United States Court of Appeals,
Fifth Circuit.
No. 94-40380.
Jihaad A.M.E. SAAHIR, f/k/a Jehad Abdullah Shabazz, Plaintiff-
Appellee,
v.
W.J. ESTELLE, Jr., Director, Texas Department of Criminal
Justice, Institutional Division, et al., Defendants-Appellants.
March 20, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Before KING, GARWOOD and BENAVIDES, Circuit Judges.
PER CURIAM:
Officials of the State of Texas appeal an order enforcing a
settlement agreement previously entered in an action brought under
42 U.S.C. § 1983. Finding that the district court lacked subject
matter jurisdiction because of the operation of the immunity
afforded a State under the Eleventh Amendment of the United States
Constitution, we reverse.
FACTS AND PROCEDURAL HISTORY
Jihaad A.M.E. Saahir ("Saahir"), formerly known as Jehad
Abdullah Shabazz, a/k/a James Loggins, filed a motion for civil
contempt against W.J. Estelle and several others (collectively
"defendants") seeking enforcement of a settlement agreement entered
into between Saahir and the defendants in a civil rights action
previously filed by Saahir. In the previous lawsuit filed under 42
U.S.C. § 1983, Saahir sued W.J. Estelle, then director of the Texas
Department of Corrections ("TDC") (now known as the Texas
1
Department of Criminal Justice) and various other TDC employees,
alleging a violation of his First Amendment right to practice his
religion because the defendants refused to recognize his Islamic
name and refused to allow him to have a cassette-tape player and
religious tapes to learn the Arabic language.
Saahir and the defendants entered into a settlement agreement
in which the defendants agreed to allow Saahir to own, use, and
possess a cassette-tape player and tapes for listening purposes
only. The agreement included the following language: "The
plaintiff shall order the tapes he desires, through the Texas
Department of Corrections' Islamic Chaplain, who will facilitate
and administer the order and delivery of the tapes to plaintiff."
The district court entered a consent decree approving and
incorporating the settlement agreement and dismissed the case. In
the present lawsuit, Saahir filed a motion for civil contempt
against the defendants, alleging that they violated the settlement
agreement by confiscating 39 of his non-religious tapes. He
alleged that the settlement agreement did not purport to limit his
possession of tapes to religious tapes only. The defendants
admitted that 35 non-religious tapes were confiscated. They
asserted that the clear spirit of the settlement agreement was to
allow Saahir to listen to religious tapes. The defendants also
questioned the district court's jurisdiction over Saahir's motion
for contempt, noting that there was no indication that the court
intended to maintain continuing jurisdiction over the lawsuit. The
district court granted Saahir's motion for contempt. The court
2
held that the terms of the settlement agreement were not limited to
religious tapes and that the defendants should return the tapes or
reimburse Saahir. The defendants appeal.
LAW AND ARGUMENT
The defendants argue that the district court lacked subject
matter jurisdiction to order them to conform their conduct to the
settlement agreement because of their Eleventh Amendment immunity.
They cite Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and Lelsz v. Kavanagh, 807
F.2d 1243 (5th Cir.), cert. dismissed, 483 U.S. 1057, 108 S.Ct. 44,
97 L.Ed.2d 821 (1987), as authority for their argument that the
district court did not have jurisdiction to enforce the settlement
agreement beyond the extent required to protect Saahir's
constitutional rights.
The Eleventh Amendment generally provides immunity to a State
against suits in federal court by a citizen of the State against
the State or a state agency or department. Pennhurst, 465 U.S. at
97-99, 104 S.Ct. at 906-07. When only state officials have been
sued, the suit is barred if "the [S]tate is the real, substantial
party in interest." Id. at 101, 104 S.Ct. at 908. The Eleventh
Amendment is an explicit jurisdictional limitation on the judicial
power of the federal courts. Id. at 119-21, 104 S.Ct. at 918-19.
The Supreme Court carved out an exception to Eleventh Amendment
immunity in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.
714 (1908), which held that acts by state officials contrary to
federal law cannot have been authorized by the State and that suits
3
seeking to enjoin such acts are not suits against the State, id. at
160, 28 S.Ct. at 454. Thus, a suit challenging the
constitutionality of a state official's action is not one against
the State and is not barred by the Eleventh Amendment. Pennhurst,
465 U.S. at 102-03, 104 S.Ct. at 909.
In Pennhurst, the Supreme Court held that the federal courts
did not have jurisdiction to order state officials to conform their
conduct to state law. Id. at 124-25, 104 S.Ct. at 921. In Lelsz,
the Fifth Circuit applied Pennhurst, holding that the district
court lacked jurisdiction to enforce a consent decree against the
State to the extent that the relief ordered in the decree was based
on state law. Lelsz, 807 F.2d at 1246-47. We stated that the
court did not have jurisdiction to enforce the consent decree
beyond the guarantees contained in the Constitution because the
only legitimate basis for federal court intervention consistent
with the Eleventh Amendment was the vindication of federal rights.
Id. at 1252.
Here, enforcing the provision that allows Saahir the
non-religious tapes would not require the federal court to enforce
state law against the State, as there is no state law giving
prisoners the right to listen to musical tapes. Thus, Pennhurst 's
central concern of having "a federal court instruct[ ] state
officials on how to conform their conduct to state law," Pennhurst,
465 U.S. at 106, 104 S.Ct. at 911, is not implicated here.
Nonetheless, enforcing the provision would not be required by any
federal or constitutional law, as we fail to discern any First
4
Amendment protections except as to the religious tapes. Because
"the only legitimate basis for federal court intervention,
consistent with the Eleventh Amendment is the vindication of
federal rights," Lelsz, 807 F.2d at 1252, the federal courts have
no jurisdiction to enforce the provision as it relates to the
non-religious tapes. Although the State of Texas has evidently not
legislated on this particular issue, whether a prisoner has a right
to listen to musical tapes is an issue that falls in the area of
state governance and not that of the federal government. "If a
federal court remedy unfounded in federal law intrudes into the
governance of matters otherwise presided over by the states, no
federal right has been vindicated." Id.
