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April 27, 1998


The opinion of the court was delivered by: DUBOIS



 APRIL 27, 1998

 This matter is before the Court on defendants' Motion to Terminate All Outstanding Orders for Prospective Relief pursuant to the Prison Litigation Reform Act ["PLRA" or "the Act"], Pub. L. No. 104-134, 110 Stat. 1321 (1996) (codified in part at 18 U.S.C. § 3626), filed September 23, 1997 (Doc. No. 775), plaintiffs' Motion in Opposition to Defendants' Motion to Terminate Preliminary Relief and in the Alternative to Declare the Prison Litigation Reform Unconstitutional or to Certify the Transfer of This Action's Consent Decree with Related Orders to the Commonwealth Court of Pennsylvania, filed September 24, 1997 (Doc. No. 776), plaintiffs' Motion to Have Defendants and Their Agents Held in Civil Contempt, filed October 8, 1997 (Doc. No. 778), and plaintiffs' Amended Motion for Contempt, filed October 28, 1997 (Doc. No. 797). *fn1" In addition to the submissions of plaintiffs and defendants, the Court has considered the position of the United States government which intervened in the case pursuant to 28 U.S.C. § 2403(a) and submitted a Memorandum of Law Concerning the Constitutionality of the Challenged Provisions of the Prison Litigation Reform Act (Doc. No. 791). Oral argument was heard on November 19, 1997. For the reasons set forth below, the Court concludes that the termination provisions of the Prison Litigation Reform Act at issue are constitutional. Accordingly, the Court will grant defendants' Motion to Terminate All Outstanding Orders for Prospective Relief, deny plaintiffs' Motion to Declare the Prison Litigation Reform Act Unconstitutional and deny plaintiffs' motion to Certify the Transfer of the Consent Decree and Related Orders to the Commonwealth Court of Pennsylvania. The Court will also deny plaintiffs' contempt motions.


History of the Case

 Between 1970 and 1971 four related cases challenging the constitutionality of conditions and policies at the seven Pennsylvania State Correctional Institutions ("SCIs") then in operation *fn2" were filed in this Court. On May 22, 1978, after those suits had been consolidated and a plaintiff class certified, then-Chief Judge Joseph S. Lord, III approved a Consent Decree which settled the majority of issues raised by the plaintiff class. At that time, the Court expressly retained jurisdiction over the Decree. Since then, numerous issues have been addressed in subsequent opinions of the Court and various stipulations and amendments to the Decree have been approved by the Court. *fn3"

 In its current form, the Consent Decree and its amendments govern many aspects of the daily operations of the seven SCIs. The Decree required defendants to establish a code of conduct specifying both that behavior which was punishable - a misconduct - and the type of punishment which could be imposed. The Decree also gives inmates certain rights when charged with a misconduct, including written notice, a hearing, the right to prepare and be assisted in presenting a defense, and the right to written findings. Among its detailed procedures, the Decree governs such things as: the handling of inmate mail; the right of inmates to obtain and keep outside publications; minimum inmate health care requirements; the use of force, restraints and mace by prison officials; the information which must be provided to new inmates; the procedures for conducting cell searches; the right of inmates to visitors; the minimum inmate housing conditions; and the right of inmates to wear civilian clothing.

 In 1980, the plaintiffs filed a contempt motion in which they alleged that defendants' were not complying with a number of the provisions of the Consent Decree. On December 30, 1980, with the assistance of United States Magistrate Judge William F. Hall, the parties stipulated to the dismissal of the motion for contempt and with the further assistance of Magistrate Judge Hall, the 1980 Stipulation was amended by an agreement of the parties and eventually approved by Judge Lord on May 11, 1983 [hereinafter the "1983 Amendment to Stipulation"]. Some of the procedures established by the Consent Decree were modified by the 1983 Amendment to Stipulation, principally the grievance and misconduct procedures. The 1983 Amendment to Stipulation also addressed issues involving medical care, inmate law libraries, cell search procedures and administrative detention.

