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November 20, 1978

Milton SHAPP et al.

The opinion of the court was delivered by: LORD, III

In an order entered May 30, 1978 we enjoined on Eighth Amendment grounds the continued use of three maximum security cells, known as the "Glass Cage", at the State Correctional Institution at Huntingdon, Pennsylvania. Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893, 898 (E.D.Pa.1978). Defendants, alleging that the constitutional defects in the Glass Cage have been cured, moved on June 7 under Rule 59 of the Federal Rules of Civil Procedure for relief from our judgment. We are thus again asked to consider the mercurial concept of cruel and unusual punishment.


 In our June 7 opinion we described the three isolation cells at Huntingdon as follows:

"The Glass Cage is enclosed by glass walls and a locked steel door. The cells measure approximately 9' deep by 8' wide by 9' high. There is no furniture, no window, and no inside lighting. Cells are equipped with a toilet and sink and are supposed to include a mattress, two sheets, a pillow, and blankets. We saw none of these items during our visits, but the cells were not in use at that time. Outside lighting is totally inadequate for reading. In addition, despite use of a large fan, ventilation is insufficient. The cells are unclean and an unpleasant odor pervades." 451 F. Supp. at 898.

 These observations were made during tours of the maximum security area taken in August 1974 and one year later in August 1975. The injunction against continued use of the three psychiatric cells was anchored in our visceral impressions:

"Our conclusion that the cells in the Glass Cage cannot remain in use is based in large part on our two visits to the institution. On each occasion we were genuinely shocked by the dark, dirty, and totally isolated conditions we observed. We agree with plaintiffs that the continued existence of the Glass Cage constitutes a serious threat to the physical and mental well-being of every resident who is confined there, and thus we conclude that confinement in such conditions could serve no legitimate penological purpose." Id.

 Defendants now argue that because of improvements in the Glass Cage since our last visit over three years ago, conditions are no longer shocking and use of the cells no longer illegitimate.

 II. DEFENDANTS' MOTION: Rule 59(a) or 60(b)?

 Defendants have styled their request that the injunction be lifted as a motion for "new trial or amendment of judgment under Rule 59 of the Federal Rules of Civil Procedure." *fn1" We doubt that a 59(a)(2) motion is the proper procedural vehicle for bringing defendants' argument before us. Professor Moore, discussing Rule 59(a)(2), writes that "(as) a practical matter, in equity formerly and in court actions now, three grounds for new trial are most commonly known: for manifest error of law or fact, and for newly discovered evidence." 6A Moore's Federal Practice, P 59.07 at 59-94 59-95 (2d ed. 1974) (footnotes omitted). Neither manifest error of fact nor of law has been or can be urged by defendants. The "newly discovered evidence" ground is likewise untenable here. "To constitute newly discovered evidence for which a new trial may be granted under Rule 59, the evidence must pertain to Facts in existence at the time of the trial, and not to facts that have occurred subsequently." Id. at 59-115 (emphasis added) (footnote omitted). According to the testimony of Lowell Hewitt, Superintendent of the Huntingdon facility, the improvements cited by defendants were largely accomplished in late 1977, well after our trial of the issue and therefore cannot be the basis of a motion for a new trial or amendment of judgment. It appears, then, that none of the 59(a)(2) grounds for relief is present here.

 Defendants' motion seems more properly within the scope of Rule 60(b)(5) than Rule 59(a)(2). Rule 60(b)(5) provides Inter alia that "(on) motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding (if) it is no longer equitable that the judgment should have prospective application." This, we think, is the logical foundation for defendants' request and the parties tacitly agree, both sides having identified the "key question" as whether it is now "inequitable" to give our May 30th order "prospective application." Memorandum of Law in Support of Plaintiffs' Answer to Defendants' Motion for New Trial at 2; Reply to Plaintiffs' Answer to Defendants' Motion at 2. Because the parties have treated defendants' motion as a Rule 60(b)(5) issue, despite the incongruous Rule 59 caption, and because defendants are still well within the Rule 60(b)(5) "reasonable time" filing limitation, it would be the most hollow formalism for us to dismiss the motion as improperly brought and await a re-labelling of the pleadings. Accordingly, we will consider defendants' argument as though it were in title as well as fact a 60(b)(5) motion.

 Among the showings that may justify vacation of a restraint under Rule 60(b) (5) is proof of a subsequent change in the controlling facts on which the injunction rested. 7 Moore's Federal Practice at 334. A motion for relief from judgment on such grounds is addressed to the sound discretion of the district court and "its exercise of that discretion will not be disturbed unless there was clear error and abuse of discretion." Securities Exchange Commission v. Warren, 583 F.2d 115, 120 (3d Cir. 1978). See Girard Trust Bank v. Martin, 557 F.2d 386 (3d Cir.) Cert. denied, 434 U.S. 985, 98 S. Ct. 612, 54 L. Ed. 2d 479 (1977); Virgin Islands National Bank v. Tyson, 506 F.2d 802 (3d Cir. 1974), Cert. denied, 421 U.S. 976, 95 S. Ct. 1976, 44 L. Ed. 2d 467 (1975). In exercising our discretion we are to be guided by equitable principles, as the Rule expressly instructs, and by the interests of justice, 7 Moore's Federal Practice at 331. Although Rule 60 unmistakably envisions the dissolution of certain restraints, the Third Circuit, citing the need for the finality of judgments, has recently cautioned that injunctions "are not to be lightly vacated." Securities Exchange Commission v. Warren, 583 F.2d at 122.

 Indeed, our Circuit last year reversed, as an abuse of discretion, a district court order granting relief from a consent injunction prohibiting confinement of prisoners in a basement facility, known as the Behavioral Adjustment Unit (BAU), at the State Correctional Institution at Pittsburgh. In Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977), the Commonwealth sought dissolution of the restraint decree under Rule 60(b), without offering any evidence of changed circumstances in the B.A.U. The trial court's approval of defendants' request was held insupportable "because the record (was) barren of facts indicating any entitlement to 60(b) relief." Id. at 1163. In his opinion for a unanimous panel, Judge Layton expressly noted that because intolerable physical conditions had been one of the sources of the complaint a showing that "the physical conditions existing in the B.A.U. had been improved" would be probative of changed circumstances justifying a vacation of the consent judgment. Id. at 1164. *fn2" Our duty here, then, is to determine, consistent with the above considerations, whether the changed conditions in the Glass Cage that defendants have proven eliminate the cruel and unusual elements on which our original decision rested such that continued application of the injunction against use of the observation unit is inequitable. *fn3"


 A federal court asked to determine the constitutionality of a prison unit "cannot dictate to state officials the conditions which the court may feel, as a matter of enlightened and advanced prison theory, should prevail in state penitentiaries." Imprisoned Citizens Union v. Shapp, 451 F. Supp. at 895. State authorities are to be allowed broad latitude in regulating the prison environment in light of the acknowledged penological goals of deterrence, rehabilitation and institutional security, Jones v. North Carolina Prisoners Labor Union, Inc., 433 U.S. 119, 125-26, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 822-26, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974), and only when penal conditions amount to cruel and unusual punishment should a federal court exercise its remedial powers. However, if cruel and ...

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