Laaman v. Warden, New Hampshire State Prison

United States Court of Appeals
For the First Circuit

No. 00-1052

JAAN LAAMAN, ET AL.,

Plaintiffs, Appellants,

v.

WARDEN, NEW HAMPSHIRE STATE PRISON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Elliott Berry with whom Alan Linder, and New Hampshire Legal
Assistance, were on brief, for appellants.
Daniel J. Mullen, Senior Assistant Attorney General, with whom
Philip T. McLaughlin, Attorney General, was on brief, for appellees.

January 17, 2001
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 TORRUELLA, Chief Judge. A 1975 civil rights suit by inmates

in New Hampshire State Prison ultimately resulted in a consent decree,

which was amended in 1990. In response to a 1993 suit alleging

contempt of that decree, and pursuant to the Prison Litigation Reform

Act of 1995 (the "PLRA"), 18 U.S.C. § 3626, prison officials

successfully moved to terminate the decree. The principal issue on

appeal is when, if ever, must the district court afford inmates who

allege "current and ongoing" violations of federal rights the

opportunity to supplement the existing record.

BACKGROUND

This proceeding has a complex procedural history, which we

summarize for the purpose of this appeal.

In 1975, inmates at the New Hampshire State Prison in Concord

(the "Prison") filed individual civil rights actions (later

consolidated into a class action) against state officials in federal

district court pursuant to 42 U.S.C. § 1983. Laaman v. Helgemoe, 437

F. Supp. 269, 275 (D.N.H. 1977). In an extensive opinion, the court

made "specific findings" that prison conditions violated inmates'

Eighth Amendment rights, id. at 323-25, and issued a sixteen-part order

specifying required relief, id. at 325-30. The order was implemented

in a consent decree approved by the court on August 10, 1978, which was

later amended by a second consent decree approved on May 22, 1990.

Judge Devine, who had inherited the case from then-District Judge

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Bownes, approved the second decree. The amended decree provided that

the district court would "retain jurisdiction . . . for the purpose of

assuring compliance" until July 1, 1993.

Two weeks prior to the expiration of the district court's

jurisdiction, the inmates filed a civil contempt motion alleging that

prison officials had failed to comply with the decree. Although the

district court determined the necessary level of compliance to avoid a

finding of contempt and held an evidentiary hearing in December of

1995, no order issued. Upon Judge Devine's death in February of 1999,

the case was reassigned to Judge Barbadoro, with the motion for

contempt still pending. Mindful that the PLRA had "significantly

changed the rules governing consent decrees addressing prison

conditions,"1 Judge Barbadoro ordered the plaintiffs to "explain[] why

the Consent Decree should not be terminated and the pending Motion for

Contempt be deemed moot." Laaman v. Powell, Civil Nos. 75-258-SD/B,

77-256-SD/B, 87-301-SD/B (D.N.H. April 20, 1999) [hereinafter Laaman,

April 20 Order]. The district court then terminated the decree in a

June 15, 1999 order, holding that "[t]he findings called for in

1 The PLRA, in part, sought "to oust the federal judiciary from day-to-
day prison management" and serve as a "last rite" for many consent
decrees. Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655
(1st Cir. 1997) (citing 141 Cong. Rec. 14,419 (1995)). This "ambient
intent" provides the basis for the general unfriendliness of the PLRA
toward existing consent decrees, the termination of which this Court
has held to be constitutional and provided for by statute. Id. at 655-
61.

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§ 3626(b)(2) were never made," and that "plaintiffs have failed to

demonstrate that a basis currently exists for finding that the decree

'extends no further than necessary to correct the violation of the

Federal right,' or that the decree is 'narrowly drawn and the least

intrusive means to correct' any alleged violations of the plaintiffs'

federal rights." Laaman v. Powell, Civil No. 75-258-B (D.N.H. June 15,

1999) [hereinafter Laaman, June 15 Order]. Plaintiffs, noting that

§ 3626(b)(3) limits termination in certain cases of "current and

ongoing" violations of federal rights, and claiming that the delay in

disposition had prejudiced them unfairly, appealed to this Court.

DISCUSSION

First, appellants argue that the PLRA, specifically

§ 3626(b)(3), requires that a district court allow plaintiffs an

opportunity to present evidence prior to exercising its termination

power under § 3626(b)(2), and that they were denied this opportunity.

Second, in the absence of such a statutory mandate, they suggest that

the district court abused its discretion here by failing to provide

plaintiffs an opportunity to supplement the existing record. Third,

two remaining issues not directly considered by the parties - the

district court's actual rationale and the scope of further proceedings

- require attention.

A

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 Whether the PLRA requires that inmates be given an

opportunity to supplement the existing record is purely a question of

statutory interpretation, and as such, we afford it de novo review.

