June 27, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1816
NICHOLAS A. PALMIGIANO, ET AL.,
Plaintiffs, Appellees,
v.
BRUCE SUNDLUN, ET AL.,
Defendants, Appellees.
KEITH A. WERNER,
Plaintiff, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Keith A. Werner on brief pro se.
Alvin J. Bronstein, Mark J. Lopez, and National Prison Project of
the American Civil Liberties Union Foundation, on brief for appellees
Nicholas A. Palmigiano, et al.
Jeffrey B. Pine, Attorney General, Maureen G. Glynn, Special
Assistant Attorney General, and Anthony A. Cipriano, Chief Legal
Counsel, Rhode Island Department of Corrections, on brief for
appellees Bruce Sundlun and Rhode Island Department of Corrections.
Per Curiam. In this long-standing class action
involving prison conditions in Rhode Island, plaintiff Keith
Werner (a non-named member of the class) appeals from an
order denying his motion to be excluded from a settlement
agreement recently adopted by the district court. The class
was certified back in 1976 as one under Fed. R. Civ. P.
23(b)(2). As plaintiff himself concedes, there is no
automatic right to opt-out of a Rule 23(b)(2) class. See,
e.g., Ticor Title Ins. Co. v. Brown, 114 S. Ct. 1359, 1361
(1994). Even if the district court had discretion to permit
a class member to opt-out in this context, see, e.g.,
Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994), the
refusal to do so cannot be deemed error in a case, such as
this, where only equitable relief has been sought. See
Palmigiano v. Garrahy, 443 F. Supp. 956, 959 (D.R.I. 1977)
("No damages are sought in this action."). And the concerns
underlying plaintiff's request prove misplaced in any event.
We decline to consider the various constitutional challenges
advanced on appeal to the absence of an opt-out procedure in
Rule 23(b)(2) proceedings, inasmuch as plaintiff failed to
raise them below. For the same reason, we disregard his
argument that the class should have been decertified or
restructured at some point in the past.
Assuming arguendo that plaintiff has standing to raise
the issue, we also reject his perfunctory suggestion that the
district court abused its discretion in adopting the decree.
Having reviewed the agreement in full, we find its provisions
to be "fair, adequate, and reasonable." Durrett v. Housing
Auth. of City of Providence, 896 F.2d 600, 604 (1st Cir.
1990); accord, e.g., Conservation Law Foundation v. Franklin,
989 F.2d 54, 58-59 (1st Cir. 1993). We likewise find the
other criteria enumerated in Durrett to have been fully
satisfied.
The judgment is affirmed. Appellant's motion to
supplement his reply brief is denied.
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