683 F.2d 1312 (11th Cir. 1982), 81-7606, Newman v. State of Ala.

Docket Nº:81-7606, 81-8003.
Citation:683 F.2d 1312
Party Name:N. H. NEWMAN, et al., Plaintiffs-Appellees, United States of America, et al., Amicus Curiae, v. STATE OF ALABAMA, et al., Defendants-Appellees, Charles A. Graddick, Attorney General, State of Alabama, Movant-Appellant. N. H. NEWMAN, et al., Plaintiffs-Appellees, United States of America, et al., Amicus Curiae, v. STATE OF ALABAMA, et al., Defendant
Case Date:August 09, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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683 F.2d 1312 (11th Cir. 1982)

N. H. NEWMAN, et al., Plaintiffs-Appellees,

United States of America, et al., Amicus Curiae,


STATE OF ALABAMA, et al., Defendants-Appellees,

Charles A. Graddick, Attorney General, State of Alabama,


N. H. NEWMAN, et al., Plaintiffs-Appellees,

United States of America, et al., Amicus Curiae,


STATE OF ALABAMA, et al., Defendants-Appellants.

Nos. 81-7606, 81-8003.

United States Court of Appeals, Eleventh Circuit

August 9, 1982

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[Copyrighted Material Omitted]

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Charles A. Graddick, Atty. Gen., pro se, Rosa G. Hamlett and John R. Lockett, Asst. Attys. Gen., Montgomery, Ala., for State of Ala.

Ralph I. Knowles, Jr., Tuscaloosa, Ala., M. R. Nachman, Jr., Montgomery, Ala., Jack Drake, University, Ala., for Governor James.

Robert D. Segal, John L. Carroll, Montgomery, Ala. (court-appointed), for Pugh.

John C. Bell, U. S. Atty., Montgomery, Ala., for Bennett.

Philip H. Butler, Montgomery, Ala. (court-appointed), for Newman.

Alvin L. Bronstein, Washington, D. C., for Nat. Prison Projects/American Civ. Liberties Union.

Edwin A. Strickland, Birmingham, Ala., for Gloor, Doss and Edreich.

W. Scears Barnes, Alexander City, Ala., for Ala. Bd. of Corrections.

Appeals from the United States District Court for the Middle District of Alabama.

Before MORGAN, TJOFLAT and KRAVITCH, Circuit Judges.

TJOFLAT, Circuit Judge:

On July 15 and December 14, 1981, the district court ordered officials of the Alabama Department of Corrections to release from custody several hundred convicted state prisoners as a means of reducing unconstitutional overcrowding in the Alabama prison system. In these consolidated cases,

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those officials, the Attorney General of Alabama, and the Governor of Alabama, as receiver of the Alabama prison system, challenge the propriety of the district court's orders. Because the appellants have fully complied with the July 15 order, we dismiss the appeal of that order as moot. As for the December 14 order, we conclude that the record does not support its entry. We therefore vacate that order and remand this case to the district court for further proceedings.


We recite only so much of the eleven year history of this litigation as is necessary to our decision. Beginning in 1971, the plaintiffs, all of whom are Alabama prison inmates, brought three separate lawsuits to redress alleged constitutional violations in the Alabama prisons. See Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala.1972); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976); James v. Wallace, 406 F.Supp. 318 (M.D.Ala.1976). 1 On more than one occasion the district court held that the conditions in the Alabama prison system, including overcrowding, violated the rights of inmates under the eighth and fourteenth amendments and ordered injunctive relief. 2 The court's actions in these cases were affirmed, with modifications, on consolidated appeal. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). 3 In 1979, in an effort to expedite compliance with its orders, the district court appointed Alabama Governor Fob James receiver of the Alabama prison system, charged with bringing the system into conformity with the court's decrees. Newman v. Alabama, 466 F.Supp. 628 (M.D.Ala.1979).

On October 9, 1980, the district court approved and signed a consent decree in which the defendants and the receiver (collectively, "the State") agreed to comply fully with all prior remedial orders of the court within specific deadlines. In the portion of the consent decree relevant to this appeal, the court directed the State to reduce periodically the number of state prisoners held in county jails until September 1, 1981, when none were to remain. 4

Rather than steadily decreasing as the consent decree required, the population of state inmates in county jails actually increased throughout the early months of 1981. The plaintiffs took no steps, however, to obtain compliance with the consent decree; they did not move the district court to order the State to show cause why it should not be held in civil contempt for violating the decree. Instead, they filed a "Motion to Require the Provision of Sufficient Funds for Compliance With the October 9, 1980, (Consent) Order or the Release

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of Members of the Plaintiff Class Until There is Compliance." This motion asked the court to direct the State to provide funds sufficient to build new prison facilities that would alleviate the overcrowding in county jails. Alternatively, the motion requested the release from state custody of 200 prisoners a week until no state prisoners remained in county jails.

The district court held a hearing on the plaintiffs' motion at which the parties stipulated that the overcrowding of state prisoners in county jails had not abated. The plaintiffs abandoned their request for prison construction funds 5 and asked the court for immediate relief from the overcrowding. On May 20, the court ordered the Department of Corrections to submit to the court a list of 250 prisoners "least deserving of further incarceration"; additional lists, each with the names of 250 prisoners, were to be submitted every two weeks, for a period of eight weeks.

In an order dated July 15, 1981, the district court stated that it had given the defendants "every possible opportunity ... to achieve compliance with ... Orders of this Court within the last nine years," yet the State had been "continuously in direct violation of the Orders of this Court." 6 The court concluded that it had "a duty to protect the constitutional rights" of Alabama prison inmates and that "the only valid substantial relief available ... is the release of a substantial number of inmates to help relieve the overcrowded condition of the Alabama Prison System." The court named 400 inmates to be released, 7 and ordered that on July 24, writs of habeas corpus issue for these prisoners; 8 it also accelerated the parole eligibility dates of fifty others. 9 On July 22, the court amended its July 15 order by reducing the number of inmates to be released on habeas corpus to 277. 10 On July 25, the State complied with the habeas writs and released the designated prisoners. 11

Despite the July 25 release of 277 prisoners, the plaintiffs remained dissatisfied with

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the overcrowded conditions of the county jails. Again, instead of seeking to have the State held in contempt and coercive sanctions imposed for its noncompliance with the October 9, 1980, consent decree, they moved for "enforcement" of that decree by asking the court to release more prisoners. The motion was heard on November 12. The parties stipulated that approximately 1,500 state prisoners remained in county jails, though the consent decree required that none be confined there beyond the previous September 1. On December 14, 1981, the court ordered the release of 352 named inmates on December 22. This order differed from the one issued on July 15 in three respects. First, the court did not issue writs of habeas corpus. 12 Second, the court placed the releasees on parole, subject to the parole authority of Alabama law. Third, the court ordered that all unreleased inmates who would be eligible for parole within six months of the date of its order be considered for parole immediately.

The State moved the district court to stay its December 14 order; the motion was denied. The State then applied to us for a stay, and we granted one pending this appeal. Both the district court's July 15 and December 14 orders are before us. 13


We first determine that the appeal of the district court's July 15 order should be dismissed as moot. The defendants have fully complied with that order directing release of specifically named inmates and accelerating parole eligibility for others. The July order was not a continuing injunction; it merely required the State to perform certain discrete acts, which it did. No action by this court could change what has been done, and "federal courts are without power to...

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