Klinger v. Department of Corrections

• Decision Date: 07 October 1994
• Docket Number: No. 93-2928,93-2928
• Citation: 31 F.3d 727
• Parties: Cheryl KLINGER; Linda Lange; Gweniver Lay; Stacy Finn, Appellees, v. DEPARTMENT OF CORRECTIONS; Harold Clarke, Director; Larry A. Tewes, Assistant Director, Nebraska Department of Correctional Services and former Acting Superintendent of Nebraska Center for Women; Victor Lofgreen, Former Superintendent of Nebraska Center for Women; Larry Wayne, Superintendent of Nebraska Center for Women; Judith Danielson, Psychologist, Nebraska Center for Women; Margaret Wehland, Medical Nurse, Nebraska Center for Women, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 727

31 F.3d 727

63 USLW 2124

Cheryl KLINGER; Linda Lange; Gweniver Lay; Stacy Finn, Appellees, v. DEPARTMENT OF CORRECTIONS; Harold Clarke, Director; Larry A. Tewes, Assistant Director, Nebraska Department of Correctional Services and former Acting Superintendent of Nebraska Center for Women; Victor Lofgreen, Former Superintendent of Nebraska Center for Women; Larry Wayne Superintendent of Nebraska Center for Women; Judith Danielson, Psychologist, Nebraska Center for Women Margaret Wehland, Medical Nurse, Nebraska Center for Women Appellants.

No. 93-2928.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1994.

Aug. 10, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 7, 1994. ^*

Laurie Smith Camp, Asst. Atty. Gen., Lincoln, NE, argued, for appellants.

Gail S. Perry, Lincoln, NE, argued, for appellees.

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

This is an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b). We are asked to determine whether the district court properly applied the law in finding present and past administrators of the Nebraska Department of Correctional Services (Department) liable for violating the equal protection rights of female inmates (plaintiffs) in the Department's prison system as to the provision of prison programs and services in this class action suit. Because we hold that the plaintiffs are not similarly situated to male inmates at Nebraska State Penitentiary (NSP) for purposes of prison programs and services, we reverse the district court's order and dismiss the plaintiffs' equal protection claim.

I. BACKGROUND

The Department is a Nebraska state agency that runs the state's ten correctional facilities. Of the ten facilities, Nebraska Center for Women (NCW) is the only one that exclusively houses women. Besides NCW, the Department runs four facilities that house only men: NSP, the Lincoln Correctional Center, the Omaha Correctional Center, and the Hastings Correctional Center. The Department also operates two institutions that house both men and women and three institutions for juvenile offenders.

In July 1988, four NCW inmates filed a pro se complaint in district court, alleging that the Department was treating male inmates more favorably than female inmates with regard to prison programs and services. In October 1988, the district court appointed counsel to represent the pro se inmates. Counsel filed an amended complaint alleging equal protection violations and a motion for class certification. The district court certified a plaintiff class including "all women who were NCW inmates at any time on or after January 1, 1988, through the conclusion of th[e] case."

In April 1989, the magistrate judge warned the plaintiffs to specify each male institution to which they sought to compare programs and services. In June 1989, the plaintiffs filed a second amended complaint, alleging that they receive inferior programs and services in certain areas as compared to NSP inmates. Because of the way that the plaintiffs framed the second amended complaint, discovery proceeded with NSP as the only comparison institution. In May 1990, after months of discovery, the plaintiffs sought leave to file a third amended complaint broadening the comparison group and alleging that NCW inmates were similarly situated for purposes of prison programs and services to all male inmates in the Nebraska system. The magistrate judge denied the plaintiffs' motion, concluding that broadening the comparison group at such a late date would prejudice the defendants because twenty-nine depositions involving both lay and expert witnesses had already been taken and the witnesses were asked to compare conditions at NCW only to those at NSP. The magistrate judge also reasoned that the plaintiffs had been warned in April 1989 to specify to which institutions they wanted to compare programs and services at NCW. The district court agreed with the magistrate judge and thus limited the plaintiffs' comparison group to NSP.

