USCA1 Opinion

          June 27, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                           



                                 ____________________





        No. 94-1816



                           NICHOLAS A. PALMIGIANO, ET AL.,

                                Plaintiffs, Appellees,



                                          v.



                                BRUCE SUNDLUN, ET AL.,

                                Defendants, Appellees.



                                                
                                      __________



                                   KEITH A. WERNER,

                                Plaintiff, Appellant.

                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Selya and Boudin, Circuit Judges.
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                                 ____________________



            Keith A. Werner on brief pro se.
            _______________

            Alvin J. Bronstein, Mark J. Lopez,  and National Prison Project of
            __________________  _____________       __________________________

        the American Civil Liberties Union Foundation, on  brief for appellees
        _____________________________________________

        Nicholas A. Palmigiano, et al.

            Jeffrey  B. Pine,  Attorney  General, Maureen  G.  Glynn,  Special
            ________________                      __________________

        Assistant  Attorney  General, and  Anthony  A.  Cipriano, Chief  Legal
                                           _____________________

        Counsel,  Rhode  Island  Department   of  Corrections,  on  brief  for

        appellees Bruce Sundlun and Rhode Island Department of Corrections.



                                 ____________________



                                 ____________________





















                 Per  Curiam.     In  this   long-standing  class  action
                 ___________



            involving  prison conditions in Rhode Island, plaintiff Keith



            Werner  (a non-named  member of  the class)  appeals  from an



            order  denying his motion  to be  excluded from  a settlement



            agreement recently  adopted by the district court.  The class



            was  certified back  in 1976  as one  under Fed.  R.  Civ. P.



            23(b)(2).    As  plaintiff  himself  concedes,  there  is  no



            automatic  right to opt-out of  a Rule 23(b)(2)  class.  See,
                                                                     ___



            e.g., Ticor  Title Ins. Co. v.  Brown, 114 S. Ct.  1359, 1361
            ____  _____________________     _____



            (1994).   Even if the district court had discretion to permit



            a  class  member  to  opt-out  in  this  context, see,  e.g.,
                                                              ___   ____



            Crawford v. Honig, 37 F.3d 485,  487 n.2 (9th Cir. 1994), the
            ________    _____



            refusal to  do so cannot be  deemed error in a  case, such as



            this,  where only  equitable  relief has  been  sought.   See
                                                                      ___



            Palmigiano v. Garrahy,  443 F. Supp.  956, 959 (D.R.I.  1977)
            __________    _______



            ("No  damages are sought in this action.").  And the concerns



            underlying plaintiff's  request prove misplaced in any event.



            We decline to consider  the various constitutional challenges



            advanced  on appeal to the absence of an opt-out procedure in



            Rule 23(b)(2) proceedings,  inasmuch as  plaintiff failed  to



            raise  them below.   For  the same  reason, we  disregard his



            argument  that  the class  should  have  been decertified  or



            restructured at some point in the past.



                 Assuming arguendo that plaintiff  has standing to  raise
                          ________



            the issue, we also reject his perfunctory suggestion that the



            district court abused its discretion in adopting the  decree.



            Having reviewed the agreement in full, we find its provisions





































            to be "fair, adequate,  and reasonable."  Durrett  v. Housing
                                                      _______     _______



            Auth.  of City  of Providence,  896 F.2d  600, 604  (1st Cir.
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            1990); accord, e.g., Conservation Law Foundation v. Franklin,
                   ______  ____  ___________________________    ________



            989 F.2d 54,  58-59 (1st Cir.  1993).  We  likewise find  the



            other  criteria  enumerated in  Durrett  to  have been  fully
                                            _______



            satisfied.



                 The  judgment  is  affirmed.     Appellant's  motion  to
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            supplement his reply brief is denied.
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