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Batchelder v. Geary

November 15, 2005

EUGENE BATCHELDER, ET AL., PLAINTIFFS,
v.
JAMES M. GEARY, ET AL., DEFENDANTS.



ORDER ON MOTIONS TO TERMINATE CONSENT DECREES [Re Docket Nos. 231, 324, 337, 338, 339, 348, 349, 350, 352, 353].

The opinion of the court was delivered by: Ronald M. Whyte United States District Judge

In 1973, this court approved two consent decrees between Santa Clara County ("County") and inmates in its jails. The first required the County to establish a law library for inmates ("Access to the Courts Decree"). The second required the County to create a written code of rules and procedures to govern the imposition of in-jail disciplinary offenses ("Amended Disciplinary Procedures Decree").*fn1 On November 3, 2004 the County moved to terminate both Decrees under the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626 et seq. Kevin Hopkins ("Hopkins"), Barth Capela ("Capela"), Charles Lyons ("Lyons"), Ricky Reyes ("Reyes"), Theotis Golden ("Golden"), Timothy Walker ("Walker"), and Shawn Bautista ("Bautista") (collectively "prisoners")-who purport to represent a class of pro per inmates in the County's jails-oppose the motion and urge the court to modify, rather than terminate, the Decrees. At the pre-hearing conference on September 27, 2005 the parties agreed that an evidentiary hearing in connection with the motion was not necessary and the matter could be decided based upon declarations. Oral argument took place on November 4, 2005. The court has read the moving and responding papers and considered the arguments of counsel. For the reasons set forth below, the court (1) terminates the Access to the Courts Decree and (2) terminates the Amended Disciplinary Procedures Decree except to the extent that it requires a written statement of decision in certain disciplinary matters and (3) orders the parties to meet and confer with respect to the County's compliance with the requirement for written statements of decision.

I. BACKGROUND

On April 13, 1973 Judge Peckham of this court issued a preliminary injunction against the County's jail system. Schmid Decl. Supp. Mot. Term. Consent Decree ("Schmid Decl.") Ex. A. Noting that inmates have a constitutional right to "adequate access to the courts," Judge Peckham required the parties to submit plans to facilitate this right. Id. at 2. Judge Peckham also noted that the Due Process Clause of the United States Constitution's Fourteenth Amendment entitled inmates who had been charged with disciplinary offenses to certain procedural guarantees, including (1) notice of the alleged infraction, (2) a hearing before an impartial tribunal, (3) clearly-stated prison rules, (4) the right to call and cross-examine witnesses, and (5) the right to some form of representation. Id. at 3-4. Judge Peckham approved a modified version of a disciplinary scheme that the County had proposed. Id. at 7.

The parties filed the Access to the Courts Decree, which Judge Peckham approved on June 20, 1973. Schmid Decl. Exs. B, C. After the United States Supreme Court decided Wolff v. McDonell, 418 U.S. 539 (1974), the parties submitted the Amended Disciplinary Procedures Decree. Schmid Decl. Ex. D. Judge Peckham approved the Amended Decree on August 30, 1977. Schmid Decl. Ex. E. The court briefly describes each Decree below.

A. The Access to the Courts Decree

The Access to the Courts Decree "consists of a combination of furnishing inmates . . . with law books and legal materials and . . . legal services." Schmid Decl. Ex. B at 1. The Decree requires the County to establish law libraries at the Main Jail in San Jose, the Men's Rehabilitation Center in Milpitas, the Elmwood Men's Rehabilitation Center, and the Elmwood Women's Detention Facility. Id. at 1, 5. The Decree mandates that the Main Jail and Men's Rehabilitation Center libraries contain current versions of specific sources. Id. at 1-2. In addition, the Decree created a system whereby inmates could borrow books and material from the Santa Clara Law Library. Id. at 2-3.

