Costello v. Wainwright, 75--2392

• Decision Date: 15 January 1976
• Docket Number: No. 75--2392,75--2392
• Citation: 525 F.2d 1239
• Parties: Michael V. COSTELLO, Plaintiff-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1239

525 F.2d 1239

Michael V. COSTELLO, Plaintiff-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections Defendant-Appellant.

No. 75--2392.

United States Court of Appeals Fifth Circuit.

Jan. 15, 1976.

Rehearing En Banc Granted March 3, 1976. 528 F.2d 1381.

Donna H. Stinson, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Jerry Oxner, Chief Trial Counsel, Robert L. Shevin, Atty. Gen., Raymond W. Gearey, Atty. for Fla. Div. of Corrections, John A. Barley, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendant-appellant.

Tobias Simon, Miami, Fla. (Court-appointed), for plaintiff-appellee.

Brian K. Landsberg, William C. Graves, U.S. Dept. of Justice, Washington, D.C., for amicus curiae.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, TUTTLE and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from an Order and Preliminary Injunction entered on May 22, 1975 by the trial court, requiring the Director of the State's Division of Corrections to lower its inmate population to 'emergency capacity' within one year of the date of the Order, and to 'normal capacity' by December 1, 1976. The suit was instituted in February 1972 as a class action on behalf of all prisoners in Florida, and the district court designated the United States as amicus curiae in December 1972. The amended complaint ultimately filed in January 1973 alleged a constitutionally inadequate level of medical care caused by severe over-crowding of prison facilities, resulting in violation of the cruel and unusual punishment, due process and equal protection clauses of the Constitution. Plaintiffs sought injunctive relief to alleviate the conditions complained of.

An application for a preliminary injunction filed by plaintiffs on February 8, 1973 was denied without prejudice by the district court: 'on the basis that the defendant Director of the Division of Corrections, Louis L. Wainwright, had himself closed the prison system to additional inmates because of the danger to the health and lives of the inmates. (Emphasis added).' Renewal of that application was made a month later and was denied. However, soon thereafter the court appointed Dr. Kenneth B. Babcock: ¹ (1) to serve in his professional medical capacity as expert special master of this Court (along with Doctor Joseph Alderete ² and others) by organizing, directing and conducting a comprehensive health services survey of all correctional institutions and road camps maintained and operated by the Division of Corrections; (2) to report his findings to the Court on the entire spectrum of health care services rendered to the inmates in custody of the Division of Corrections; and to report, as a matter of professional medical expert opinion, those remedial measures, if any, which were medically necessary to insure a minimally necessary medical program and system of health care to the inmates committed to the custody of the Division of Corrections.

Following the acceptance of a pre-trial stipulation by the district court in January 1975, the plaintiffs filed their second Renewal of Application for Preliminary Injunction (seeking to close the state prisons to further entrants) in April 1975. After holding hearings in April and May for the purpose of considering this application, on May 22, 1975 the court entered its order denying defendant's motion for a three-judge court and granting plaintiffs' application for preliminary injunction.

On June 10, 1975, however, this Court granted appellants a temporary stay of the district court's May 22nd order, and directed the trial court to conduct further hearings 'to develop a record . . . on the question of the minimum timetable for accomplishing all parts of the order, assuming this Court affirms that order on the merits.' The Court of Appeals' order indicated this was being done because the appellate court was of the view that 'Florida's representations of impossibility are serious enough to warrant further fact-finding.' Consequently, on June 16 and 17, 1975 the district court conducted further hearings and on June 27, 1975, entered and certified to this Court its findings of fact and conclusions of law, essentially reaffirming its May 22nd order on the merits. That order in essence required the following staged reduction of the over-crowded conditions within:

                 90 days -   2,000  inmates over emergency capacity
                150 days -   1,500     " " " "
                210 days -   1,000     " " " "
                270 days -     500     " " " "
                365 days -       0     " " " "
                December 1, 1976    - O inmates over normal capacity
                

It also provided that by June 11, 1975, no more than one inmate was to be confined to each one-man cell at the Reception and Medical Center and that each inmate was to be provided a bed.

On July 25th we granted appellants a stay of the district court's order pending disposition of this appeal.

Appellant Wainwright makes three arguments on appeal: (1) that the order and preliminary injunction at issue embody a determination of issues not the proper subject of disposition by a single judge, and that a three-judge court should have been empanelled; (2) that the trial court should have abstained from further consideration and final disposition of the issues raised in appellees' application for injunction filed on April 21, 1973; and (3) that the trial court's May 22nd order is not supported by substantial evidence.

I. NECESSITY OF A THREE--JUDGE COURT.

Appellant Wainwright's first contention on appeal is that 28 U.S.C. § 2281 required the empanelling of a three-judge court in this case. That statute provides as follows:

'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.' (Emphasis added.)

Appellant's argument that § 2281 is applicable to the instant case rests upon the premise that the practical effect of the trial court's May 22nd order and preliminary injunction is to enjoin the provisions of a Florida statute which requires the Director of the Division of Corrections to accept, house, maintain and care for persons duly committed to the Division. Refusing to accept additional inmates and/or releasing a substantial number of them, appellants contend, would be the only way to comply with the district court's mandate to reduce the overall inmate population to the extent and within the time frame specified, in view of certain fiscal, time and physical limitations which exist; therefore, the effect of the trial court's order will inevitably be to enjoin the further operation of the State statute mentioned above.

It would, of course, be too facile an answer to this contention by the appellants to point to the literal language of the statute which requires the appointment of the three-judge court only if the injunctive order of the trial court is based 'upon the ground of the unconstitutionality of (a specific) statute.' In our case of Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973) this Court concluded that a § 2281 court was required where statewide practices, which in reality were the statewide rules and regulations of a state department of corrections as applied, were directly challenged as being unconstitutional. In Newman v. State of Alabama, 503 F.2d 1320 (5th Cir. 1974) this Court construed the Sands opinion as holding that 'the complaint's failure to explicitly challenge the constitutionality of a specific regulation will not vitiate the need to convene a three judge court, where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not specifically challenged. . . .'

The trial court's order requiring that by certain dates in the future the prison population of the State of Florida be reduced to a figure not in excess of the figure which the state itself had denominated 'emergency capacity' ³ after 365 days and exceeding its 'normal capacity' after December 1, 1976 clearly would not 'inexorably condemn' the statutes to which the state draws our attention. The Newman case affirmed a judgment of the District Court for the Middle District of Alabama which required substantial affirmative conduct in improving the medical facilities in the state prisons in Alabama. It would, it seems to us, be an extreme example of logomachy were we to attempt to distinguish the case now before us and Newman relative to the contention that a three-judge district court is required here. Neither the requirement that the defendant Wainwright receive all prisoners required by Florida statute to be sent to his custody nor that he keep them in his custody in accordance with the Florida statute is attacked by this litigation. What is attacked is the method and manner of keeping them. The trial court expressly pointed out that the injunctive order did not prevent the defendant from increasing the emergency capacity or the normal capacity of the Florida prison system during the period covered by the preliminary injunction. Thus, the way is wide open for the State of Florida to meet the requirements of the injunctive order without the defendant being given the Hobson's choice of complying with the state statute or complying with the Court's order.

Moreover, other agencies of the State of Florida are also in the position of ameliorating the overcrowding situation which is the sole basis for the preliminary injunction appealed from. We should not assume that, once a determination had been made by a competent court that...