 The current round of litigation began when defendants filed a Motion to Terminate, seeking to end their obligations under the Consent Decree pursuant to the termination provisions of the PLRA. See 18 U.S.C. § 3626(b)(2). Plaintiffs countered with multiple filings: the first seeks to have the PLRA declared unconstitutional or to have the case transferred to the Commonwealth Court; the others seek to have defendants held in civil contempt.

 2. Issues Presented

 The first, and primary, issue presented is whether the termination provisions of the PLRA are constitutional. Plaintiffs have mounted a multi-prong constitutional attack on these provisions, alleging that they violate the separation of powers embodied in Article III, the due process clause of the Fifth Amendment, the equal protection rights inherent in the Fifth Amendment, and, in a passing reference, the Tenth Amendment's reservation of unenumerated powers to the states. If the Court finds that the termination provisions survive these challenges, it must decide whether, under the PLRA, defendants have satisfied the requirements for termination. Next, the Court must turn to the question of how plaintiffs' contempt motions interact with the PLRA's termination provisions and defendants right to terminate the Decree. Plaintiffs argue that even if the termination provisions are constitutional, defendants' contempt requires this court to stay application of those provisions, either by holding defendants' Motion to Terminate in abeyance or dismissing it until the contempt is purged; plaintiffs premise this argument on the Court's inherent contempt power. Alternatively, plaintiffs' seek to bar defendants from proceeding under the equitable doctrine of "unclean hands." Defendants respond that there is no authority for such action and reiterate their position that the Court should end its supervision of the Consent Decree and its modifications by ordering termination of the Decree. Finally, if defendants are entitled to relief, the Court must decide what is appropriate.

 a. The PLRA's Termination Provisions

 The termination provisions of the PLRA, 18 U.S.C. § 3626(b)(2), recite that defendants are "entitled to immediate termination of any 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." *fn4" Under 18 U.S.C. § 3626(b)(3), a court may not terminate relief if it finds that there is a "current and ongoing violation of the Federal right" *fn5" and that the relief is narrowly drawn, extends no further than necessary and is the least intrusive means possible to correct the violation. (Plaintiffs in this case have expressly declined to attempt to establish that there is a "current and ongoing violation" of a federal right.) Moreover, the court must "promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions." Id. at § 3626(e)(1). *fn6" Prospective relief is defined as "all relief other than compensatory monetary damages," id. § at 3626(g)(7) and relief expressly includes "consent decrees." Id. at § 3626(g)(9).

Background of the Contempt Motions

 Of particular importance to the current contempt motions is the 1983 Amendment to Stipulation. Plaintiffs' contempt motions involve the issue of whether provisions in the 1983 Amendment to Stipulation bind defendants to specific time lines for the resolution of prisoner grievances and misconducts. The 1983 Amendment to Stipulation states that "defendants shall within 60 days of the approval of this Amendment submit to counsel for the plaintiff-class, a proposal for an administrative grievance procedure for the processing of allegations by any member of the plaintiff-class . . . ." 1983 Amendment to Stipulation P I.B.1. In addition, the 1983 Amendment to Stipulation clearly details procedures for misconduct proceedings, including the requirement that the "Program Review Committee shall render its decision within five (5) working days of receipt of an appeal" and that the Superintendent must forward his decision to the inmate within three working days of his receipt of an appeal of the Program Review Committee's decision.

 In a Report and Recommendation dated May 5, 1983, Magistrate Judge Hall made detailed findings with respect to, and recommended approval of, the 1983 Amendment to Stipulation. Included in those findings was a lengthy discussion of the Consolidated Inmate Grievance Review System submitted by defendants pursuant to the 1983 Amendment to Stipulation and the time line for this review; the time line required the Inmate Grievance Coordinator to respond within ten days to a grievance; thereafter an inmate was permitted five days to appeal a decision to the Superintendent who then had to reach his or her own decision within ten days of the appeal. The Superintendent's decision was further appealable within seven days to the three-person Central Office Review Committee ("CORC") which had twenty-one days to reach a decision. This system, and these time lines, were codified in DC-ADM 804 and remained in force until November 1, 1997. See Stipulation of Uncontested Facts P 25. Magistrate Judge Hall's Report and Recommendation was approved and adopted by Judge Lord by Order dated May 11, 1983. *fn7"