B. The Amended Disciplinary Procedures Decree

The Amended Disciplinary Procedures Decree requires the County to provide inmates with a copy of the Uniform Procedures of Prisoner Conduct. Schmid Decl. Ex. D at 1, 2. The Decree provides that prisoners are entitled to a hearing before a Violation Review Board if they plead not guilty to a major rule violation. Id. at 2. Under the Decree, the officer who observes the violation must prepare a written report and forward it to his supervisor. Id. at 3. The supervisor must provide the prisoner with a copy of the violation and inform him of his rights (1) to a hearing, (2) to request aid in investigating and preparing his case, and (3) to request a lay advocate. Id. at 4-5. The hearing must occur no more than five days after the prisoner receives notice of the alleged violation and within ten days of the incident itself. Id. at 5-6. The Decree empowers prisoners to cross-examine witnesses and "to present relevant evidence on his . . . behalf at no expense to the County." Id. at 7. The Decree mandates that the Board "render its decision orally" at the end of the hearing and "thereafter . . . indicate in writing its decision and the facts" on which it relied. Id.

C. The LRA

In 1987, the Santa Clara County Department of Corrections ("DOC") began operating the County's jail system.*fn2 In 2003 the DOC closed the jail libraries. The DOC contracted with Legal Research Associates ("LRA") to serve inmates' legal research needs. Williams Reply Decl.Supp. Rep. Mot. Term. Consent Decrees ("Williams Reply Decl.") Ex. A. Richard Williams ("Williams"), an attorney licensed to practice in California, owns and operates LRA. Williams Reply Decl. ¶ 1.

Inmates first learn about LRA when they see a DOC orientation video upon entering jail. Id. at ¶ 13. Jail personnel inform new inmates that the facility does not contain a physical law library. Marti-Torres Decl. Supp. Rep. Mot. Term. Consent Decrees ("Marti-Torres Decl.") ¶ 4. To use LRA's services, inmates complete request forms. Williams Reply Decl. at ¶ 6(a).*fn3 Twice each day, jail staff collect the forms, log them, and fax them to LRA's offices. Id. at ¶ 6(b). LRA receives the forms, logs them into an electronic database, and prioritizes requests by pro per inmates and other inmates with impending court dates. Id. at ¶ 6(c). LRA then shreds the faxed requests. Id. at ¶ 18. LRA collects responsive information and inserts it into unsealed envelopes. Id. at ¶ 6(d).*fn4 LRA sends the responses by overnight courier to the jails. Id. at ¶ 6(e). At some point, either officers or LRA employees log the date each inmate receives the response. Id. at ¶ 6(e). Officers also return the original research request to the inmate. Id. at ¶ 18. The contract between LRA and DOC requires LRA to respond to inmates within three working days of the request. Id. at ¶ 6(f). If LRA needs more time, it must contact the inmate and explain why. Id.

Williams, who also practices law, spends about 60% of his time working for LRA. Id. at ¶¶ 2, 7. The LRA staff consists of one certified paralegal, Curtis Denton, and four other employees, Shelley Howell, Shani Williams, Sharon Williams, and Jeffery Williams. Id. at ¶ 7. LRA uses Lexis-Nexis and Westlaw for legal research. Id. at ¶ 9.

Williams claims that he designed LRA to facilitate research on behalf of individuals who often lack formal legal training. According to Williams, inmates may request cases by portions of the case name, and LRA employees will search using alternative names if they are initially unable to find a case. Id. at ¶ 10. In addition, LRA has created approximately 500 information packets on subjects about which inmates frequently inquire. Id. at ¶ 11. Williams contends that the packets enable inmates to make research queries in plain English. Id. The packets generally contain statutes, selections from secondary sources, forms, and standard jury instructions. Id. For example, LRA offers packets on how to set aside an information under California Penal Code section 995 or to suppress evidence under California Penal Code section 1538.5. Id. Some packets include sample motion forms, including points and authorities. Id.*fn5

LRA gives inmates printouts from Westlaw's "citing references" function to Shepardize authorities. Id. at ¶ 15. It provides inmates with tables of contents and indices from some secondary sources but not others. Id. at ¶ 16. It does not provide inmates with a list of available packets. Id. LRA also exercises its discretion not to provide certain sources to inmates, such as Law Review articles, Restatements of the Law, or Continuing Education of the Bar publications. Id. at ¶ 17. It also refuses to provide unpublished cases or briefs in order "to avoid having an inmate rely upon authorities that cannot be used in support of requested relief." Id.