Saahir responds by arguing that the consent decree is based
on federal law. Saahir's complaint did not claim to have any basis
in state law, but rested on 42 U.S.C. § 1983. According to Saahir,
the defendants agreed to settle these federal claims against them
by agreeing to allow Saahir any musical tape he desires. Saahir
argues that this is a vindication of a federal right because it has
been given to Saahir in exchange for his dropping of a suit based
on a federal right. In essence, it was one of the factors that led
to the terms of the agreement, and Saahir claims to have
relinquished some of his demands and damages in exchange for this
factor.1
1
A similar argument was adopted in Ibarra v. Texas
Employment Comm'n, 823 F.2d 873 (5th Cir.1987), where we did not
preclude the district court from approving a consent decree in
which Texas state law was interpreted because the plaintiffs
brought suit under 42 U.S.C. § 1983, id. at 877 (we reversed the
5
What the defendants agreed to give as a remedy, however, does
not have any effect on the jurisdictional limits of a federal
court. Although "a federal court is not necessarily barred from
entering a consent decree merely because the decree provides
broader relief than the court could have awarded after a trial,"
Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland,
478 U.S. 501, 525, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986), the
federal court "must fall back on its inherent jurisdiction" when it
"issue[s] its own, different order enforcing ... the decree,"
Lelsz, 807 F.2d at 1252. Further, the possibility that Saahir
relinquished other damages in exchange for the non-religious tapes
is irrelevant. Although federal courts may award an injunction
governing a state official's future conduct, they may not award
retroactive monetary relief. Edelman v. Jordan, 415 U.S. 651, 666-
67, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974).
Next, Saahir contends that the settlement agreement did not
contain any rules or guidelines on what tapes would be considered
religious. Because the settlement agreement did not give the
defendants the authority to determine what tapes were religious,
but instead gave that authority to Saahir, Saahir should be given
reasonable discretion on this issue. Saahir, however, never claims
that these tapes were necessary for his religious beliefs.
approval on other grounds, id. at 879). However, Ibarra is
readily distinguishable. The particular state statute subject to
the decree's interpretation expressly incorporated a federal
statute, and "any change in the [federal] standard is
automatically incorporated into Texas law." Id. Thus, the
ultimate basis of the decree was an interpretation of federal
law.
6
Instead, he rests his appeal on the idea that the defendants have
agreed to allow him his non-religious tapes. Further, just as the
scope of the consent decree does not enlarge the court's
jurisdiction, the way the parties agreed to implement the remedy
contained in the consent decree likewise cannot affect the
jurisdictional bounds of the federal courts.
Finally, Saahir argues that the defendants waived their
Eleventh Amendment immunity when they entered the settlement
agreement. It has been consistently held that a State may consent
to suit against it in federal court. Clark v. Barnard, 108 U.S.
436, 447, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883). According to
Saahir, by entering the consent decree, the defendants consented to
the district court's jurisdiction to rule on this issue. Saahir
states that the defendants never attempted to clarify the language
in the settlement agreement when they knew that Saahir would be
ordering non-religious tapes. Saahir claims that such facts
further bolster the contention that the defendants consented to the
court's jurisdiction. For example, Saahir points to the fact that
a non-religious tape was one of the tapes denied to Saahir which
prompted him to file his original suit. Saahir also states that,
at a hearing before the settlement, the parties discussed who would
"search" the non-religious tapes. Finally, when his first Arabic
tapes were lost by the TDC, a non-religious tape was returned to
Saahir. Saahir concludes by arguing that he had ordered
non-religious tapes for the past eight years without any problems
before now.
7
The State's consent, however, must be unequivocally
expressed. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. Here,
the defendants did not expressly waive their immunity in the
settlement agreement. Nor can we find an express consent in the
proceedings on Saahir's motion. Indeed, the defendants argued that
the settlement agreement did not cover non-religious tapes, which
suggests that the defendants did not unequivocally consent to a
district court ruling with respect to a non-federally protected
right. Although Saahir presents evidence suggesting that the
defendants had knowledge of non-religious tapes being present, he
has not proved that the defendants believed that the consent decree
covered non-religious tapes. Because "[w]aiver of a state's
sovereign immunity, like waiver of any constitutional right, is
strictly construed in favor of the holder of the right," Lelsz, 807
F.2d at 1253, and because "[c]onstructive consent is not a doctrine
commonly associated with the surrender of constitutional rights,
and we see no place for it here," Edelman, 415 U.S. at 673, 94
S.Ct. at 1360, we hold that there has not been a sufficient showing
that the defendants waived their Eleventh Amendment immunity.
CONCLUSION
Because the district court had no jurisdiction to enforce the
instant provision of the consent decree, we REVERSE the district
court's granting of the motion for civil contempt.2
2
Saahir's brief also points to the fact that his Amended
Complaint in the settled lawsuit states a Fourteenth Amendment
claim. Saahir is apparently arguing that his rights to the
non-religious tapes are guaranteed by the Fourteenth Amendment.
In his Amended Complaint, however, Saahir never requests
8
non-religious tapes nor does he claim that the defendants had
confiscated or withheld such tapes.
9