Twelve John Does v. District of Columbia, 88-5254

• Decision Date: 18 November 1988
• Docket Number: No. 88-5254,88-5254
• Citation: 861 F.2d 295,274 U.S.App.D.C. 62
• Parties: TWELVE JOHN DOES, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 295

861 F.2d 295

274 U.S.App.D.C. 62

TWELVE JOHN DOES, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.

No. 88-5254.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1988.

Decided Nov. 18, 1988.

Appeal from the United States District Court for the District of columbia.

Edward E. Schwab, with whom Charles L. Reischel, Frederick D. Cooke, Jr., Washington, D.C., and Paul A. Quander, Jr. appeared on the brief, for appellants.

Peter J. Nickles, with whom Alan A. Pemberton, Gaines H. Cleveland and David L. Russo, Washington, D.C., appeared on the brief, for appellees.

Before MIKVA and D.H. GINSBURG, Circuit Judges, and ROSENN, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This court is yet again faced with a dispute over the much-litigated condition of the District of Columbia's prison system. The District appeals from various orders upholding and enforcing the population lid established by consent decree for the Central Facility at the Lorton prison complex ("Central"). This opinion is in support of our previous speaking order affirming the district court's decision in the largest part. We vacate that portion of the district court's order which requires the District to make certain representations to the district court before transferring Central inmates to other D.C. facilities.

I. BACKGROUND

Most of the District's prison facilities at Lorton have generated litigation from inmates protesting conditions as violations of the eighth amendment to the U.S. Constitution. Two lines of complaints resulted in consent decrees; two others went to trial. The suits protesting conditions at the Central Facility were resolved through one of the consent decrees, entered April 28, 1982. Inmates had complained that Central, built in the 1920s and arranged as a series of open-bay dormitories, subjected inmates to virtually unchecked violence, was over-crowded, dilapidated, understaffed, unsanitary and lacked necessary medical care. Inter alia, the District consented to a provision that prohibited it from incarcerating more than 1166 inmates in the facility.

On August 6, 1988, five days after the district court order now under review issued, there were 1491 inmates at Central excluding the 86 prisoners in the P.G. Modular Unit which is not subject to the decree. This dropped to 1379 by August 31, climbed to 1451 on September 4 and dropped again to 1346 by September 26, the day this appeal was argued. The District of Columbia admits that it has failed to comply with the population ceiling for all but a two-month period since July 1987.

On July 16, 1987, plaintiffs moved that the District be held in contempt for violating the consent decree. The district court held the District in contempt and fined it $250 per day per overcrowded dormitory. But the District continued to pack more inmates into Central than permitted by the consent decree. In December, plaintiffs moved that sanctions be substantially increased. By the time of the hearing, on December 16, the District had removed a sufficient number of inmates that it was in compliance, and higher sanctions were denied. Only two months later, the District was violating the population lid again and has continued to do so since. This court upheld the contempt order on August 26, 1988, rejecting the District's claim that it was impossible for it to comply with the consent decree. Nonetheless, the District has continued to flout the order, seemingly treating the fines as license fees that buy it the right to prolong the dangerously congested conditions at Central.

While the District's appeal of the contempt order was pending, on May 25, 1988, plaintiffs moved to enforce the consent decree--if necessary, by an order that prisoners be released. After the hearing on that motion, the District moved to modify the population ceiling in the consent decree. The District did not request a specific change, but only that the parties be directed to meet and agree. The District rejected a proposal that the ceiling be raised 10 percent along with an increase in medical and correctional staff. The District also declined to file a breakdown of how many additional inmates it was requesting and what plans it had for additional personnel.

On August 1, 1988, the district court denied the motion to modify and issued several orders to specifically enforce the decree. It refused to issue a release order as requested but enjoined the District from assigning any more prisoners to Central and required it to remove at least 150 prisoners per month from Central until the population reached the decree's specified maximum of 1166. Compliance was to be reached by November 1 at the latest. In addition, in the certification provision which we vacate, the court enjoined any transfers of inmates from Central to another District prison unless the Director of the Department of Corrections first certified to the district court that the transfer would not threaten to violate his duty to provide for the adequate care, safekeeping, protection, instruction, and discipline of persons housed in the institution to which the inmates were being transferred.