 Plaintiffs contend in their contempt motions that the time lines are binding on defendants, that defendants have failed to abide by the time lines, and that that failure constitutes contempt on the part of defendants. In response, defendants argue that they are not bound by the grievance procedures set forth in the Report and Recommendation but only by those procedures contained in the body of the 1983 Amendment to Stipulation itself which does not include the details of the Grievance Review System. They have also stipulated that "from January 1, 1996, through the middle of 1997, the defendants and their agents have failed in a significant number of instances to respond to inmate grievances and appeals therefrom within the time frames described in Magistrate [Judge] Hall's Report and Recommendation." Stipulation of Uncontested Facts, P 24.

 As of November 1, 1997, defendants amended DC-ADM 804 to require only one member of CORC to participate in any given appeal. They argue that this step will streamline the grievance procedure and thus will benefit the plaintiff-class by increasing the prison authority's response time to grievances. *fn8" Plaintiffs contend that defendants may not change these procedures because they are bound by the time lines detailed in Magistrate Judge Hall's Report and Recommendation.

 Defendants also acknowledge that "from January 1, 1996, through the middle of 1997, there have been instances where defendants and their agents have failed to respond to inmate misconduct appeals within the time delineated in Magistrate Judge Hall's Report and Recommendation." Stipulation of Uncontested Facts P 31. Defendants add that the procedures outlined by Magistrate Judge Hall exceed those recommended by the American Correctional Association ("ACA"), id. at PP 27-30, and that they intend to amend the procedures and bring them into conformity with the ACA standards if the Consent Decree is terminated. Id. at P 32. Defendants further insist that the instances of non-compliance with the misconduct time lines do not amount to a system or institution-wide violation and thus, under the terms of the consent decree, plaintiffs may not seek contempt sanctions. *fn9"

 In addition to the alleged failure of defendants to abide by the time frames set forth in the 1983 Amendment to Stipulation and Magistrate Judge Hall's Report and Recommendation, plaintiffs seek to prevent defendants from changing the regulation governing what type of clothing inmates may wear. The regulation in force until November 26, 1997 allowed inmates to wear various types of civilian clothing, including T-shirts and sweatshirts with commercial logos. See DC-ADM 815; Stipulation of Uncontested Facts P 6. The new regulation will effectively limit inmates to a narrow range of approved clothing that is either white or cocoa brown and which does not display any logo, trademark or brand name. See Stipulation of Uncontested Facts P 16. The consequence is that prisoners were required to dispose of those clothes in their possession which did not satisfy the new regulation before that regulation went into effect on November 26, 1997. Possession of non-conforming clothes became punishable on December 26, 1997. Id. at P 18.

 Plaintiffs seek to have defendants held in contempt on the ground that the new clothing regulation violates the original Consent Decree. With respect to that issue, the Consent Decree provides that "defendants shall permit residents to wear civilian clothing when the residents are housed in general population except to the extent that the superintendent of each institution requires institutional issue to be worn for work. However, defendants reserve the right to require residents to wear specific articles of clothing issued solely for the purpose of visitation during a resident's presence in the visiting areas of the institution. Furthermore, defendants reserve the right to impose reasonable regulations with respect to civilian clothing on the basis of safety, sanitary and security considerations." Consent Decree P XVII.

 After the escape of six prisoners on January 8, 1997, Commissioner of Corrections Martin Horn released a Report detailing the causes of, and concerns relating to, that escape. See Id. at PP 9-14. The report detailed "Primary Causes of Escape" and "security lapses that allowed escape." The parties have stipulated that "the issue of inmate access to civilian clothing is listed only thereafter in the report as a concern related to the escape." Id. at P 14. Defendants cite this security concern as a principal reason for the change in clothing policy. *fn10"

 Plaintiffs also seek to have defendants held in contempt based on defendants' alleged failure to provide inmates access to health care through sick calls on weekends. The Consent Decree provides that at "all Bureau of Corrections facilities which provide inpatient treatment for inmates, the Bureau shall provide twenty-four (24) hour medical care to such inmates. . . . [And] there will be daily sick call at all institutions by a properly trained health professional." Appendix A to Consent Decree, PP 4-5.

