IN OPPOSITION

*

TimotHy B. GARRIGAN

P.O. Box 631902

Nacogdoches, Texas 75963-1902

(409) 560-6020

State Bar No. 07703600

Counsel of Record

Curtis B. STUCKEY

P.O. Box 631902

Nacogdoches, Texas 75963-1902

(409) 560-6020

State Bar No. 19437300

: Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO,, = 225-5964

OR CALL COLLECT (402) 342-283

\u

QUESTION PRESENTED

Whether the plaintiff class of prisoners’ success in

causing defendants to institute a total reform of the

Wood County jail, in the absence of other formal

relief, entitles the plaintiff class to prevailing party

status for purposes of awarding costs and attorney

fees pursuant to 42 U.S.C. § 1988?

oO OND

ii

LIST OF PARTIES

Wood County, Texas, Petitioner

Sheriff Frank White, Petitioner

Deputy James Roberts, Petitioner

Larry Pembroke on behalf of a class of all persons

incarcerated in the Wood County jail from December

20, 1985, Respondents

Timothy B. Garrigan, Counsel for Respondents

Curtis B. Stuckey, Counsel for Respondents

Charles Clark, Counsel for Petitioners

Rick Faulkner, Counsel for Petitioners

John Alexander, Counsel for Petitioners

TABLE OF CONTENTS

Page

OO 0 ol i

I ii

8 | iv

I oy 55d 5 sss divas eaceseeesnees 1

UeNeM GP POE CASE... cece eee 2

Er 6

REASONS FOR DENYING THE WRIT............. 6

I. CONSIDERATIONS GOVERNING REVIEW ON

CERTIORARI DO NOT INCLUDE THIS CASE .. 6

il. THE ISSUE WAS CORRECTLY DECIDED BY

THE FIFTH CIRCUIT, CONSISTENT WITH

ourmemes COURT PRECEDENT.............. 7

edt. yh sc uv i esa cs eves vanses 11

iV

TABLE OF AUTHORITIES

Page

CASES

Associated Builders & Contractors of Louisiana, Inc. v.

Orleans Parish School Board, 919 F.2d 374 (5th

CA TOE kos naa oes cre nechuye see ten yeas unen 6, 7,9

Estate of Farrar v. Hobby, __ U.S. __, 113 S.Ct. 566

(RPED uk che vid Che ks ous uted eee Uke eae ee eee 9, 10

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

eg Ss ee weer ee rer re eT err rrr ere 8

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

OFT a ee eer ee eer err re Tr eT ree 8

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) ...... 7

Pembroke v. Wood County, Texas, 981 F.2d 225 (5th

ee Per ree er te ree ee passim

Quern v. Mandley, 436 U.S. 725, 98 S.Ct. 2068, 56

Le: Se NP os os soo ceed che haere ens anatn 43 5

Texas State Teachers Association v. Garland Indepen-

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

SRS Coe HW CEP bance sa cansvaunsbehuesceenas 9

CONSTITUTIONAL AND STATUTORY PROVISIONS

ee Fay eee Prey es Ome er ae hye 2

Mk ae | Res Pree re ery rt rr 6, 7, 8

i a Se IE Be kos occas ceetnlakencsyeneiuees 2

Re I Oo on ask wang ko¥atuvaneeues 2

Ay. eres MEE WON sas ces os cc aks saan e sewn es 2

Ls. aes Ee eee ee ect eee ee eas 2

No. 92-1744

°

In The

Supreme Court of the United States

October Term, 1992

+

WOOD COUNTY, TEXAS, SHERIFF FRANK WHITE, and

DEPUTY JAMES ROBERTS,

Petitioners,

LARRY PEMBROKE, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

*

OPINIONS BELOW

Petitioners appeal from the judgment and unanimous

opinion of the United States Court of Appeals for the

Fifth Circuit reported at Pembroke v. Wood County, Texas,

981 F.2d 225 (5th Cir. 1993), a copy of which appears in

the petitioners’ Appendix A. The trial court, the United

States District Court for the Eastern District of Texas,

Hon. Robert Parker, Chief Judge, presiding, did not issue

a published opinion. The district court did enter Findings

of Fact and Conclusions of Law and an Order denying

1

respondents prevailing party status, which are included

in petitioners’ Appendices B and C, respectively.

