Johnson v. Robinson

K.K. HALL, Circuit Judge,

dissenting:

My disagreement with the majority stems from our differing views regarding what the order on appeal actually does. The timetable does not “go well beyond the general requirements of the 1987 Agreement.” Op. at 1045. The defendants concede that “[t]he parties’ expectation was that when the 88 items were corrected, the parties would agree that the institutions were in compliance with the 1987 Agreement’s provision.” Appellant’s brief 9. In “approving” the timetable, the district court did no more than recognize that the specific corrective actions agreed upon by the parties were an adequate response to the agreement reached four years earlier.

I.

In opposing the inmates’ motion below, the defendants contended that the timetable “vastly expanded] the scope of the [1987] Stipulated Agreement.” In neither their pleadings below nor their brief to this court, however, did the defendants explain how their obligations are expanded. The majority, however, gives four examples of this purported expansion. See op. 1046, 1049. A detailed examination of each example refutes this threshold premise of the majority’s opinion.

A.

The majority contrasts the 1987 Agreement’s requirement of “only twenty foot-candles of lighting in living, work, academic, and library areas” with the 1990 timetable’s “require[ment of] the installation of contractor-supplied, tamper-proof, fluorescent light fixtures throughout MHC.” Op. 1045. In the six-column timetable itself, the first column (“DEFICIENCY”) reads: “Correction of the lighting by fluorescent fixtures (this is what we agreed at the meeting).” After years of waiting for “twenty foot-candles of lighting in all living, work, academic, and library” (which is pretty much the same as saying “throughout the prison”), the parties simply specified how this deficiency was to be corrected. The timetable does not require “contractor-supplied tamper-proof” fixtures; column six of the timetable (“Status as of 15 December 1990”) contains the following note: “Installation of Fluorescent fixtures Started by In-house staff. Prototype selected after several test[s] to insure tamper proof enclosures.” The requirement is still to provide adequate lighting. In 1987, the requirement was “20 foot-candles”; some years later, the parties agreed (at least with regard to one prison) to install fluorescent lighting. That a contractor is supplying tamper-proof fixtures merely describes how the defendants have chosen to correct the lighting deficiency.

B.

The second example of the purported “radical expansion” of obligations is the timetable’s provision for “a complete electrical upgrade project at MCI-H, including improvement of the transformer distribution system and installation of a new emergency generator.” Op. 1045. Again, the language of the timetable itself paints a different picture. The related deficiency listed in column one is “[r]epair of overloaded electrical outlets.” This deficiency is clearly within the ambit of the following requirement of the 1987 Agreement (which was subject to immediate correction): “7. The correction of all fire safety deficiencies outlined by the State Fire Marshal. The defendants shall comply with the requirements of the NFPA Code for correctional institutions adopted by the Maryland Department of Public Safety and Correctional Services.” The third column of the timetable (“CORRECTIVE ACTION REQUIRED”) notes that “Phase II of an elec-*1052trieal upgrade project will correct these deficiencies at MCI-H ... Phase I is design, including upgrade of the transformer distribution system and purchase of new emergency generator needed to implement phase II. Phase II is construction of phase I items, ... contingent upon funding approval.” 1 I am unable to see how this imposes any new obligations on the defendants. In 1987, they agreed to immediately correct all fire safety deficiencies, and “overloaded electrical outlets” certainly qualifies as a fire safety deficiency. How the defendants intend to go about correcting this aspect of the overall fire-safety problem does not expand the state’s obligations.

C.

As for plumbing, the 1987 Agreement requires the defendants to “repair all inoperable plumbing.” In the “DEFICIENCY” column in the MHC section of the timetable is the following: “Repair of inoperable plumbing in the main institution.” Under “CORRECTIVE ACTION REQUIRED,” the report reads: “Daily plumbing inspection logs are made. Deficiencies from these logs are required [sic] as soon as possible. This is a continuing process. A plumbing upgrade project to replace supply lines, steam lines, sewer lines and renovate shower areas, will be submitted in the FY 93 capital request.” The “COMPLIANCE SCHEDULE” column reads: “Phase I (Design) contingent upon approval of funding, would be awarded 1/92. Completion would occur 2/93. If Funding is Approved, a Design Award, could be made by 12/91.” Again, the deficiency addressed in the timetable is no broader than the express terms of the 1987 Agreement: repair inoperable plumbing. The timetable merely establishes what plumbing needs to be repaired and how (again, contingent on funding) the defendants hope to remedy the problem.

D.