 Initially, because counsel for the plaintiff class lacked evidence to support the weekend sick call claim, it was voluntarily withdrawn. After the hearing on the pending motions, however, members of the plaintiff class filed Plaintiffs' Objections to Portions of the "Stipulation of Uncontested Facts," filed December 16, 1997 (Doc. No. 828). In this filing, three members, John M. Payne, Stanley J. Hertzog and James (Sonny) Watson, stated in affidavits that in the past, it had been the defendants' practice to provide sick calls on a daily basis. Given this new information, counsel for plaintiffs' class seeks both to reinstate the contempt claim based on inadequate health care and to have the affidavits introduced into evidence. The Court granted the requested relief. *fn11"

 3. Conclusion - Summary

 The Court has carefully considered both the oral arguments and written submissions of the parties and concludes that the termination provisions of the Prison Litigation Reform Act are constitutional. As such, because the requirements of those provisions are met, the Court will terminate the relief provided by the Consent Decree and its amendments. The Court also concludes that it should take this action regardless of whether defendants are currently violating provisions of the Consent Decree. Therefore, to the extent plaintiffs seek coercive sanctions - that is, sanctions which force defendants to comply with the terms of the Consent Decree - the Court need not, and will not, reach the issue of whether defendants are in contempt. To the extent, however, that plaintiffs seek compensatory sanctions - that is, sanctions ordering defendants to compensate plaintiffs for the loss of their civilian clothing - the Court finds that defendants have not violated the provisions of the Consent Decree governing inmate clothing.


 Plaintiffs have challenged the constitutionality of the termination provisions of the Prison Litigation Reform Act on many grounds. They principally argue that the PLRA: violates separation of powers; denies due process; and abridges the right of inmates to equal protection of the law. *fn12" The Court examines each of these grounds below. First, however, it must address a preliminary issue.

 Plaintiffs argue that the Court must examine the statute as a whole in determining whether it is constitutional. It would be improper, they contend, to examine the termination provisions outside the context of the other provisions - such as the limits on federally enforceable settlements, 18 U.S.C. §§ 3626(a)(1)(A), 3626(c), on the duration of relief, id. at 3626(b), on preliminary injunctions, id. at 3626(a)(2), and on the right of prisoners to proceed in forma pauperis, 28 U.S.C. § 1915, to name just a few. This impropriety exists, they argue, because, while any one provision might withstand constitutional scrutiny, when taken together, the PLRA's provisions unfairly burden prison inmates and are thus unconstitutional. Plaintiffs cite Romer v. Evans, 517 U.S. 620, , 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1994) for the proposition that courts, when determining whether a statute measures up to constitutional norms, should look at the entire statute.

 The Court rejects the approach advanced by plaintiffs. It will not examine the constitutionality of the PLRA in its entirety. Romer involved a facial challenge to an entire statute and the Supreme Court therefore examined the statute as a whole. See 116 S. Ct. at 1623; see also Dougan v. Singletary, 129 F.3d 1424, 1427 n.15 (11th Cir. 1997). In this case, only the termination provisions of the PLRA are at issue, and the Court will address only those provisions.

 The Court turns, therefore, to plaintiffs' first argument: that the termination provisions violate Article III's separation of powers both by reopening a final judgment and prescribing a rule of decision.

Separation of Powers

 "In republican government the legislative authority, necessarily, predominates." The Federalist No. 51, 350 (James Madison) (J.E. Cooke ed., 1961). This truism has meant that the "Court has declined to adopt formalistic and unbending rules . . . . [in order not to] unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 92 L. Ed. 2d 675, 106 S. Ct. 3245 (1986) (holding that act giving Commodities Futures Trading Commission power to entertain state law counterclaims does not violate Article III) (citations omitted). At the same time, however, a court must examine legislation "with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary . . . [and must consider] the extent to which the 'essential attributes of judicial power' are reserved to Article III courts . . . the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." Id. (citations omitted).

 Plaintiffs argue first that the PLRA is unconstitutional because the termination provisions violate separation of powers. After careful examination, however, the Court must conclude - like six circuits before it - that the PLRA neither reopens a final judgment ...

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