Rouse, 129 F.3d at 653-54. We begin with the language of the statute

itself. Stowell v. Ives, 976 F.2d 65, 69 (1st Cir. 1992). In so

doing, we assume that the words of the statute comport with their

ordinary meaning, and that their ordinary meaning accurately expresses

legislative intent, FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990), only

resorting to legislative history or other aids of statutory

construction in the case of ambiguity or an unreasonable result, United

States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.

1987).

The PLRA does not specifically provide for an evidentiary

hearing prior to termination of a consent decree. Cagle v. Hutto, 177

F.3d 253, 258 (4th Cir. 1999), cert. denied, 120 S. Ct. 2723 (2000).

18 U.S.C. § 3626(b)(2) provides for the "immediate termination of

prospective relief if the relief was approved or granted in the absence

of a finding by the court that the relief is narrowly drawn, extends no

further than necessary to correct the violation of the Federal right,

and is the least intrusive means necessary to correct the violation of

the Federal right."2 However, § 3626(b)(3) expressly limits the court's

2 Given the extensive nature of the consent decree here and the fact
that it long pre-dated the enactment of the PLRA, neither side contends
that this consent decree meets the (b)(2) requirements. Cf. Rouse, 129

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termination power, noting that "[p]rospective relief shall not

terminate if the court makes written findings based on the record that

prospective relief remains necessary to correct a current and ongoing

violation of the Federal right, extends no further than necessary to

correct the violation of the Federal right, and that the prospective

relief is narrowly drawn and the least intrusive means to correct the

violation" (emphasis added). Several courts have read these two

sections together as creating a gap that might be filled by an

evidentiary hearing. See Benjamin v. Jacobsen, 172 F.3d 144, 165-66

(2d Cir.), cert. denied sub nom. Benjamin v. Kerik, 528 U.S. 824 (1999)

(noting that the (b)(3) requirement of "written findings" meant that

the "immediate termination" of (b)(2) was necessarily less than

instantaneous); see also Berwanger v. Cottey, 178 F.3d 834, 839 (7th

Cir. 1999) ("immediate" in (b)(2) does not mean "instant," given that

court needs "time to make finding" called for in (b)(3)). Because the

PLRA does not on its face address whether the district court must make

these written findings when the conditions of (b)(3) are met, nor does

it explain how a court could make written findings of current

conditions on the basis of a stale record, courts have suggested that

there are circumstances in which additional evidentiary findings are

appropriate or even necessary prior to termination. See Hadix v.

F.3d at 661 (finding it implausible, on the record, that (b)(2)
requirements were met by prior factual findings).

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Johnson, 228 F.3d 662, 671-72 (6th Cir. 2000); Gilmore v. California,

220 F.3d 987, 1008, 1010 (9th Cir. 2000); Cagle, 177 F.3d at 258; Loyd

v. Alabama Dep't of Corr., 176 F.3d 1336, 1342 (11th Cir.), cert.

denied, 528 U.S. 1061 (1999); Benjamin, 172 F.3d at 165-66 ("Evidence

presented at a prior time . . . [can] not show a violation that is

'current and ongoing.'" As a result, "the record" referred to in

(b)(3) "must mean a record reflecting conditions as of the time

termination is sought.").

The other courts of appeals that have assessed whether the

PLRA requires an evidentiary hearing prior to termination of a consent

decree have reached somewhat different results as to when such a

hearing is required. In Benjamin, the Second Circuit interpreted

§ 3626(b) "to mean that, when the plaintiffs so request . . . the

district must allow the plaintiffs an opportunity to show current and

ongoing violations of their federal rights." Id. (emphasis added); see

also Hadix, 228 F.3d at 671-72 ("[T]he party opposing termination must

be given the opportunity to submit additional evidence."). The

Eleventh Circuit, although it did not find that an evidentiary hearing

was mandated by statute, found that a district court's refusal to hold

such a hearing constituted an abuse of discretion, even when current

reports were being provided to the court. See Loyd, 176 F.3d at 1342.

The Fourth Circuit has placed a higher burden on the plaintiff, holding

that a district court " may, in its discretion conduct a pretermination

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evidentiary hearing," but that it "at a minimum . . . must hold such a

hearing when the party opposing termination alleges specific facts

which, if true, would amount to a current and ongoing constitutional

violation." Cagle, 177 F.3d at 258 (emphasis added).