The third amended complaint stated several claims. For purposes of this appeal, the only relevant claim is the plaintiffs' claim under 42 U.S.C. Sec. 1983 that the Department discriminates against the plaintiffs on the basis of sex as to prison programs and services in violation of the Fourteenth Amendment's Equal Protection Clause. Specifically, the plaintiffs alleged that, compared to male inmates at NSP, inmates at NCW receive inferior "vocational, educational and employment opportunities and programs, rehabilitation programs, exercise and recreational programs and facilities, visiting privileges, legal programs, medical, dental and psychological services, and treatment associated with security classifications." I App. at 60. The plaintiffs named as defendants on the equal protection claim are Frank Gunter, former director of the Department; Harold Clarke, current director of the Department; Victor Lofgreen, former superintendent of NCW; Larry Tewes, former superintendent of NCW; and Larry Wayne, current superintendent of NCW.

After the plaintiffs filed their third amended complaint, the defendants moved for summary judgment. The district court granted partial summary judgment to the defendants, but found that there were genuine issues of material fact as to several of the plaintiffs' claims, including the equal protection claim. The district court bifurcated the trial into a liability phase and a remedial phase. The liability phase proceeded to trial on the plaintiffs' surviving claims in July 1992. After a four-week trial, the district court found Gunter and Clarke liable ¹ for violating the plaintiffs' equal protection rights in over a dozen different ways relating to the programs in the challenged areas.

In June 1993, the district court certified three controlling questions of law relating to the plaintiffs' equal protection claim under 28 U.S.C. Sec. 1292(b). The controlling questions of law include:

. Did the court correctly determine that the female inmates at the Nebraska Center for Women are similarly situated to the male inmates at the Nebraska State Penitentiary for purposes of the Equal Protection Clause regarding the programs and services challenged by the plaintiffs?

. Did the court correctly determine that "heightened scrutiny" as opposed to "rational basis" scrutiny is the proper level of scrutiny to judge the equal protection claims of the female inmates at the Nebraska Center for Women and, if so, did the court correctly apply "heightened scrutiny" to the facts?

. Did the court correctly conclude that the Equal Protection Clause requires the State of Nebraska to provide programs and services to female inmates at the Nebraska which are "substantially equivalent" to or in parity with the programs and services provided male inmates at the Nebraska State Penitentiary and, if so, did the court correctly apply such concepts to the facts?

II App. at 512-13. We granted the defendants permission to file an interlocutory appeal under Sec. 1292(b).

II. DISCUSSION

The defendants argue that the district court committed several legal errors in concluding that they are liable for violating the plaintiffs' equal protection rights. Specifically, they assert that the district court erred (1) in finding that the plaintiffs and NSP inmates are similarly situated for purposes of prison programs and services, (2) in concluding that heightened scrutiny rather than deferential review under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), applied to the plaintiffs' claim, and (3) in comparing programs at NSP and NCW on a program-by-program basis. We agree with the defendants that the plaintiffs and NSP inmates are not similarly situated for purposes of prison programs and services. Thus, we reverse the district court's order finding the defendants liable and dismiss the plaintiffs' equal protection claim.

A. The District Court's Opinion

We begin by summarizing the district court's opinion. The court began by discussing whether to apply Turner rational basis review or heightened scrutiny to the plaintiffs' equal protection claim. It concluded that heightened scrutiny was the proper test because "there is no doubt that women are incarcerated at NCW because of their gender alone and not for some other reason." Klinger v. Nebraska Dep't of Correctional Servs., 824 F.Supp. 1374, 1388 (D.Neb.1993).

The court then determined that the plaintiffs are similarly situated to male inmates at NSP for purposes of prison programs and services. First, it reasoned that the plaintiffs and NSP inmates are both prisoners incarcerated in Nebraska institutions. Second, the court found that comparing programs at the two institutions was appropriate because the Department classified NSP and NCW inmates as "roughly comparable" as to custody levels. Third, the court reasoned that the purposes of incarceration were the same for men and women. Fourth, the court distinguished Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir.1990), cert. denied, 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991), in which we held that NSP and NCW were not similarly situated for purposes of privacy rights because of different security concerns at the two institutions. Finally, the court concluded that the appropriate place to take into account differences between NSP and NCW was at the heightened scrutiny stage, and not at the similarly situated stage.

The court proceeded to compare programs and services at NCW with those at NSP on a program-by-program basis. It generally concluded that invidious sex discrimination existed wherever the plaintiffs receive a substantively inferior program or service as compared to NSP inmates, rejecting the reasons that the defendants proffered for the differences in treatment. The court found that the plaintiffs suffered a "substantial burden" as to some nineteen programs and services and that the defendants...