D. The County's Disciplinary Policy

The County has a written policy for Inmates Rules and Discipline. Fischer Decl. Supp. Rep. Mot. Term. Consent Decrees ("Fischer Decl.") Ex. A.*fn6 Jail personnel provide inmates with an Inmate Orientation and Rule Book when they enter the facility. Id. at ¶ 2, Ex. B. Rule Books are available in both English and Spanish. Id. at ¶ 2. The County posts copies of the Rules and Penalties conspicuously in all general population housing. Id. The Rule Books set forth the disciplinary procedure for criminal, major, and minor rule violations. Id.

When an officer observes an inmate violating a major rule, he must draft a written infraction report within twenty-four hours. Id. at ¶ 5. The officer must give the inmate a copy of this report. Id. The officer then forwards the report to a sergeant, who investigates the matter. Id. The sergeant informs the inmate that he is entitled to a hearing if he denies committing the violation and may have the assistance of a representative if he desires. Id. at ¶ 6. Friends Outside, a group that assists inmates, may interview witnesses and prepare the inmate for the hearing. Id. at ¶ 8. The hearing must occur within ten judicial days but no sooner than twenty-four hours after the inmate receives a copy of the infraction. Id. at ¶ 9.

Inmates may present documentary evidence and call witnesses at the hearing. Id. at ¶ 10. However, the County sometimes does not permit certain witnesses to appear because of safety concerns. Id. For example, witnesses classified as "double red" have previously assaulted other inmates or staff and thus may not be entitled to call witnesses. Id. Inmates may not cross-examine witnesses. Id. An administrative lieutenant oversees the hearing. Id. at ¶ 11. After the hearing, the panel provides a written statement. Id. at ¶ 13. The statement lists (1) the officer who observed the infraction, (2) the inmates involved, (3) the date the hearing was held, (4) a description of the incident, (5) the hearing lieutenant and panel members, and (6) the panel's factual findings and conclusions. Id. The panel informs the inmate that he may appeal the decision to the Division Commander, who must affirm or reverse within five days. Id.

E. The Prisoners

1. Hopkins

The County incarcerated Hopkins in the Main Jail from December 3, 2003 to April 22, 2005. Hopkins Decl. Supp. Opp. Mot. Term. Consent Decrees ("Hopkins Decl.") ¶ 2; Schmid Decl. Supp. Rep. Mot. Term. Consent Decrees ("Schmid Reply Decl.") ¶ 20(a)(i).*fn7 Hopkins represented himself in his criminal case in California Superior Court from December 11, 2003 until August 18, 2004. Hopkins Decl. ¶ 3. When Hopkins decided to proceed pro per, he "did so under the assumption that [he] would have access to a physical law library." Id. at ¶ 4. After the court approved Hopkins' pro per status, the County provided him with legal tablets, subpoenas, pencils, a sample discovery motion, and criminal procedure rules. Schmid Reply Decl.at ¶ 20(a)(ii). The County also allowed Hopkins to spend about ten hours per week in a word processor room. Id. Ultimately, LRA provided Hopkins with about 3,800 pages of research material, including 104 criminal packets, forty-five statutes, twenty-six cases, one civil packet, and four forms. Williams Reply Decl. ¶ 19.*fn8

Hopkins filed thirty-two criminal trial court motions, two habeas corpus petitions, and two appellate court writs contesting trial court rulings. Hopkins Decl. ¶ 6(a)-(y); Schmid Rep. Decl. ¶ 20(b)(c). The court granted approximately thirteen of Hopkins' criminal trial court motions. Hopkins Decl. ¶ 6(a)-(y). Hopkins claims that LRA is inadequate because it took an average of five to ten days to receive materials in response to his research requests. Id. at ¶ 9. In addition, Hopkins asserts that LRA sometimes ignored his requests or responded that he needed to be "more specific." Id. at ¶¶ 10-11. Hopkins contends that he was not aware that LRA could Shepherdize cases or provide him with expedited responses during trial. Id. at ¶¶ 13-14. Hopkins claims that officers left LRA's responses "between the bars of the communal cell in which [he] was housed, exposing them to any of the dozen or so inmates in that cell." Id. at ¶ 15.

