Glover v. Johnson, 77-CV-71229.

• Decision Date: 14 March 1995
• Docket Number: No. 77-CV-71229.,77-CV-71229.
• Citation: 879 F. Supp. 752
• Parties: Mary GLOVER, et al., Plaintiffs, v. Perry JOHNSON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

879 F. Supp. 752

Mary GLOVER, et al., Plaintiffs, v. Perry JOHNSON, et al., Defendants.

No. 77-CV-71229.

United States District Court, E.D. Michigan, Southern Division.

March 14, 1995.

Deborah A. LaBelle, Detroit, MI, for plaintiffs.

Susan Przekop-Shaw, Asst. Mich. Atty. Gen., Lansing, MI, for defendants.

OPINION

FEIKENS, District Judge.

I. INTRODUCTION

The case of Mary Glover, et al. v. Perry Johnson, et al., as captioned above (ultimately a class action), began on May 19, 1977. The case of Everett Hadix, et al. v. Perry Johnson, et al., Civil Action No. 80-73581 (ultimately a class action), began on September 18, 1980.

In all of the years since these cases were filed until now, the parties have sought this court's active involvement. See Glover v. Johnson, 478 F.Supp. 1075 (E.D.Mich.1979); 510 F.Supp. 1019 (E.D.Mich.1981); 855 F.2d 277 (6th Cir.1988); 721 F.Supp. 808 (E.D.Mich.1989); and 934 F.2d 703 (6th Cir. 1991). See Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich.1988); aff'd 871 F.2d 1087 (6th Cir.1989); 712 F.Supp. 550 (E.D.Mich.1989); aff'd in part and rev'd in part, vacated, in part, remanded, sub nom., Knop v. Johnson, 977 F.2d 996 (6th Cir.1992); cert. denied, Knop v. McGinnis, ___ U.S. ___, 113 S.Ct. 1415, 122 L.Ed.2d 786 (1993).

The key result of the several actions in Glover, both at the level of this court's involvement and in the U.S. Court of Appeals for the Sixth Circuit, was a 1981 Final Order stemming from a negotiated settlement between the parties and a resultant Remedial Plan dated December 6, 1991. See Glover, 934 F.2d at 708. On a parallel track, the various actions outlined in Hadix culminated in an Order, filed May 13, 1985, accepting the Consent Judgment (the "Consent Decree" or the "Decree," filed February 13, 1985), and the Out-of-Cell Activity Plan, dated November 9, 1985.

This common introduction to these two cases results from parallel actions initiated by defendant Michigan Department of Corrections (or "Department of Corrections") to modify the Remedial Plan and the Plan for Vocational Programs and Work Pass, in Glover, and the 1985 Out-of-Cell Activity Plan mandated by the Consent Decree, in Hadix.

While in their motion to modify the Out-of-Cell Activity Plan mandated by the Consent Decree in Hadix, defendants rely on Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), defendants in Glover apply the Rufo principles in seeking modification of the Remedial Plan. Before discussing and deciding the respective motions filed in these two cases, it is important to point out the lengthy and arduous work which these cases have required in order to secure compliance with the Consent Decree and the Out-of-Cell Activity Plan in Hadix, and the negotiated settlement and Remedial Plan in Glover. Even now, after years of attempted compliance, the parties are at odds as to whether the goals have been achieved.

It may be indigenous to the nature of this litigation that it is seemingly endless. For example, with the exception of Michael Barnhart, counsel now for both plaintiff classes, all of the numerous attorneys who have represented the plaintiff class or have been on the staff of the Attorney General are no longer in the cases. The office of Director of the Department of Corrections has had a number of individuals, beginning with Perry Johnson, and now Kenneth McGinnis. The population of the prisons is under constant change and, thus, the inmates who arrive at the prison facilities and are represented in both class actions are unacquainted with the past history of these cases, and see their confinement problems as new matters. Finality in these cases is, accordingly, elusive — even though it is highly desired.

What is striking, too, is the argument that is now marshalled in favor of modification. Curiously, defendant Department of Corrections has argued that public opinion with regard to the "rights" of prisoners has changed.

This court is necessarily concerned with the status of compliance with the various orders, plans, the negotiated settlement and Consent Decree mandates, should this court's involvement be terminated.

These are matters that are at the nerve center of these motions seeking modifications and termination; and they must be dealt with, if possible, in each of the respective opinions and decisions.