Finally, the majority contrasts the 1987 Agreement’s specification of minimum air circulation requirements for 5lk months of the year2 with the timetable’s provision that the defendants would seek funding for a $350,000 ventilation system at MCI-H. The precise wording of the deficiency listed in the timetable is as follows: “Development of a system (however to be done) to take care of the air exchange requirements in the main institution [at MCI-H].” As with the planned electrical and plumbing upgrades, the chosen “corrective action” is made “contingent upon funding approval.” The “air exchange requirements” are no doubt those established by the specific terms of the 1987 Agreement. The parenthetical phrase “(however to be done)” suggests that the defendants decided that a $350,000 ventilation project was the way to go to meet the requirements.

II.

The majority’s fears that the timetable would “mandate[ ] a specific schedule within which the repairs must be completed” and that “officials may have to divert funds from other pressing needs in order to comply with the order” are simply overstated. Op. 1049. Under the “CORRECTIVE ACTION REQUIRED” column, the matter of funding takes one of three basic forms: (1) no funding needed, e.g. work to be done by in-house maintenance staff (approximately 45-50 items; see n. 3, infra); (2) funding has been or will be requested (approximately 5-10 items); and (3) funds have been earmarked already in the then-current budget (which was the FY 1992 budget under the December 15, 1991 timetable that was “approved” by the court) (approximately 25-30 items).

According to the appellants, only 14 items remain uncompleted. I assume that *1053these comprise (1) items that are presently incomplete but for which funding is available, and (2) items for which funding has been requested but has not been approved. I do not interpret the timetable to require diversion of funds to the latter group. The timetable includes what needs to be done, how such work is to be accomplished, and where the money to do it is to come from. The “contingent-on-funding” disclaimers were not added unilaterally by the defendants; they are integral parts of the timetable agreement. If funding is requested but not received, I cannot imagine that contempt would lie.

III.

Building from the premise that the timetable vastly expanded the defendants’ duties, the majority characterizes the timetable as “[a] framework for settlement discussions and negotiations” rather than a binding agreement. Op. 1047. As I have explained above, the timetable does not expand the obligations of the 1987 Agreement; it is, rather, “a detailed implementation plan designed to eliminate possible sources of continued non-compliance_” Class v. Norton, 505 F.2d 123, 125 (2d Cir.1973). Once the scope of the timetable is seen in this light, I find it readily apparent that the court’s approval order is primarily a remedial measure aimed at enforcing the earlier 1987 order. There should be no question that the defendants “agreed” to the provisions in the timetable, at least in the sense that they believed that the deficiencies listed needed to be corrected and that the corrective actions listed were the best means available. The question posed by the majority, however, is whether or not the defendants agreed to have this timetable agreement made an order of the court. See op. 1046 (“We see no agreement between the parties that gave the district court authority to enter the order that it did.”) The district court, however, only needed such conferred authority to modify the 1987 Agreement. As it is, the court’s approval order merely enforces what had been in effect for some four years.

IV.

“In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow.... Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.” Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973) (citation and footnote omitted). The court-approved timetable is such a blend.

This case was filed in 1977. Ten years later, the parties agreed on rather broadly worded goals to bring the prison up to constitutional standards. In 1990, after three years of waiting on the “immediate correction” of “all environmental deficiencies,” the inmates decided to press the issue and request that the defendants be held in contempt. The defendants then sat down with the inmates and hammered out an 83-item3 list of deficiencies, specific corrective action, and a schedule for completion. The broad but somewhat amorphous goals of 1987 took on a workable form, and a possible contempt finding was forestalled. Most corrective actions, particularly those requiring large expenditures of state funds, are made contingent on funding approval. Because I do not see how the timetable does anything more than state how and when the defendants intend to meet the obligations that they assumed (by agreement reduced to court order) in 1987, I believe that the timetable does not “modify” the 1987 Agreement.

I would affirm the district court.

. The May 15, 1991, timetable report notes as follows: "Phase I to start 4/91. Completion by 12/91. Phase II design funds approved in FY 92 budget. Phase I construction to start after 1/92.”

. The 1987 Agreement also required that the "defendants shall investigate other methods for increasing the air movement [to certain levels] ... submit a plan to the Court by September 1, 1987.” I am unable to determine from the record whether such a plan was ever submitted.

. Eighty-three items is not as daunting as it sounds. By my count, more than half of the items were to be completed by "in-house maintenance staff,” with no expenditure of funds noted, e.g. cutting and capping all dead electrical wiring in living areas; conduct monthly fire drills with inmate participation. Another 25-30 items had (as early as December, 1990) funds earmarked. Funding appeared to be a problem with fewer than ten items, albeit most of the major ones.