According to Hopkins, LRA's inadequacies prevented him from succeeding on five motions: (1) a motion seeking to release documents produced pursuant to a subpoena deuces tecum, (2) a motion to dismiss the prosecution against him under the ex post facto clause, (3) a motion to compel a witness to appear for cross-examination during his preliminary examination, (4) a motion for access to the courts, and (5) a request for a hernia operation. Id. at ¶¶ 6(d), 17(a)-(d). Hopkins claims that LRA's failures caused him to withdraw from pro per status. Hopkins Decl. ¶ 19.

2. Capela

Capela entered County custody in August 2003. Capela Depo. at 9:20-10:1. The County appointed a public defender to represent him. Id. at 16:3-10. Capela requested pro per status on November 19, 2003. Id. at 19:18-23:4; Capela Decl. Supp. Mot. Term. Consent Decrees ("Capela Decl.") ¶¶ 2-4. He represented himself in his criminal case until April 2004. Id. at ¶ 4. After the court granted his request, the County transferred him from Elmwood to the Main Jail. Id. at ¶ 5. The County provided him with three legal pads, pencils, subpoena forms, and written information about his rights. Capela Depo. at 33:18-34:5. Capela asserts that he made the decision to represent himself because he believed that he would have access to a physical law library. Capela Decl. ¶ 6. He submitted eighteen requests to LRA. Williams Reply Decl. ¶ 19. LRA responded with 827 pages of material. Id.

Capela's criminal trial began on March 31, 2004. Capela Decl. at ¶ 12. Capela claims that LRA prevented him from effectively researching jury instructions or how to subpoena a key defense witness. Id. at ¶¶ 13-16. In addition, he contends that LRA prevented him from successfully challenging a robbery charge which the district attorney improperly added after the preliminary hearing. Id. at ¶ 9. Overall, he filed thirteen motions and succeeded on one. Id. at ¶ 11(a)-(g). Capela alleges that his family hired an attorney to represent him in post-conviction matters because they realized that continued pro per representation would be futile. Id. at ¶ 17.

3. Lyons

A public defender represented Lyons from January to April 2004. Lyons Decl. Supp. Mot. Term. Consent Decrees ("Lyons Decl.") ¶ 3. From April to July 2004, Lyons represented himself. Id. at ¶ 4. Lyons claims that LRA responded to his requests in three to eight days. Id. at ¶ 6. He argues that this was problematic because he generally only received one week's notice of hearings in his case. Id. According to Lyons, LRA once replied so close to the filing deadline that he could not file a motion to strike an improper charge in time. Id. at ¶ 11. In addition, he contends that a court once rejected a sample Pitchess motion*fn9 that he had obtained from LRA as "incomplete." Id. at ¶ 10. Finally, he asserts that LRA enclosed its responses in unsealed envelopes, and often left them "out in the open." Id. at ¶ 7. Overall, he submitted thirty research requests and received 1,055 pages of material. Williams Reply Decl. ¶ 19. He filed approximately fourteen motions and succeeded on two. Lyons Decl. at ¶ 13(a)-(j). He asserts that he withdrew from pro per status in July 2004 because he realized that he could not properly defend himself. He contends that he then retained an attorney who entered a guilty plea against his wishes. Id. at ¶ 14.