The District contends that modification of the decree should have been granted because: there are changed circumstances unforeseen at the time it was entered--a massive increase in felony drug convictions; the District has made a good faith effort to comply with the decree; forced compliance would imperil the public interest by requiring release of prisoners. Further, the District maintains that the district court abused its discretion in issuing the injunctions.

II. DISCUSSION

A consent decree, though negotiated by the parties, is a decree entered by a court and subject to the same judicial power to revoke or modify as any other court order. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); System Federation v. Wright, 364 U.S. 642, 650-51, 81 S.Ct. 368, 372-73, 5 L.Ed.2d 349 (1961).

In Swift & Co., the Supreme Court laid out the principle by which such decrees are to be construed: "The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow ... [and those subject to the decree are] suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression." Swift & Co., 286 U.S. at 119, 52 S.Ct. at 464. Rule 60(b)(5) of the Federal Rules of Civil Procedure permits a court to modify a court order if "it is no longer equitable that the judgment should have prospective application." Fed.R.Civ.P. 60(b)(5). Modification is an extraordinary remedy, as would be any device which allows a party--even a municipality--to escape commitments voluntarily made and solemnized by a court decree.

In the past decade, several circuits have suggested that a more flexible standard is appropriate where the decree stems from litigation aimed at institutional reform. See Philadelphia WRO v. Shapp, 602 F.2d 1114 (3d Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980); N.Y. Ass'n for Retarded Children Inc. v. Carey, 706 F.2d 956 (2d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983).

Several of our sister circuits have considered the circumstances under which it is appropriate to modify consent decrees entered in prison reform litigation. In some cases, material changes in operative law or circumstances have been found to warrant modification. E.g., Nelson v. Collins, 659 F.2d 420 (4th Cir.1981). But predictable changes in circumstances have been found not to meet this standard. E.g., Ruiz v. Lynaugh, 811 F.2d 856 (5th Cir.1987). Modification has also been held appropriate where the danger to the public of enforcement outweighed the interests of the prisoners in compliance, as courts sitting in equity are obliged to consider the interests of all those affected by a decree. See Duran v. Elrod, 760 F.2d 756, 759 (7th Cir.1985) (Duran II ).

The Supreme Court has said that wide discretion must be accorded to the district court in deciding whether to modify a consent decree because such a decision requires "a balance of imponderables." System Federation, 364 U.S. at 648, 81 S.Ct. at 371. There are limits to this discretion, though, and the district court's decision may be overturned if unreasonable or based on clearly erroneous findings. We have applied these teachings to our review and we are satisfied that the District of Columbia did not demonstrate such changed circumstances as would warrant modification or that the public would be harmed by enforcement of the decree as originally entered.

A. Changed Conditions Not Shown

The District maintains that the number of prisoners in its system increased dramatically and unforeseeably, attributable entirely to increased felony drug convictions. This court has already found that overcrowding in the D.C. prison system was not unforeseen or unforeseeable. Judge Spottswood Robinson said in a prior appeal concerning this very decree: "The District has for years been aware of recurrent overcrowding in its prisons, and has not taken steps adequate to eradicate the problem." Twelve John Does v. District of Columbia, 855 F.2d 874, 877 (D.C.Cir.1988) (Twelve John Does I ). Indeed, the population ceiling was included in the original 1982 decree because overcrowding was already an issue.

The District is correct that the number of prisoners has increased in the years since the decree was entered; it is incorrect in its implication that the increases occurred mostly in the past two years and in such a way that it was unable to prepare for them. According to the District's own figures, the number of prisoners in the entire system has increased every year since the lawsuit resulting in the consent decree was filed. For example, the average daily population of prisoners in the...