Battle v. Anderson

McKAY, Circuit Judge, with whom WILLIAM E. DOYLE, Circuit Judge,

joins:

We concur in parts I and II of Judge Barrett’s opinion. We write separately to state our disagreement with his resolution of an issue encountered in part III, the question of the district court’s continuing authority to prevent a recurrence of the shocking, inhumane, and unconstitutional conditions that previously prevailed in the Oklahoma prisons.1

I

In recent years, state indifference and inaction has forced the federal courts to intervene in the operation of state prison systems and engage in broad scale reform *1537to remedy unconstitutional conditions. See Rhodes v. Chapman, 452 U.S. 337, 353-61, 101 S.Ct. 2392, 2402-2407, 69 L.Ed.2d 59 (1981) (Brennan, J., concurring) (describing attempts by the federal courts to correct eighth amendment violations). See generally, Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv.L. Rev. 626 (1981). In some cases, the courts have perhaps overstepped their authority and given insufficient credit to the state’s sensitivity to constitutional values. See Rhodes, 452 U.S. at 352, 101 S.Ct. at 2402; cf. Hewitt v. Helms,-U.S.-,-, 103 S.Ct. 864, 867-868, 74 L.Ed.2d 675 (1983) (prison officials accorded great deference in prison management). In other cases, blatant state disregard for constitutional rights has forced even cautious and reluctant courts to intervene. Rhodes, 452 U.S. at 354, 101 S.Ct. at 2403 (Brennan, J., concurring); see, e.g, Pugh v. Locke, 406 F.Supp. 318, 328 (M.D.Ala.1976), aff’d as modified sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev’d in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam).

All the members of this panel agree that past conditions in the Oklahoma prisons constituted a systemic violation by Oklahoma of the eighth amendment proscription against cruel and unusual punishment. Indeed, Judge Barrett explicitly recognizes “ ‘the neglect, apathy and deliberate disregard for human decency and rights’ ” that pervaded the Oklahoma prisons in the past. Ante at 1525 (quoting Battle v. Anderson, 564 F.2d 388, 393 (10th Cir.1977)). Likewise, the members of this panel, as well as the district court, all agree that Oklahoma has made significant progress in ameliorating the disgraceful prison conditions of the past. In this regard, Judge Barrett finds that the State of Oklahoma has eliminated these conditions and has provided facilities that are “so modern, so spacious and so extensive as to be not only fit but most comfortable for prisoners.” Ante at 1532. While we do not commend the present facilities so strongly, we nevertheless agree that present conditions, as described by the district court, appear constitutionally adequate under the standards set forth in Rhodes.

We diverge from Judge Barrett, however, on the question of the district court’s continuing jurisdiction over the Oklahoma prison system. Finding no present constitutional violation, he believes that the district court should terminate its jurisdiction. In contrast, we believe that a court should exercise supervisory power over the suit until it can say with assurance not only that eighth amendment violations do not presently exist but that there is no reasonable expectation that unconstitutional conditions will recur.

II

In reaching our conclusion, we note at the outset the special character of this litigation. ' This suit is not intended to resolve some narrow, discrete dispute between Messrs. Anderson and Battle; instead, it involves an intervention in the operation of a state institution to eliminate unconstitutional practices, an intervention that commentators have described as “structural reform.” Fiss, Forward: The Forms of Justice, 93 Harv.L.Rev. 1 (1979); see, Resnik, Managerial Judges, 96 Harv.L.Rev. 376 (1982); Chayes, Forward: Public Law Litigation and the Burger Court, 96 Harv.L. Rev. 4 (1982). As Professor Fiss has perceptively stated,

the focus of structural reform is not upon particular incidents or transactions, but rather upon the conditions of social life and the role that large-scale organizations play in determining those conditions. What is critical is not the black child turned away at the door of the white school, or the individual act of police brutality. These incidents may have triggered the lawsuit. They may also be of evidentiary significance: evidence of a “pattern or practice” of racism or lawlessness. But the ultimate subject matter of the lawsuit or focus of the judicial inquiry is not these incidents, these particularized and discrete events, but rather a social condition that threatens important constitutional values and the organi*1538zational dynamic that creates and perpetuates that condition.

Fiss, 93 Harv.L.Rev. at 18 (footnote omitted).