4. Reyes

Reyes faced two drug-related charges and one charge of failure to register with a law enforcement agency. Reyes Depo. at 6:14-7:4. A public defender represented Reyes from September 2003 to December 2003. Reyes Decl. Supp. Mot. Term. Consent Decrees ("Reyes Decl.") ¶ 3. From December 2003 to May 2004, he represented himself in two criminal cases. Id. at ¶ 4. From February to May 2004, he represented himself in a third criminal case. Id. He claims that he decided to proceed pro per because he believed that he would have access to a physical law library. Id. at ¶ 5.

According to Reyes, "[u]sing LRA was difficult" because its response times ranged from a week to ten days. Id. at ¶ 8. In addition, Reyes asserts that, about five to seven times, LRA simply did not respond to requests. Id. at ¶ 9. Reyes states that the fact he faced multiple charges made using LRA more difficult. For example, he claims that LRA only permitted him to make three requests at a time. Id. at ¶ 19. He contends that it took six months to receive all of the California Penal Code sections with which he had been charged. Id.

Reyes asserts that LRA was responsible for his inability to obtain information about police reports and discovery. In addition, he claims that LRA hindered his ability to file (1) a motion to suppress evidence under California Penal Code section 1538.5, (2) a Pitchess motion, (3) a motion to hold a witness in contempt, (4) a motion for a continuance, (5) a motion to strike prior felony convictions, under California Penal Code section 1385, and (6) a motion to be released on his own recognizance. Id. at ¶¶ 10, 17, 21, 22. He submitted twenty-nine requests to LRA and received 1,501 pages of material. Williams Reply Decl. ¶ 19. He filed approximately twelve motions and succeeded on three. Id. at ¶ 13(a)-(j). He ultimately withdrew from pro per status and pled guilty to all of the counts against him. Reyes Decl. ¶¶ 28-29.

5. Golden

The County incarcerated Golden in the Main Jail from April 2004 to May 2005. Golden Decl. Supp. Opp. Mot. Term. Consent Decrees ("Golden Decl.") ¶ 2. Golden represented himself in a civil rights lawsuit against a parole officer for alleged false imprisonment in March 2004. Id. at ¶ 3. He also represented himself in his pending criminal case beginning in December 2004. Id. at ¶ 4. Golden's criminal trial began on January 19, 2005 and ended on January 27, 2005. RJN Ex. BBB.*fn10 He claims that he was not aware that LRA would expedite research requests during trial. Id. at ¶ 9. As a result, he asserts, he was not able to contest the district attorney's hearsay objection to a "critically, potentially exculpatory" report authored by an investigator. Id. at ¶ 9(a)-(b). He contends that he received "no response whatsoever" from LRA "[o]n at least three occasions." Id. at ¶ 10. According to Golden, LRA frequently refused to provide him with sources he needed, such as (1) a section from the Model Penal Code, (2) an article in the Harvard Law Review, (3) petitions for certiorari, (4) citing references to an unpublished case, and an excerpt from California Criminal Defense Practice. Golden Decl. ¶¶ 15-22. Overall, he filed approximately sixteen motions in his criminal case and succeeded on two. Id. at ¶ 14(a)-(o). He submitted 236 research requests to LRA and received 7,469 pages of material, including 356 cases, 368 statutes, 346 criminal packets, ten civil packets, twenty forms, and thirty-four memos. Id.

On January 21, 2005 Golden received an infraction for failing to wear his identification wristband and being disrespectful to an officer. Golden Decl. Ex. 22. He appealed. Golden Decl. Ex. 23. Golden claims that he did not know that he engaged in prohibited conduct because he never received a Rule Book. Golden Decl. ¶ 39. According to Golden, he met with Jose Hernandez ("Hernandez") from Friends Outside on the day of the hearing. Id. at ¶ 40. Golden asserts that he did not know that he was entitled to call witnesses until Hernandez told him. Id. at ¶¶ 41(a)-(b). Golden contends that he could have called witnesses who would have contradicted the officer's version of the events. Id. at ¶¶ 41(c)-(d). He alleges that Hernandez did not tell him that he could obtain a continuance to find these witnesses. Id. at ¶ 41(h). He also claims that the panel did not inform him of his rights to (1) call witnesses, (2) continue the hearing, (3) avoid self-incrimination, (4) cross-examine witnesses, and (5) present argument. Id. at ¶¶ 42(a)(i)-(v). The panel found Golden guilty and sentenced him to three days of disciplinary lockdown. Golden Decl. Ex. 22. He asserts that he never received a written rationale for the panel's decision. Golden Decl. ¶ 45.

