846 F.2d 208 (4th Cir. 1988), 88-7511, Plyler v. Evatt

Docket Nº:88-7511.
Citation:846 F.2d 208
Party Name:Harry PLYLER, et al., (formerly Gary Wayne Nelson, et al.), Plaintiffs- Appellees, v. Parker EVATT, Commissioner, South Carolina Department of Corrections; Members of the South Carolina Board of Corrections, Defendants-Appellants.
Case Date:April 27, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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846 F.2d 208 (4th Cir. 1988)

Harry PLYLER, et al., (formerly Gary Wayne Nelson, et al.),

Plaintiffs- Appellees,


Parker EVATT, Commissioner, South Carolina Department of

Corrections; Members of the South Carolina Board

of Corrections, Defendants-Appellants.

No. 88-7511.

United States Court of Appeals, Fourth Circuit

April 27, 1988

Argued Feb. 3, 1988.

Page 209

T. Travis Medlock, Atty. Gen., Kenneth Paul Woodington, Sr. Asst. Atty. Gen., Columbia, S.C. (Larry C. Batson, Columbia, S.C., Legal Advisor, S.C. Dept. of Corrections on brief), for defendants-appellants.

W. Gaston Fairey (Fairey & Parise, P.A., Columbia, S.C., Nat. Prison Project, American Civ. Liberties Union, Southern Prisoner's Defense Committee on brief), for plaintiffs-appellees.

Before PHILLIPS and WILKINS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WILKINS, Circuit Judge:

The Commissioner of the South Carolina Department of Corrections and the members of the South Carolina Board of Corrections (Department of Corrections) appeal from the denial of a motion for modification of a consent decree regarding correctional facilities. The Department of Corrections also appeals from a recent court-ordered plan requiring early release of approximately 700 prisoners. We vacate the orders and remand for modification of the consent decree consistent with this opinion.


This action was initiated in 1982 when a class of inmates filed suit against the Department of Corrections under 42 U.S.C.A. Sec. 1983 (West 1981), complaining of overcrowded conditions in state prisons. The State of South Carolina, acting through the General Assembly, authorized negotiations, expressing intent "by legislation and appropriations to implement a reasonable settlement of the issues." H.Cong.Res. No. 3054, 1983, S.C. House J. 2837. The General Assembly approved a general agreement reached by the parties in 1984 and simultaneously appropriated funds for capital improvements. Appropriations Act, Act No. 512, Part III, Sec. IV, 1984 S.C. Acts 2176, 3107. A proposed settlement agreement was signed in January 1985 by then Commissioner William D. Leeke, all active members of the Board of Corrections, a representative of the Attorney General, counsel for the inmates, and 26 representatives of the inmate class. The Department of Corrections began immediate implementation of the settlement agreement. Subsequently, the district court orally approved the agreement in November 1985 and by written consent decree in March 1986. Among many other things, the consent decree placed certain requirements on new construction and renovation. It provided that new cells housing a single inmate contain at least 50 square feet and new cells housing two inmates contain at least 100 square feet. The decree further mandated increased staffing, improved medical care, and expansion of educational, vocational

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and recreational programs. Implementation of the provisions was scheduled to take place in stages over a period of five years.

After the agreement was reached, the Department of Corrections began to experience an unanticipated growth in inmate population which made it impossible to comply with some of the housing provisions of the consent decree. As a result, in July 1986 the Department of Corrections sought a temporary delay in compliance pending implementation of a State early-release program. The district court refused to grant an extension and ordered compliance. Although the Department of Corrections appealed, it achieved compliance in the interim, and the issue was mooted. Plyler v. Leeke, 804 F.2d 1251 (4th Cir.1986) (per curiam).

In May 1987, because of the unanticipated increase in inmate population, the Department of Corrections moved for a permanent modification of the consent decree to allow double-celling in five new facilities. Prior to the motion reaching the district court for disposition, a mediator and a United States Magistrate conducted hearings and made recommendations. The mediator recommended that temporary double-celling be allowed in 50% of the new cells. The magistrate recommended that double-celling be permitted in new cells for two years. Rejecting these recommendations in January 1988, the district court refused the modification request and ordered immediate compliance through early-release programs or other appropriate means. The district court then required the Department of Corrections to submit a plan which would have provided for the early release of approximately 700 inmates over the next three months. The district court orders were stayed pending this appeal.