In such cases the courts intervene, not simply to prevent isolated instances of misconduct, but rather to remove a threat to constitutional values posed by the manner of operation of the institution. Fiss, 93 Harv.L.Rev. at 22-23; see Estelle v. Gamble, 429 U.S. 97, 116-17 n. 13, 97 S.Ct. 285, 297 n. 13, 50 L.Ed.2d 251 (1976) (Stevens, J., dissenting). Accordingly, the court’s remedies must be designed to achieve lasting institutional change. Fiss, 93 Harv.L.Rev. at 28.2 The court’s remedies typically take the form of prospective injunctions supported by continuing oversight to assure compliance. As Professor Fiss has noted, the remedial phase often extends well into the future, requiring the court to exercise continuing jurisdiction:

It involves a long, continuous relationship between the judge and the institution; it is concerned not with the enforcement of a remedy already given, but with the giving or shaping of the remedy itself. The task is not to declare who is right or who is wrong, not to calculate the amount of damages or to formulate a decree designed to stop some discrete act. The task is to remove the condition that threatens the constitutional values.... [T]he remedy involves the court in nothing less than the reorganization of an ongoing institution, so as to remove the threat it poses to constitutional values. The court’s jurisdiction will last as long as the threat persists.

Fiss, 93 Harv.L.Rev. at 27-28; see Special Project, 78 Colum.L.Rev. at 816-17, 842-44.

We believe that the court, in exercising continuing jurisdiction to achieve structural reform, cannot terminate its jurisdiction until it has eliminated the constitutional violation “root and branch.” See Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).3 The court must exercise supervisory power over the matter until it can say with assurance that the unconstitutional practices have been discontinued and that there is no reasonable expectation that unconstitutional practices will recur.

The concept that a court’s jurisdiction extends beyond the termination of the wrongdoing is not a novel idea; rather, it is based on traditional notions of the courts’ equitable powers.4 Moreover, a court’s re*1539tention of jurisdiction beyond the point of compliance with its injunctions is not a novel practice. In past prison cases, courts have retained jurisdiction beyond the terms of the injunction “to make it reasonably certain that the changes of methods and practices will not be abandoned, forgotten, or neglected, but have become permanently established.” Jones v. Wittenberg, 330 F.Supp. 707, 721 (N.D. Ohio 1971), aff’d sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir.1972); see Taylor v. Perini, 413 F.Supp. 189, 197 (N.D. Ohio 1976); see also, Special Project, 78 Colum.L.Rev. at 842-43 (“The permanent achievement of remedial objectives, rather than full implementation of the changes ordered in the decree, therefore, appears to be the outermost limit of judicial intervention.”) (footnote omitted).

Future prison conditions are an outgrowth of present attitudes. The factual findings of the district court suggest that present attitudes in Oklahoma may well contain seeds from the past. The court found that past unconstitutional conditions threatened to recur, stating,

while the Court would not conclude from the evidence presented that the system has become unconstitutional in its operation, the system is clearly in the state of rapid decline. The system has slipped into the twilight of constitutional compliance and could well slip into its previous unconstitutional condition.

Battle v. Anderson, No. 72-95-CIV, mem. op. at 3-4 (E.D.Okla. Oct. 12, 1982). The record provides strong support for the district court’s factual finding of a rapid decline in prison conditions. In a hearing preceding the court’s decision, the court-appointed fact finder testified that the prisons were overcrowded, understaffed, and posed significant fire, safety, sanitation, and health hazards. He also noted serious deficiencies in the exercise, work, food, and recreation programs as well as self-mutilations and suicides. Indeed, he testified that in his opinion the prison system had already crossed the threshold of unconstitutional conditions, given the totality of the circumstances.

In light of its fully supported factual findings, the district court correctly chose to exercise continuing jurisdiction in this controversy. Present compliance is insufficient to bring an end to this litigation if the compliance is simply a transient excursion above the constitutional threshold. The district court has not only the authority but an obligation to prevent a regression of the Oklahoma prison system to the unconstitutional conditions of the past. When a prison system deteriorates to the point that a federal district court must step in to rectify unconstitutional conditions, the court should retain jurisdiction until it is satisfied that the unconstitutional conditions will not recur.

Ill

While we conclude that the district court retains jurisdiction over the Oklahoma prison system, we also recognize limits to the scope of this jurisdiction. These limits are defined by the purpose of the continuing jurisdiction — to assure that the court’s intervention has achieved lasting institutional reform. Accordingly, the court may exercise continuing jurisdiction over the Oklahoma prison system to the extent necessary to assure that eighth amendment violations will not recur.