+

STATEMENT OF THE CASE

On December 20, 1985, plaintiffs, Dennis McKeever

and Trent Commander, prisoners in the Wood County jail,

brought this action on their own behalf and on behalf of a

class of all persons held prisoner in the Wood County jail

at that time or since. Plaintiff prisoners sought to improve

conditions in the Wood County jail, as well as damages in

their individual capacities.

Proceeding under 42 U.S.C. § 1983, plaintiffs asserted

that jail conditions and treatment of prisoners violated

rights guaranteed by the First, Fourth, Eighth and Four-

teenth Amendments to the United States Constitution.

On August 20, 1986, the district court certified the

plaintiff class. Thereafter discovery was cut off on March

30, 1987 and trial commenced eleven months later on

February 22, 1988. Plaintiff Commander’s individual

claims were dismissed due to his non-appearance. Plain-

tiff McKeever’s damage claim was tried to a jury while

claims for classwide relief were tried to the district court.

Notwithstanding overwhelming evidence of

egregious conditions of confinement and subconstitu-

tional treatment of prisoners in the Wood County jail, the

defendants steadfastly denied that their conduct was in

violation of constitutional standards. Evidence at trial

convinced the district court that class members were

occasionally subjected to overcrowding; classification of

prisoners was inadequate, including that pretrial

detainees were not segregated from convicted felons;

reading materials were restricted to one Bible; class mem-

bers were denied access to a law library for seven

months; and a class representative had been placed in

punitive isolation without due process protections. See

Findings of Fact and Conclusions of Law, Findings of Fact

Nos. 10, 11, 12, 16 and 17, petitioners’ Appendix B.

Other evidence at trial, not mentioned by the district

court but recognized by the Fifth Circuit, indicated

The facility was in a general state of disarray.

Administration of the facility had been dele-

gated to untrained staff members; repeated state

standards violations were never recorded or

addressed; medical attention was erratic; and

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 pun-

ishment.

Pembroke v. Wood County, Texas, 981 F. 2d at 227. The Fifth

Circuit alsc recognized that the district court understated

the petitioners’ classification and disciplinary infirmities;

the petitioners commonly used punitive isolation without

due process protections on other class members, and

there was absolutely no classification system in effect.

Ibid. 981 F.2d at 229.

At trial the defendants and their witnesses attempted

to deny any constitutional infirmities, even in the face of

jail records and their own deposition testimony to the

contrary.

Evidence did demonstrate the defendants imple-

mented many corrections and improvements after this

litigation commenced: lighting systems were repaired;

plumbing problems were corrected; dental care was

expanded to include fillings, not just extractions; medica-

tions were secured away from trustees; general reading

material was permitted; visitation hours and facilities

were expanded; additional telephone equipment was

installed for use by class members; and prisoners were

permitted to use the law library. The defendants pre-

sented largely unscrutinized evidence of an overhaul of

jail procedures which took place after the discovery cut-

off in the months prior to trial.

At the conclusion of evidence, the district court

announced, for the benefit of appellate courts, that “rea-

sonable minds could not differ but under the facts of this

case the facts constituted a violation of minimum consti-_

tutional standards,” specifically mentioning three discrete

constitutional violations: denial of access to a law library;

inadequate classification; and punitive isolation without

due process. (Trial transcript at p. 658) Plaintiffs’ motion

for a directed verdict regarding plaintiff McKeever’s

damage claim was denied at trial, despite the trial court’s

announcement of these three discrete constitutional viola-

tions.

The jury returned a verdict for the defendants on

plaintiff McKeever’s damage claim. Plaintiffs’ motion for

judgment notwithstanding the verdict was denied (again

despite the trial court’s announcement of three discrete

constitutional violations). Plaintiff McKeever’s death pre-

cluded appeal of the district court’s denial of motions for

a directed verdict and for judgment notwithstanding the

verdict. Pembroke was substituted as class representa-

tive.

Initially, the district court entered judgment for the

defendants on all claims, including the class’ equitable

claims, without entry of Findings of Fact or Conclusions

of Law. On appeal, the Fifth Circuit vacated the judgment

and remanded for entry of Findings of Fact and Conclu-

sions of Law in an unpublished decision dated July 5,

1989.