Although we did not specifically address this issue in Rouse,

we suggested a similar approach to that taken by the Eleventh Circuit

in Loyd, albeit with more weight given to the district court's

familiarity with the consent order and subsequent proceedings. The

Rouse plaintiffs had argued that in the absence of findings to satisfy

the (b)(2) burden, "the district court should have conducted an inquiry

into whether a violation of a federal right exists currently." Rouse,

139 F.3d at 661. We noted "the district court's intimate familiarity

with this protracted litigation [and] its informed evaluation of

current prison conditions." Id. at 662. Our decision not to require

further evidentiary findings was based partly on the fact that the

Rouse court had been receiving periodic reports as to the incidents

covered by the consent decree. Id.

We think the approach hinted at in Rouse is the correct one.

As the Fourth Circuit said in Cagle, the plain language of § 3626(b) is

reasonably clear. If Congress had wished to create a right to an

evidentiary hearing for plaintiffs, it certainly could have done so.

Cagle, 177 F.3d at 258. However, we are unwilling to rob the (b)(3)

limitation of all force, or to leave its application entirely to the

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unreviewed discretion of the district court. Despite the PLRA's

general unfriendliness toward the continuation of existing consent

decrees, Congress clearly anticipated that a district court might make

"written findings based on the record" of "current and ongoing

violation[s]." It is hard to imagine how a district court could ever

make such written findings without an updated record. In certain

circumstances, then, it would seem an appropriate use of the court's

discretion to hold an evidentiary hearing; similarly, in certain

circumstances it would be an abuse of that discretion to deny

plaintiffs an evidentiary hearing once requested.

B

Given that they are not entitled by statute to an evidentiary

hearing, plaintiffs argue that in this case the district judge abused

his discretion by not holding a hearing. We first assess whether

further evidence was necessary in this case, and then determine whether

plaintiffs in fact lacked the opportunity to supplement the record.

We should start by noting that if any record would benefit

from supplementary findings, it would be this one. Although an

extensive trial record exists, no fact-finding took place after 1995.

"Evidence presented at a prior time [can]not show a violation that is

'current and ongoing.'" Benjamin, 172 F.3d at 166. At times, an

evidentiary hearing is not necessary because the district court has a

comprehensive knowledge of whether a prison is, or is not, continuing

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to violate the consent decree. See Rouse, 129 F.3d at 662 (district

court had been receiving periodic evaluations). But see Loyd, 176 F.3d

at 1342 (possession of eleven reports, the most recent two months

prior, by district court, insufficient). Not only had the district

court here received no further information on potential violations

between the 1995 trial and the 1999 ruling, but the case had been

transferred to an entirely different judge who lacked any intimate

knowledge of the prison conditions or the circumstances of the decree.

Cf. Rouse, 129 F.3d at 661 ("A trial court generally is thought to be

the best interpreter of its own prior rulings and findings, and this

case is no exception.") (internal citations omitted). The attenuated

and inevitably disjointed history of the present case suggests that the

ordinary factors counseling reliance on the district court's

familiarity with the case are lacking here.

Appellee argues that the district court did not abuse its

discretion because it allowed the plaintiffs to supplement their

findings in a memorandum, received that memorandum, and found that

plaintiffs had not met their burden under (b)(3). The district court

did request that plaintiffs "explain[] why the Consent Decree should

not be terminated and the pending Motion for Contempt be deemed moot."

Laaman, April 20 Order. Plaintiffs filed a memorandum on May 15, 1999,

highlighting the evidence of Eighth Amendment violations committed

prior to 1995 that was contained in the existing record. The district

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court then found that "plaintiffs have failed to demonstrate that a

basis currently exists for finding that the decree 'extends no further

than necessary to correct the violation of the Federal right,' or that

the decree is 'narrowly drawn and the least intrusive means to correct

any alleged violations of the plaintiffs' federal rights." Laaman,

June 15 Order.

Of course, the district court could not have abused its

discretion if it did, in actuality, grant plaintiffs the opportunity to

supplement the evidentiary record, and they simply neglected to do so.

However, although the April 20 Order could have been understood as an

opportunity for plaintiffs to supplement the record with more

contemporaneous allegations of constitutional violations, it could also

have been interpreted as a limited request for plaintiffs to highlight

the most heinous parts of the already existing record. See Laaman,

April 20 Order at 2 ("It does not appear from a review of the record

that the Laaman Consent Decree can survive.") (emphasis added).

Plaintiffs apparently did not interpret the April 20 Order as a request

to enhance the record or introduce new allegations of harm. Although

plaintiffs' discussion of (b)(3) in their responsive memorandum noted

that "the record may include supplemental information," the extensive

list of constitutional violations presented in their response only

addressed those which had occurred prior to 1995 and were already

contained in the record. Moreover, neither the district court's June

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15, 1999 Order nor its June 30, 1999 Order (following plaintiffs'

Motion to Alter or Amend) suggested that the failure to provide

supplementary evidence of current and ongoing violations was relevant

to the decision.