6. Walker

Walker has "been in and out of the Mail Jail" since 1982. Walker Decl. Supp. Opp. Mot. Term. Consent Decrees ("Walker Decl.") ¶ 2. Walker claims that he used the Main Jail's law library to file eight civil rights lawsuits between 1991 and 1993. Id. at ¶¶ 3-4. According to Walker, the law library was open "24 hours a day, 7 days a week." Id. at ¶ 7. Walker asserts that prison authorities permitted him to use the library for two hours each day and "for up to six hours" every other day. Id. He claims that access to materials in hard copy was important because they contained indices and tables of contents, and "[a]s an inmate with no legal training, [he] simply would not know what cases or statutes to turn to without the aid" of such resources." Id. at ¶ 9. He estimates that a pleading that would have taken him one to two weeks to prepare using a law library takes about six months using LRA. Id. at ¶ 14. He also asserts that he finds LRA's disclaimers of the attorney-client relationship confusing. Id. He has submitted eighty-eight requests to LRA and received 4,561 pages of research materials, including eighty-six cases, 151 statutes, ninety-one criminal packets, twelve civil packets, ten forms, and seventeen memos. Williams Reply Decl. Ex. I.

Walker claims that he received an infraction for allowing another inmate use his pin number for pro per telephone calls. Walker Decl. ¶ 33. He contends that the DOC notified him of the infraction by letter. Id. at ¶ 33(a). He asserts that he met with the sergeant, who asked him how he wanted to plead. Id. at ¶ 33(b). According to Walker, at the time of this meeting, he did not know whether he had the right to present evidence at the hearing. Id. at ¶ 33(c). He also contends that prison staff once failed to provide him with access to his lay advocate within twenty four hours of the hearing, which forced the panel "to negate its guilty findings." Id. at ¶ 34. He alleges that the County did not allow him to present witnesses at his infraction hearings "[o]n numerous occasions." Id. at ¶ 35.

Walker also contends that the County failed to provide him with a complete copy of another infraction report dated January 17, 2005. Id. at ¶ 36. In addition, he asserts that the County failed to provide him with twenty-four hours notice of his hearing. Id. Walker appealed his infraction, noting these alleged problems. Walker Decl. Ex. H.

7. Bautista

Bautista has been an inmate in the Main Jail since June 17, 2004. Bautista Decl. Supp. Opp. Mot. Term. Consent Decrees ("Bautista Decl.") ¶ 2. He was also in DOC custody from August 2004 to January 2005 and April 2002 to January 2003. Id. at ¶ 3. He is currently representing himself in a criminal case and two civil rights cases. Id at ¶¶ 4, 7.

Bautista submitted 256 research requests and received 19,599 responsive pages. Williams Reply Decl. ¶ 19. He filed over thirty motions in his criminal case and at least partially succeeded on about eight. Id. at ¶¶ 6(a)-(x). In addition, he filed four motions in his civil rights cases and succeeded on three. Id. at ¶¶ 8(a)-(c). He claims that LRA responds in an average of seven days. Id. at ¶ 15. According to Bautista, LRA often takes longer to respond. When this occurs, he receives a "seven day" memo, indicating that LRA needs more time. Id. at ¶ 16. He also claims that LRA routinely fails to provide specific secondary sources and misinterprets his requests. Id. at ¶¶ 21(a)-(z), 22-23, 26-30.

