PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 97-6773 U.S. COURT OF APPEALS
-------------------------------------------- ELEVENTH CIRCUIT
09/28/98
D. C. Docket No. CV-79-G-301-NW THOMAS K. KAHN
CLERK
DONALD PARRISH, on behalf of themselves and all others
similarly situated, GARY BEASLEY, on behalf of themselves
and all others similarly situated, et al.,
Plaintiffs-Appellees,
versus
ALABAMA DEPARTMENT OF CORRECTIONS, JOE S. HOPPER,
Commissioner of the Alabama Department of Corrections,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 28, 1998)
Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior
District Judge.
_______________
* Honorable William Stafford, Senior U.S. District Judge for the
Northern District of Florida, sitting by designation.
EDMONDSON, Circuit Judge:
The Alabama Department of
Corrections appeals the refusal of the
district court to terminate an
injunction. We reverse and remand to
the district court with instructions to
terminate the injunction.
BACKGROUND
2
The District Court for the Northern
District of Alabama entered an
injunction in 1982 prohibiting Alabama
and Lauderdale County from housing
state prisoners in the Lauderdale County
Jail for more than 30 days. The district
court entered the injunction to alleviate
overcrowding (and associated health
problems) at the jail. In 1991, the
Governor of Alabama and the Alabama
Department of Corrections
3
Commissioner were held in contempt for
violating the injunction. In the light of
a second contempt order in 1993,
Lauderdale County constructed a new jail.
The County finished the new jail two
years ago. In 1997, the Alabama
Department of Corrections moved to
terminate the injunction under the
Prison Litigation Reform Act, 18 U.S.C.A. §
3626 (West Supp. 1998) (“PLRA”). Lauderdale
County opposed the motion. The district
4
court denied the motion, and the
Alabama Department of Corrections
appeals.
DISCUSSION
An injunction directed to jail
conditions must be terminated if the
injunction was issued in the absence of a
finding by the district court that the
injunction (a) is narrowly drawn, (b)
5
extends no further than necessary to
correct the violation of a federal right,
and (c) is the least intrusive means
necessary to correct the violation of a
federal right. See
id. § 3626(b)(2). An
injunction shall not terminate, however,
if the court accurately makes written
findings, based on the record, that the
injunction “remains necessary to
correct a current and ongoing violation
of the Federal right” and meets the three
6
criteria in Section 3626(b)(2). See
id. §
3626 (b)(3).
The parties dispute whether a “current
and ongoing” violation of a federal right
1
exists at the Lauderdale County Jail. If
1
The district court made written
findings under Section 3626(b)(3) that
the 1982 injunction was narrowly
drawn, extended no further than
necessary to prevent the jail from being
overcrowded, and was the least intrusive
means to correct and to prevent
overcrowding (and related problems) at
the Lauderdale County Jail. Alabama does
not contest these findings; so we accept
them. We stress, however, that
overcrowding is not necessarily a
7
no violation exists, then the 1982
injunction must be terminated. After
examining the record, we conclude the
evidence is insufficient to prove that a
current and ongoing violation of a
federal right exists in the County’s jail.
Therefore, the injunction must be
terminated.
violation of a federal right. See Rhodes v.
Chapman,
452 U.S. 337, 347-48 (1981). The
only issue truly before us is whether the
district court’s other written findings
demonstrate a current and ongoing
violation.
8
Alabama argues that because no
constitutional violations exist at the
jail right now, no “current and ongoing”
violation can exist. This interpretation
may be a correct view of what Congress
2
intended. But, Alabama’s
2
Congress’s intention in enacting the
PLRA looks to be in line with the Supreme
Court’s view on the involvement of the
federal courts in state prison systems.
Both Congress and the Court suggest a
reduced role for federal courts. When
confronted with state prison litigation,
the Supreme Court has written that
“involvement of federal courts in the
day-to-day management of prisons [has
9
interpretation might be an incorrect
interpretation of “current and ongoing”
because it could blind courts to violations
of federal rights that a court might
reasonably expect to recur soon if the
led to] squandering judicial resources with
little offsetting benefit to anyone. . . .
[F]ederal courts ought to afford
appropriate deference and flexibility to
state officials trying to manage a
volatile environment.” Sandin v.
Conner,
515 U.S. 472, 482 (1995); see H.R.
Conf. Rep. 104-378 (1995) (stating that
Congress designed Section 3626 to ensure
that prospective relief is the “minimum
necessary to correct the violation of a
federal right”) (emphasis added).
10
injunction is dissolved. This
interpretation may possibly also give
too little weight to the prospective
3
nature of the word “ongoing.”
The County has advanced a broader
interpretation of “current and
ongoing.” In the district court, the
3
The phrase “current and ongoing” was
originally enacted as “current or
ongoing.” The phrase was amended in
1997 to its present form. See
Department of Justice Appropriations
Act, 1998, Pub. L. No. 105-119, § 123(a)(2), 111
Stat. 2440, 2470 (1997) (emphasis added).
11
County contended that “current and
ongoing” means a substantial and very
real danger that a violation of rights
will follow the termination of the
injunction. See James v. Lash, 949 F.
Supp. 691, 693 (N.D. Ind. 1996) (construing
“current and ongoing” in PLRA). We need
not decide, however, precisely what
“current and ongoing” means. Even if
we accept -- for argument’s sake -- the
County’s “substantial and very real
12
danger” standard, the County cannot
prevail in this case.