On remand the district court entered Findings of Fact

and Conclusions of Law and Final Judgment, consistent

with its initial Judgment, dismissing all of the plaintiff

class’ claims and decertifying the class. The trial court

denied a motion for costs and attorneys’ fees because the

petitioners had begun planning a new jail prior to this

lawsuit. However, the court did not consider the

improvements at the Wood County jail still being used at

the time of trial. The plaintiff class appealed the Final

Judgment and the Findings of Fact and Conclusions of

Law as well as the Order denying costs and attorneys’

fees. The appeals of these issues were consolidated as

docket number 92-4079 by the Fifth Circuit.

The Fifth Circuit, utilizing the clearly erroneous stan-

dard, upheld the district court’s exercise of discretion to

deny formal relief on the basis of mootness.! However,

the Fifth Circuit did find the district court’s denial of

1 Both the district court and the Fifth Circuit agreed that

even declaratory relief could be denied, despite the Supreme

Court’s instructions to the contrary in Quern v. Mandley, 436 U.S.

725, 98 S.Ct. 2068, 2074 n.7, 56 L.Ed.2d 658 (1978).

prevailing party status and therefore denial of costs and

attorneys’ fees to be clearly erroneous:

Although we give great deference to the district

court’s factual findings, we are left with the

definite and firm conviction that a mistake has

been committed.

Pembroke, 981 F.2d at 230. More specifically, the Fifth

Circuit recognized that by the time of the February, 1988

trial “most if not ail of the complained of conditions had

been remedied,” noting the appearance of a new jail

administrator and total reform of the facility in 1987

during the months before trial. Ibid. at 227. Most impor-

tantly, the Fifth Circuit stated, “The record supports the

inescapable conclusion that these improvements were

caused by the plaintiffs filing suit.” [bid. at 230. Applying

the Fifth Circuit’s “catalyst” test for determining prevail-

ing party status, as recently stated in Associated Builders &

Contractors of Louisiana, Inc. v. Orleans Parish School Board,

919 F.2d 374, 378 (5th Cir. 1990), the Fifth Circuit con-

cluded the plaintiff class accomplished the goal of this

litigation, improving conditions of confinement at the

Wood County jail and are, therefore, entitled to prevail-

ing party status under 42 U.S.C. § 1988.

e

ARGUMENT

REASONS FOR DENYING THE WRIT

I. CONSIDERATIONS GOVERNING REVIEW ON

CERTIORARI DO NOT INCLUDE THIS CASE.

This case simply does not fit within any of the con-

siderations governing review on certiorari described in

Rule 17, Rules of the Supreme Court of the United States.

Petitioners concede the question presented has been

decided in the affirmative by the courts of appeals. Peti-

tion at p. 7. There is no relevant conflict in the courts

below. There has been no departure from the usual course

of judicial proceedings. As demonstrated below, there is

no important question of federal law which has not been

settled by the Supreme Court.

Il. THE ISSUE WAS CORRECTLY DECIDED BY THE

FIFTH CIRCUIT, CONSISTENT WITH SUPREME

COURT PRECEDENT.

The Fifth Circuit determined, and petitioners do not

contest, that the purpose of respondents’ lawsuit was the

improvement of the conditions of confinement for mem-

bers of the plaintiff class, and that that goal was accom-

plished as a result of this lawsuit. Pembroke, 981 F.2d at

230. Under settled law, as recently stated by the Fifth

Circuit in Associated Builders, 919 F.2d 374, the court of

appeals below conferred prevailing party status on the

respondents, in the absence of formal relief, for purposes

of awarding costs and attorneys’ fees pursuant to 42

U.S.C. § 1988. As petitioners concede, beginning with the

First Circuit in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.

1978), the courts of appeals which have considered the

issue have developed similar and consistent “catalyst”

tests for conferring prevailing party status on civil rights

plaintiffs in the absence of formal relief. Petition at p. 8.