Bautista contends that he received an infraction in 2004 for having an illegal radio in his cell. Id. at ¶ 33. According to Bautista, he met with Hernandez "for two minutes" before the hearing. Id. at ¶ 35. Bautista claims that the panel did not advise him of (1) the burden of proof, (2) his right against self-incrimination, (3) or his right to call witnesses or get a continuation. Id. at ¶ 37. He alleges that he was found guilty, but successfully appealed because the panel denied him "access to critical documents," witnesses, and twenty-four hours' notice of the hearing. Id. at ¶¶ 41-42.

II. ANALYSIS

A. The PLRA

The PLRA requires a court to terminate a consent decree unless it remains necessary to prevent violations of prisoners' constitutional rights:

(2) Immediate termination of prospective relief. In any civil action with respect to prison conditions, a defendant or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

(3) Limitation. Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.

18 U.S.C. § 3626(b)(2) & (b)(3) ("the termination provisions").

In Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000), the Ninth Circuit held that the termination provisions were constitutional if construed narrowly. Prisoners appealed orders terminating consent decrees in two cases: Gilmore and Thompson. First, the prisoners contended that the termination provisions violated the separation of powers doctrine. Because consent decrees are not just settlement contracts, but final judgments entered by Article III courts, the prisoners argued that Congress lacks the power to void them. The court avoided this "grave constitutional question" by focusing on the statute's definition of the term "consent decree." Id. at 1000-01. The court noted that the statute defined consent decree "exclusively in terms of the relief it provides; specifically, the statute states that '"consent decree" means any relief entered by the court that is based on whole or in part upon the consent . . . of the parties.'" Id. at 1001 (quoting 18 U.S.C. § 3626(g)(1)) (emphasis supplied by Gilmore). The court noted that while Congress cannot require an Article III court to set aside a final judgment, Congress "may set a new and retroactively applicable standard for obtaining relief from final judgments which impose forward-looking injunctive remedies." Id. at 1001. Thus, the court determined that the termination provisions "simply amend[ ] Rule 60(b)-the rule that otherwise governs courts' power to modify or terminate relief granted pursuant to a final judgment." Id. at 1003.*fn11 Under this "saving construction," the court explained, the termination provisions mandate that courts preserve any portion of a consent decree that remains "necessary to correct a current and ongoing violation of a federal right, so long as that relief is limited to enforcing the constitutional minimum." Id. at 1000.

The court then rejected the prisoners' argument that the termination provisions unconstitutionally prescribed a rule of decision*fn12 by "unconditionally direct[ing] federal courts to terminate prospective relief in prison condition cases decided prior to the [PLRA]." Id. at 1004-05. "[I]dentifying the degree to which the termination provisions deviate from the general standards for granting and modifying continuing decrees" reveals that they leave "room for adjudication" and "the exercise of traditional equity powers." Id. at 1005. The court noted that, in general, courts may only craft equitable remedies that "heel close to the identified violation." Id. However, consent decrees, "precisely because of their consensual nature, [may] provide more than the constitutional minimum." Id. The court concluded that the termination provisions did not prescribe a rule of decision because they merely required courts to strike any part of a consent decree that imposed obligations that the court could not have properly ordered on its own. Id. at 1006.

The court then examined whether the termination provisions prescribed a rule of decision with respect to the modification of prospective relief. Under existing law, the party seeking to alter a consent decree bears the burden of proving that circumstances have changed. Id. at 1007. The court drew several conclusions about the termination provisions:

First, nothing in the termination provisions can be said to shift the burden of proof from the party seeking to terminate the prospective relief. Second, . . . a district court cannot terminate prospective relief without determining whether the existing relief (in whole or in part) exceeds the constitutional minimum. And, consistent with § 3626(b)(3), a district court cannot terminate or refuse to grant prospective relief necessary to correct a current and ongoing violation, so long as the relief is tailored to the constitutional minimum . . . . If the existing relief qualifies for termination under § 3626(b)(2), but there is a current and ongoing violation, the district court will have to modify the relief to meet the Act's standards.

