Palmigiano v. Sundlun ( 1995 )

USCA1 Opinion

          June 27, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 94-1816



                           NICHOLAS A. PALMIGIANO, ET AL.,

                                Plaintiffs, Appellees,



                                          v.



                                BRUCE SUNDLUN, ET AL.,

                                Defendants, Appellees.




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                                   KEITH A. WERNER,

                                Plaintiff, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Keith A. Werner on brief pro se.
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            Alvin J. Bronstein, Mark J. Lopez,  and National Prison Project of
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        the American Civil Liberties Union Foundation, on  brief for appellees
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        Nicholas A. Palmigiano, et al.

            Jeffrey  B. Pine,  Attorney  General, Maureen  G.  Glynn,  Special
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        Assistant  Attorney  General, and  Anthony  A.  Cipriano, Chief  Legal
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        Counsel,  Rhode  Island  Department   of  Corrections,  on  brief  for

        appellees Bruce Sundlun and Rhode Island Department of Corrections.



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                 Per  Curiam.     In  this   long-standing  class  action
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            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,
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            e.g., Ticor  Title Ins. Co. v.  Brown, 114 S. Ct.  1359, 1361
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            (1994).   Even if the district court had discretion to permit



            a  class  member  to  opt-out  in  this  context, see,  e.g.,
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            Crawford v. Honig, 37 F.3d 485,  487 n.2 (9th Cir. 1994), the
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            refusal to  do so cannot be  deemed error in a  case, such as



            this,  where only  equitable  relief has  been  sought.   See
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            Palmigiano v. Garrahy,  443 F. Supp.  956, 959 (D.R.I.  1977)
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            ("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
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            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
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            Auth.  of City  of Providence,  896 F.2d  600, 604  (1st Cir.
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            1990); accord, e.g., Conservation Law Foundation v. Franklin,
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            989 F.2d 54,  58-59 (1st Cir.  1993).  We  likewise find  the



            other  criteria  enumerated in  Durrett  to  have been  fully
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            satisfied.



                 The  judgment  is  affirmed.     Appellant's  motion  to
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            supplement his reply brief is denied.
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