Petitioners’ implications to the contrary notwith-

standing, the Supreme Court has visited this issue and

approved of awarding attorneys’ fees in the absence of

formal judicially mandated relief. The Supreme Court

noted in Maher v. Gagne:

Nothing in the language of § 1988 conditions the

District Court’s power to award fees on. ..a

judicial determination that the plaintiff’s rights

have been violated. Moreover the Senate Report

expressly stated that “for purposes of the award

of counsel fees, parties may be considered to

have prevailed when they vindicate rights

. without formally obtaining relief.

448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653

(1980) (emphasis added) (citations omitted).

Even more to the point, the Supreme Court more

recently stated:

It is settled law, of course, that relief need not be

judicially decreed in order to justify a fee award

under § 1988. A lawsuit sometimes produces

voluntary action by the defendant that affords

the plaintiff all or some of the relief he sought

through a judgment - e.g. . . . a change in

conduct that redresses the grievances. When

that occurs, the plaintiff is deemed to have pre-

vailed despite the absence of a formal judgment

in his favor.

[I]f the defendant, under pressure of the law-

suit, alters his conduct (or threatened conduct)

towards the plaintiff that was the basis for the

suit, the plaintiff will have prevailed. That is the

proper equivalent of a judicial judgment .

Hewitt v. Helms, 482 U.S. 755, 760-761, 107 S. Ct. 2672,

2676, 96 L.Ed.2d 654 (1987) (emphasis in original). It is

hard to imagine how the Supreme Court could have more

a

clearly guided the Fifth Circuit to its conclusion that the

plaintiff class is a prevailing party in this case.

Petitioners refer to language from Texas State Teachers

Association v. Garland Independent School District, 489 U.S.

782, 791, 109 S. Ct. 1486, 1493, 103 L.Ed.2d 866 (1989), as

establishing a minimum threshold a plaintiff must reach

in order to be considered a prevailing party:

The plaintiff must be able to point to a resolu-

tion of the dispute which changes the legal rela-

tionship between itself and the defendant.

Ibid. However, petitioners are relying on an overly restric-

tive use of the term “legal relationship” when they urge

that respondents have not reached this threshold. As the

Fifth Circuit has recognized and petitioners do not dis-

pute, petitioners resolved their dispute with the plaintiff

class by changing their conduct, in many instances to

comply with well settled constitutional standards, thus

mooting the class’ claims. Pembroke, 981 F.2d at 228-229. It

is certainly difficult to imagine a more dramatic or signif-

icant change in a legal relationship than citizens bringing

errant governmental officials into compliance with funda-

mental constitutional standards as is undisputedly the

case here.

Finally, petitioners argue Estate of Farrar v. Hobby, __

U.S. __, 113 S.Ct. 566, 574 (1992), is inconsistent with the

rationale of the Fifth Circuit’s Associated Builders opinion

and apparently the rationale of all of the other courts of

appeals which have adopted “catalyst” tests for deter-

mining prevailing party status. Petitioners are clearly

attempting to apply Farrar out of context.

10

As petitioners recognize, the Fifth Circuit in Pembroke

explicitly distinguishes Farrar:

Farrar dealt with prevailing party status and the

award of attorney’s fees in the context of nomi-

nal damages and is thus distinguishable from

the present case.

.. . Unlike Farrar, changes in the legal relation-

ship between the plaintiffs and defendants in

this case were wrought by the bringing of the

litigation itself, not with recovery of monetary

damages.

Petition at p. 12, referring to Pembroke, 981 F.2d at 231,

note 27.

In Farrar the Court held that any formal relief, even if

de minimus, was sufficient to confer prevailing party sta-

tus. Farrar, 113 S.Ct. at 574. However, Farrar does not

consider whether a plaintiff obtaining substantial relief in

the absence of formal relief should be denied prevailing

party status. Petitioners’ reliance on Farrar is therefore

misplaced. The Fifth Circuit’s opinion below in Pembroke

is consistent with Farrar.

11

CONCLUSION

For the reasons stated above, the petition for cer-

tiorari should be denied.

May 19, 1993

Respectfully submitted,

TimoTtHy B. GARRIGAN

P.O. Box 631902

Nacogdoches, Texas 75963-1902

(409) 560-6020

State Bar No. 07703600

Counsel of Record

Curtis B. STUCKEY

P.O. Box 631902

Nacogdoches, Texas 75963-1902

(409) 560-6020

State Bar No. 19437300

Counsel for Respondents