Under the consent decree, inmates in the general population in new facilities who are confined to a cell less than 12 hours per day may be double-celled if the cells contain at least 100 square feet. The Department of Corrections seeks a permanent modification of this provision to allow double-celling at five new medium security facilities in cells which provide 69 to 73 square feet, depending on the facility. Two of these facilities, Lieber and McCormick, are now open, and the others, Broad River, Allendale and Marlboro, are in various stages of construction. Construction schedules call for Broad River to open in April 1988, and Allendale and Marlboro to open in early 1989.

Lieber contains 504 cells of 73 square feet each, and McCormick and Broad River have 504 cells of 69 square feet each. 1 The plans for Allendale and Marlboro were altered in May 1987 to provide for 296 cells of 69 square feet each and 208 cells of 100 square feet each. 2 The design plans for these five new facilities are based on the plans used for construction of the Federal Correctional Institution in Phoenix, Arizona which represents state of the art in correctional facilities. The cells are individual rooms constructed of painted concrete block with tile floors, each with a window and door. Each room is furnished with a sink and toilet, lockers, a desk and chair, and bunk beds. The inmates are allowed to have personal items, such as radios and televisions. They are confined to their rooms only from 11:30 p.m. to 6:00 a.m. All cells are centrally heated and air-conditioned.

These new facilities also provide a variety of amenities. For example, Lieber offers vocational programs in plumbing, carpentry, horticulture and automotive repair. The academic programs include high school

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equivalency and college classes. The prison industry employs inmates in automotive refurbishing. A variety of recreational activities is provided, including sports, crafts, and music. Dayrooms, visiting areas, and a cafeteria dining room are also provided.


The consent decree allows for modification by mutual and joint petition of the parties, and "[a]ny disputed petition for modification shall be reviewed by the Court under the applicable law pertaining to modification of Consent Decrees." The consent decree further provides a procedure by which the Department of Corrections may obtain variances from the space allotments in new construction not specifically addressed in the consent decree, such as Broad River, Allendale and Marlboro. In the event of a dispute, the court is empowered to "make a determination as to the reasonableness of or necessity for said variance, in light of but not limited to the requirements of this Decree and the totality of the conditions, and shall determine whether or not said variance shall be permitted."

The Department of Corrections seeks modification because of an unanticipated increase in prison population. As specified in the consent decree, it anticipated an average net increase of no less than 30, but no more than 50 prisoners per month from 1985 to 1990. In the past, official predictions had been fairly accurate. However, in the past several years actual increases in the number of inmates housed in Department of Corrections facilities have substantially exceeded the estimates. Statistics stipulated to by the parties show that monthly increases for 1985 reached a high of 212 in October with a yearly average of 74 per month. In 1986, highs of 233 occurred in March and September with a yearly average of 84 per month. The high for 1987 was 158 in October and the yearly average was 59 per month.

Pursuant to the decree the parties agreed that if the predictions proved to be inaccurate, "the Court shall order immediate relief, which may include population reductions, release or transfer of prisoners ... or other appropriate relief." We find that the appropriate remedy is modification of the decree to allow double-celling in the five new facilities.


Generally, Federal Rule of Civil Procedure 60(b)(5) provides that the court may modify an order if "it is no longer equitable that the judgment should have prospective application." Under Nelson v. Collins, 659 F.2d 420, 424 (4th Cir.1981) (en banc), a consent decree may be modified in response to material changes in operative law or facts. As found by the district court, the unanticipated increase in population clearly is a change in operative facts which meets this predicate for modification. In addition, the court must balance the competing interests of the prisoners, the Department of Corrections, and the public. "[T]he interests of the prisoners in immediate and strict enforcement of the consent decree" must be weighed against the Department of Corrections' interest "in the orderly administration of the corrections system" and the public interest "in having lawful sentences carried out and in not having parolees put at large without sufficient supervision." Plyler v. Leeke, No. 86-7654, slip op. at 7 (4th Cir. Nov. 12, 1986) [804 F.2d 1251 (table) ] (per curiam).

The dissent maintains that the State must...

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