Given our holding in Rouse and the similar approaches taken

by other courts of appeals that have reached this issue, we think that

in certain cases the PLRA allows a plaintiff the opportunity to present

evidence consistent with § 3626(b)(3) prior to the termination of a

consent decree under § 3626(b)(2). The scope of that evidentiary

presentation is a matter of discretion for the district court; however,

Rouse contemplates that the district court exercise that discretion

based on its familiarity with the record and with any "current and

ongoing" violations that might not appear in the record due to its age,

while considering the PLRA's bias toward the termination of consent

decrees. In this case, given the peculiar circumstances of the

litigation, the severe potential for prejudice upon termination of the

consent decree, and the substantial evidence of violations prior to

1995, the district court should have more clearly indicated its

evidentiary requirements in the April 20 Order, or at the very least

given plaintiffs an opportunity to amend their May 15 pleading to

address supplementary allegations. To simply terminate without

allowing plaintiffs such an opportunity was an abuse of the district

court's discretion.

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 C

There remain two issues requiring brief comment. One relates

to the district court's June 15, 1999 order in which the court declared

that the existing consent decree did not meet the conditions of

§ 3626(b)(2) and went on to say the following:

Moreover, plaintiffs have failed to demonstrate
that a basis currently exists for finding that
the decree "extends no further than necessary to
correct the violation of the Federal right" or
that the decree is "narrowly drawn and the least
intrusive means to correct" any alleged
violations of the plaintiffs' federal rights.
Accordingly, the Consent Decree must be
terminated.

Laaman, June 15 Order. This determination was repeated in substance in

the court's June 30, 1999 order.

What may be buried in this paragraph and account for the

ultimate result is a double assumption: that no matter what the

plaintiffs showed in an evidentiary hearing, nothing in that showing

could in light of the new statutory requirements justify a continuation

of this consent decree; and that the only option permitted was to

terminate the decree while reserving (as the June 15 order did)

"plaintiffs right to seek relief from any further alleged Eighth

Amendment violation in separate actions." The first assumption may

well be right, given the stringent conditions attached to the "is not

terminated" provision in § 3626(b)(3). But the second assumption,

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which we may be misattributing to the district court's order, does not

seem to us correct.

The "limitation" provision, preserving an option to

perpetuate an existing decree even though the now required findings

were "absen[t]" when the "relief was [originally] approved or granted,"

§ 3626(b)(2), is not in our view limited to cases where current

violations exist and the statutory findings can now be made as to the

original decree. Rather, while the statutory language is not perfectly

clear, it appears to us likely that the limitation provision assumes

that the district court may modify the decree so that it both addresses

the current violation and conforms to the statutory requirements ("no

further than necessary, etc.). See Gilmore, 220 F.3d at 1007-08.

Such a reading would appear to serve Congress's double

purpose of assuring that there is still a "current and ongoing

violation" to justify an existing decree and also its overriding

purpose that all such decrees rest on findings that show that the

decree is no broader than necessary, in the terms set forth in both

§ 3626(b)(2) and (b)(3). Since this legal issue has not fully been

argued by the parties, we do not foreclose the district court from

considering it further after full briefing; but as presently advised

the court's apparent rationale quoted above seems to us mistaken.

The other issue that warrants brief comment but, again, not

a resolution, is what options are open to the district judge if, on

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remand, he should find that a current and ongoing violation exists. In

our view it should not be assumed that the district court is then

automatically required to alter the consent decree and make the

statutory findings that would permit the decree to continue. But see

Gilmore, 220 F.3d at 1008 (holding to the contrary). Imagine, for

example, that the evidentiary hearing shows few or limited violations

that could more appropriately be rendered by terminating the present

case and allowing an individual to press a new suit in which a fresh

decree could be addressed directly to these issues.

However, it seems to us that the legal issues thus raised and

the judgments called for are more reasonably made only after the

district court has had an opportunity in an evidentiary hearing to get

a fuller picture of what "current and ongoing violation[s]" of federal

rights, if any, still exist. If there are none - and the burden

remains on the plaintiffs to show that such violations persist - the

question of perpetuating this case and molding new but narrower relief

will be moot; conversely, if violations are shown, the court will have

a more developed context for answering the legal and policy questions

that we have noted but on which we reserve judgment.

CONCLUSION

Plaintiffs should have the opportunity to demonstrate

"current and ongoing" violations of constitutional rights that would

prevent termination of the Consent Decree pursuant to § 3626(b)(3).

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Whether this determination may be facilitated by proffered showings and

briefings in the first instance or whether a full-fledged evidentiary

hearing is required before further action is a matter for the

discretion of the district court. The decision below is vacated and

remanded for further action consistent with this opinion.

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