Id. at 1007-08. The court held that the termination provisions, read in that manner, "require real adjudication-the careful application of law to fact-not the wooden ratification of a legislatively prescribed conclusion," and were constitutional. Id. at 1008. However, the court refused to follow the statute's instruction to invalidate consent decrees that did not include findings that the relief was as narrow and unintrusive as possible. Id. at 1007 n.25. The court reasoned that because the law at the time of the consent decree did not require such findings, "relief which was in fact narrowly tailored would be subject to termination," and thus the statute would prescribe a rule of decision. Id. According to the court, the proper course was to inquire whether "the record, the court's decision ordering prospective relief, and relevant case law fairly disclose that the relief actually meets the § 3626(b)(2) narrow tailoring standard." Id.

Finally, the court applied the statute to Gilmore and Thompson and concluded that both courts erred by terminating the consent decrees. The court held that Gilmore improperly placed the onus on the prisoners to establish that the consent decree (1) did not "exceed[ ] the constitutional minimum" and (2) was necessary to correct "a current and ongoing violation of Federal right." Id. at 1008. The court also explained that Gilmore incorrectly terminated the consent decree based solely on the fact that it did not contain specific findings as to the narrowness of its remedy. Id. Instead, the district courtshould have "examine[d] the court record and relief granted by the [consent decree] to determine whether it was narrowly tailored and minimally intrusive." Id. Similarly, the district court in Thompson erred by (1) relying on the consent decree's lack of specific findings to hold that the decree was terminable and (2) not permitting the prisoners to offer evidence about current constitutional violations. Id. at 1009-10. The court reversed both decisions and remanded the cases for further proceedings.

1. The Burden of Proof Under § 3626(b)(2) and § 3626(b)(3) Under Gilmore, the County has the burden of proving that (1) the Access to the Courts Decree and the Amended Disciplinary Procedures Decree are terminable under § 3626(b)(2) because they exceed the constitutional minimum and (2) current prison conditions do not constitute a current and ongoing constitutional violation under § 3626(b)(3). See Gilmore, 220 F.3d at 1009. However, the County cites Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002) and Guajardo v. Texas Dept. of Criminal Justice, 363 F.3d 392 (5th Cir. 2004) (per curiam) for the proposition that "if a prisoner class seeks . . . prospective relief under [§] 3626(b)(3), the burden is on the prisoners." Rep. Mot. Term. Consent Decrees at 3:1-13. The court disagrees.

In Hallett, a district court entered a consent decree relating to a prison's health care policies. The decree provided that the court's jurisdiction would expire in January 1999. However, the decree also allowed the prisoners to apply to extend the court's jurisdiction. As January 1999 approached, the prisoners filed such a motion. The court determined that the prisoners would have to satisfy the PLRA to succeed. That same day, defendants filed a motion under § 3626 seeking to terminate the decree. After an evidentiary hearing, the court denied the prisoners' motion and granted defendants' motion. The Ninth Circuit affirmed. The court rejected the prisoners' argument that "the district court erred by requiring them to prove a 'current and ongoing violation' of their constitutional rights." Hallett, 296 F.3d at 743. Yet, contrary to the County's argument, the court did not do so on the ground that the prisoners had failed to meet their "burden" under the termination provisions. Instead, the court held that the prisoners had failed to meet their burden under § 3626(a)(1)(A): the provision that restricts the power of federal courts to grant prospective relief in the first instance. The court expressly declined to rule on whether the district court correctly granted defendants' motion to terminate the decree. See id. at 749 ("we need not examine whether the district court erred in its analysis of [d]efendants' motion to terminate" because "[t]he

[j]udgment expired by its own terms when the district court denied [p]laintiffs' motion to extend").

In Guajardo, the Fifth Circuit held that a district court correctly required prisoners "to demonstrate ongoing violations and that the relief is narrowly drawn" under § 3626(b)(3). Guajardo, 363 F.3d at 395. In the court's view, Hallett's "reasoning-placing the burden of proof under [§] 3626(b)(3) on the party opposing ...


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