Whether there is a substantial and
very real danger of a violation of a
federal right recurring soon at the
Lauderdale County Jail in the absence of
an injunction may be a mixed question
of law and fact. But we need not decide
whether it is a mixed question or a
question of fact only. Even if we review
13
for clear error, we do see reversible
error.
The district court seemed to rely on
two pieces of evidence -- a newspaper
article and the two contempt orders -- to
find that constitutional violations are
likely to recur if the injunction is lifted.
Relying on these two things to find there
is a current and ongoing violation of a
federal right produced clear error.
14
First, the court -- in a footnote added
by amendment to the district court
opinion -- quoted a newspaper report
that included the following statement:
“Prisons Commissioner Joe Hopper said
Monday state prisoners would continue
to back up in county jails until the
Legislature properly funds the prison
4
system.” We question the usefulness of
4
Neither party -- by motion or by
offering the article into evidence at the
hearing -- seems to have supplied the
newspaper article to the district court.
15
this report of Joe Hopper’s statement in
determining whether a violation of the
Federal Constitution is likely to result if
the injunction is lifted. See Cofield v.
Alabama Pub. Serv. Comm’n,
936 F.2d 512,
517 (11th Cir. 1991) (concluding that district
court erred when it took judicial notice of
newspaper article as proof of fact
asserted in article). The report does not
We assume, therefore, the district court
amended its opinion to take judicial
notice of the newspaper article.
16
suggest that state prisoners would “back
up” to the point where the Constitution
would be violated. In addition, even if
we assume the newspaper is an accurate
report of what was said, statements to
the press are often made for reasons
that have no relation to the true intent
of the speaking party. Moreover, to the
extent the report indicates
disagreement between Alabama’s
Legislative and Executive Branches that
17
might, someday, cause overcrowding, this
kind of internal conflict about
policymaking only further convinces us
that a federal court should not interfere
now. See Turner v. Safley,
482 U.S. 78, 85
(1987) (stressing deference to state
executive and legislative branches in
state prison system litigation).
Second, the district court relied on the
1991 and 1993 contempt orders to suggest
that overcrowding due to the presence of
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state prisoners in county jails will recur.
That the contempt findings were based
on violations of a federal right is,
however, not clear. Violating the 1982
injunction does not necessarily mean
that a federal right was violated. See
Dolihite v. Maughon,
74 F.3d 1027, 1055
(11th Cir. 1996) (failing to meet
requirements of consent decree was no
per se constitutional violation); Green v.
McKaskle,
788 F.2d 1116, 1123 (5th Cir. 1986)
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(“[R]emedial decrees are the means by
which unconstitutional conditions are
corrected but they do not create or
enlarge constitutional rights”).
The pertinent injunction in this case
is more than fifteen years old. The
Supreme Court has cautioned that
injunctions are not to stay in place “in
perpetuity.” Board of Educ. v. Dowell, 498
5
U.S. 237, 248 (1991). To follow the Court’s
5
Dowell makes this statement for
consent decrees, but consent decrees and
20
guidance, earlier violations -- made right
in the meantime -- of the injunction
must eventually be forgiven. We conclude
that, by now, the past acts of contempt
cannot count for much: five years have
elapsed since the last contempt finding,
a new jail has been constructed, no
current constitutional violations exist,
injunctions are interchangeable in this
context. See System Fed’n No. 91 v.
Wright,
364 U.S. 642, 650-51 (1961).
21
and the persons then held in contempt
have been replaced.
Other considerations aid our
conclusion that the record does not
support the existence of a substantial
and very real danger of violating a
federal right at the Lauderdale County
Jail. Most important, no one even
claims the jail is presently overcrowded.
Since the new jail opened, an average of
130 prisoners per day are held in the jail.
22
The jail has a 153 prisoner capacity. We
also note that between 1 July 1997 and 6
July 1997 (the only period for which we
have records) the jail held between 78 and
83 inmates. And, a nurse and doctor are
now under contract to visit the jail
6
regularly.
6
By the way, a class-action lawsuit is
pending in Montgomery County Circuit
Court addressing jail issues such as
overcrowding. The certified class consists
of “all counties and sheriffs in the State
of Alabama which do not currently
benefit from court orders enjoining [the
Department of Corrections] from
23
From the record made in the district
court, we conclude, as a matter of law,
that no substantial and very real
retaining state inmates in county
jails.” Therefore, dissolving the
injunction will let Alabama deal with its
many prison and jail crowding issues in
one lawsuit, rather than confront
multiple -- and potentially conflicting --
district court orders. See generally
Chairs v. Burgess,
143 F.3d 1432, 1438 (11th
Cir. 1998) (noting existence and
significance of potentially conflicting
consent decrees regulating Alabama
prisons). And, the same state lawsuit will
allow the County to litigate without the
constraints imposed by the PLRA. The
existence of this state court litigation
is, however, immaterial to today’s result.
24
danger of a federal right being violated
has been proved for the Lauderdale
County Jail. We must reverse the
district court’s order because the evidence
will not sustain it.
The district court order is REVERSED
and the case is REMANDED with
instructions to terminate the 1982
injunction.
REVERSED and REMANDED.
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