The exercise of this jurisdiction must be entrusted to the discretion of the district court. Indeed, it “is the only court equipped to test evidentiary compliance and the only forum in which to raise any allegations of continuing deficiencies.” Finney v. *1540Arkansas Board of Correction, 505 F.2d 194, 215 (8th Cir.1974). Absent a conclusion that the district court has made clearly erroneous factual findings or has abused its discretion, we have no authority to overturn its determination of the need for continuing jurisdiction. In this case the district court has amply demonstrated the need for continuing jurisdiction. Furthermore, the district court has demonstrated a clear understanding of the scope of its supervisory powers. The court stated as follows:

The court has been careful to use the term indefinite relief due to the recognition that the standard applicable to this case is that characterized by the “totality of circumstances.” While Rhodes stands for the proposition that populations in excess of the rated capacity cannot be declared per se unconstitutional; neither can any set ratio be declared absolutely constitutional. Thus, the determination of constitutional conditions must inherently involve a continuing review of population figures, as one of the multiple relevant factors. The court must stand ready to act should any factor causally swing the balance of the totality of the circumstances past the line separating constitutional from unconstitutional conditions.

Battle v. Anderson, No. 72-95-CIV, mem. op. at 3 (Oct. 12, 1982) (footnotes omitted). The court’s order, made pursuant to its exercise of continuing jurisdiction, provides in pertinent part that

the defendants shall file with the Clerk of the Court an official statement of penal policy and detailed plan of action describing measures that will be used to avoid the return of the Oklahoma prison system to unconstitutional conditions and date of compliance with the agreed to stipulations of January 22, 1981.

Id. at 8. The court order is limited in scope and is targeted to assure compliance with past decrees and to prevent a recurrence of unconstitutional conditions.5 Accordingly, it should be affirmed in full.6

. In a past episode of this case, the district court determined that conditions in the Oklahoma prison system violated the eighth amendment’s proscription of cruel and unusual punishment. See Battle v. Anderson, 376 F.Supp. 402 (E.D.Okl. 1974). Since that time, the district court has engaged in a continuing struggle to remedy the constitutional violations. See Battle v. Anderson, 447 F.Supp. 516 (E.D.Okl.), aff’d, 564 F.2d 388 (10th Cir.1977); Battle v. Anderson, 457 F.Supp. 719 (E.D.Okl. 1978), remanded for further hearings, 594 F.2d 786 (10th Cir.1979).

. See generally, Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976); Special Project, The Remedial Process in Institutional Reform Litigation, 78 Colum.L. Rev. 784 (1978); Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv.L. Rev. 626 (1981); Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428 (1977); Note, The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change, 84 Yale L.J. 1338 (1975).

. In Green, a classic example of structural reform of segregated schools, the Court stated that “the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.” 391 U.S. at 439, 88 S.Ct. at 1695; accord, Raney v. Board of Educ., 391 U.S. 443, 449, 88 S.Ct. 1697, 1700, 20 L.Ed.2d 727 (1968); see also Brown v. Board of Educ., 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1954) (district court to retain jurisdiction during “period of transition” to desegregate schools).

. It has long been settled that the court’s power to grant injunctive relief survives discontinuance of the illegal conduct. E.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1952). In this regard, the Supreme Court has noted that “[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Oregon State Medical Soc’y, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952). More recently, the Court has pointed out that “abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982) (footnote omitted; emphasis added).

These principles apply with equal force once a court has intervened and provided prospective injunctive relief. If an injunction is to be effective, a court must retain continuing jurisdiction to enforce and modify the terms of its *1539orders. See Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573-2574, 57 L.Ed.2d 522 (1978); System Fed’n No. 91 Ry. Employes’ Dep’t v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961); United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). See generally, O. Fiss, The Civil Rights Injunction (1978). The court cannot be divested of jurisdiction by temporary compliance with the injunction. As in the case of pretrial abandonment, see County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979), a court must retain jurisdiction until it can say with assurance that there is no reasonable expectation that the unlawful activity will recur.

. The stipulations of January 22, 1981, with which the order requires eventual compliance, include provisions for single-celling and specific space requirements. As the district court recognizes, these provisions may be adjusted in the future in light of the totality of the circumstances without compromising constitutional standards. See Rhodes, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59. Given the state of de-dining prison conditions, the court acted properly in retaining, for the present, the obligation of eventual compliance.

. We commend Judge Bohanon for the skill and fortitude exercised over the past ten years in administering this difficult and demanding case.