In this case, defendants seek, pursuant to Fed.R.Civ.P. 60(b)(5), or alternatively Fed. R.Civ.P. 60(b)(6), an order modifying the compliance monitor and the termination language contained in the Remedial Plan and in the Plan for Vocational Programs and Work Pass.¹

II. BACKGROUND

This civil rights action was originally filed on May 19, 1977, pursuant to 42 U.S.C.A. § 1983, by a class of female inmates housed at the State of Michigan's Huron Valley Women's Facility. Plaintiffs alleged that they were not provided educational, vocational and employment programs comparable to those offered to male inmates in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. After a hearing on the merits, I issued an order finding defendants in violation of the Equal Protection Clause as to educational, apprenticeship, and vocational programming. Glover v. Johnson, 478 F.Supp. 1075 (E.D.Mich.1979). I also found that plaintiffs had been denied adequate access to the courts in violation of the Constitution. Id. These orders were affirmed in Glover v. Johnson, 934 F.2d 703 (6th Cir.1991).

On September 14, 1989, due to defendants' repeated failure to provide female inmates with educational and vocational opportunities comparable to those provided to male inmates in the previous ten years,² I filed an Opinion and Order, which required that a special administrator be appointed to design and implement a remedy for these violations (the "Remedial Plan" or the "Plan"). Glover, et al. v. Johnson, et al., 721 F.Supp. 808, 851 (E.D.Mich.1989). The purpose of the Remedial Plan is to remedy the constitutional violations found by the court in its 1989 order. It encompasses the issues of post-secondary education, apprenticeships, and access to courts. A separate document entitled "A Plan for Vocational Programs and Work Pass" was also submitted.³

III. DEFENDANTS' MOTION TO AMEND OR MODIFY THE COMPLIANCE MONITOR AND TERMINATION LANGUAGE IN THE REMEDIAL PLAN AND THE PLAN FOR VOCATIONAL PROGRAMS AND WORK PASS

As currently written the Remedial Plan and the Plan for Vocational Programs and Work Pass (collectively referred to as the "Plans") require two years of formal monitoring and reporting responsibilities after formal court approval. The Remedial Plan's provisions on implementation, the compliance monitor and termination provide as follows:

Implementation

Defendants shall implement this remedial plan in accordance with its terms on or before two (2) years from the date of its approval by the Court.

Compliance Monitor

Defendants shall monitor the binding provisions of the Remedial Plan and shall file with the Court and serve upon the Court Monitor and Plaintiffs' counsel quarterly monitor reports until the filing of the final monitor report ... The monitor reports shall include the compliance status and the progress of each binding provision set forth in this remedial plan.

Within one hundred and twenty (120) days of the expiration of the two (2) year implementation period, Defendants shall file with the Court and serve upon the Court Monitor and Plaintiffs' counsel a final monitor report describing the compliance status of each binding provision ... After filing of the final report, monitoring of the remedial plan shall terminate.

Termination

Defendants shall be in substantial compliance where 75% or more of the binding provisions in each program area set forth in this remedial plan are found in compliance in the final monitor report. Where the final monitor report reflects substantial compliance with the binding provisions in one or more program areas, the jurisdiction of the Court shall be terminated for each of the compliant areas thirty (30) days from the filing of the final monitor report, unless Plaintiffs file a Motion requesting extension of the Court's jurisdiction due to existence of constitutional violations with the program areas set forth in this remedial plan.

The Plan for Vocational Programs and Work Pass contains similar language.

Defendants move to completely delete the compliance monitor, in each plan, and to modify the termination language as follows:

TERMINATION

Federal court approval of the Remedial Vocational and Work Pass Plan, or any portion of the Remedial Vocational and Work Pass Plan, establishes that all remedial obligations relative to the approved portions (i.e., legal access, educational programming and apprenticeships) which resulted from the findings of constitutional violations, have been satisfied and that the federal court's jurisdiction in the approved area(s) is terminated. Upon approval of the Remedial Vocational and Work Pass Plan, or any portion thereof, an order will immediately be entered terminating the court's jurisdiction over the applicable provision(s).

In considering defendants' motion to modify the compliance monitor and termination language of the Plans, what must be borne in mind is that defendants' motion, in reality, seeks to terminate the Plans and to end the role of the Court Monitor. Thus, defendants seek to terminate the case itself.⁴ Defendants believe that implementation and monitoring of the Plans have been ongoing; therefore, there is no need for a compliance monitor, and no need to monitor defendants' conduct. Defendants believe the monitoring and reporting requirements outlined in the current Plans, in addition to what defendants have already been subject to during the pendency of approval of the Plans, substantially burden them. They argue that the motion should be granted because they have "substantially complied" with this court's previous...