PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- FILED No. 97-6773 U.S. COURT OF APPEALS -------------------------------------------- ELEVENTH CIRCUIT 09/28/98 D. C. Docket No. CV-79-G-301-NW THOMAS K. KAHN CLERK DONALD PARRISH, on behalf of themselves and all others similarly situated, GARY BEASLEY, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Appellees, versus

ALABAMA DEPARTMENT OF CORRECTIONS, JOE S. HOPPER, Commissioner of the Alabama Department of Corrections, Defendants-Appellants.

---------------------------------------------------------------- Appeal from the United States District Court for the Northern District of Alabama ---------------------------------------------------------------- (September 28, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District Judge.

_______________ * Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida, sitting by designation.

EDMONDSON, Circuit Judge:

The Alabama Department of

Corrections appeals the refusal of the

district court to terminate an

injunction. We reverse and remand to

the district court with instructions to

terminate the injunction.

BACKGROUND

The District Court for the Northern

District of Alabama entered an

injunction in 1982 prohibiting Alabama

and Lauderdale County from housing

state prisoners in the Lauderdale County

Jail for more than 30 days. The district

court entered the injunction to alleviate

overcrowding (and associated health

problems) at the jail. In 1991, the

Governor of Alabama and the Alabama

Department of Corrections

Commissioner were held in contempt for

violating the injunction. In the light of

a second contempt order in 1993,

Lauderdale County constructed a new jail.

The County finished the new jail two

years ago. In 1997, the Alabama

Department of Corrections moved to

terminate the injunction under the

Prison Litigation Reform Act, 18 U.S.C.A. §

3626 (West Supp. 1998) (“PLRA”). Lauderdale

County opposed the motion. The district

court denied the motion, and the

Alabama Department of Corrections

appeals.

DISCUSSION

An injunction directed to jail

conditions must be terminated if the

injunction was issued in the absence of a

finding by the district court that the

injunction (a) is narrowly drawn, (b)

extends no further than necessary to

correct the violation of a federal right,

and (c) is the least intrusive means

necessary to correct the violation of a

federal right. See id. § 3626(b)(2). An

injunction shall not terminate, however,

if the court accurately makes written

findings, based on the record, that the

injunction “remains necessary to

correct a current and ongoing violation

of the Federal right” and meets the three

criteria in Section 3626(b)(2). See id. §

3626 (b)(3).

The parties dispute whether a “current

and ongoing” violation of a federal right exists at the Lauderdale County Jail. If

The district court made written findings under Section 3626(b)(3) that the 1982 injunction was narrowly drawn, extended no further than necessary to prevent the jail from being overcrowded, and was the least intrusive means to correct and to prevent overcrowding (and related problems) at the Lauderdale County Jail. Alabama does not contest these findings; so we accept them. We stress, however, that overcrowding is not necessarily a no violation exists, then the 1982

injunction must be terminated. After

examining the record, we conclude the

evidence is insufficient to prove that a

current and ongoing violation of a

federal right exists in the County’s jail.

Therefore, the injunction must be

terminated.

violation of a federal right. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981). The only issue truly before us is whether the district court’s other written findings demonstrate a current and ongoing violation.

Alabama argues that because no

constitutional violations exist at the

jail right now, no “current and ongoing”

violation can exist. This interpretation

may be a correct view of what Congress intended. But, Alabama’s

Congress’s intention in enacting the PLRA looks to be in line with the Supreme Court’s view on the involvement of the federal courts in state prison systems.

Both Congress and the Court suggest a reduced role for federal courts. When confronted with state prison litigation, the Supreme Court has written that “involvement of federal courts in the day-to-day management of prisons [has interpretation might be an incorrect

interpretation of “current and ongoing”

because it could blind courts to violations

of federal rights that a court might

reasonably expect to recur soon if the

led to] squandering judicial resources with little offsetting benefit to anyone. . . . [F]ederal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Sandin v. Conner, 515 U.S. 472, 482 (1995); see H.R. Conf. Rep. 104-378 (1995) (stating that Congress designed Section 3626 to ensure that prospective relief is the “minimum necessary to correct the violation of a federal right”) (emphasis added). injunction is dissolved. This

interpretation may possibly also give

too little weight to the prospective nature of the word “ongoing.”

The County has advanced a broader

interpretation of “current and

ongoing.” In the district court, the

The phrase “current and ongoing” was originally enacted as “current or ongoing.” The phrase was amended in 1997 to its present form. See Department of Justice Appropriations Act, 1998, Pub. L. No. 105-119, § 123(a)(2), 111 Stat. 2440, 2470 (1997) (emphasis added).

County contended that “current and

ongoing” means a substantial and very

real danger that a violation of rights

will follow the termination of the

injunction. See James v. Lash, 949 F. Supp. 691, 693 (N.D. Ind. 1996) (construing

“current and ongoing” in PLRA). We need

not decide, however, precisely what

“current and ongoing” means. Even if

we accept -- for argument’s sake -- the

County’s “substantial and very real

danger” standard, the County cannot

prevail in this case.

Whether there is a substantial and

very real danger of a violation of a

federal right recurring soon at the

Lauderdale County Jail in the absence of

an injunction may be a mixed question

of law and fact. But we need not decide

whether it is a mixed question or a

question of fact only. Even if we review

for clear error, we do see reversible

error.

The district court seemed to rely on

two pieces of evidence -- a newspaper

article and the two contempt orders -- to

find that constitutional violations are

likely to recur if the injunction is lifted.

Relying on these two things to find there

is a current and ongoing violation of a

federal right produced clear error.

First, the court -- in a footnote added

by amendment to the district court

opinion -- quoted a newspaper report

that included the following statement:

“Prisons Commissioner Joe Hopper said

Monday state prisoners would continue

to back up in county jails until the

Legislature properly funds the prison system.” We question the usefulness of

Neither party -- by motion or by offering the article into evidence at the hearing -- seems to have supplied the newspaper article to the district court. this report of Joe Hopper’s statement in

determining whether a violation of the

Federal Constitution is likely to result if

the injunction is lifted. See Cofield v.

Alabama Pub. Serv. Comm’n, 936 F.2d 512,

517 (11th Cir. 1991) (concluding that district

court erred when it took judicial notice of

newspaper article as proof of fact

asserted in article). The report does not

We assume, therefore, the district court amended its opinion to take judicial notice of the newspaper article. suggest that state prisoners would “back

up” to the point where the Constitution

would be violated. In addition, even if

we assume the newspaper is an accurate

report of what was said, statements to

the press are often made for reasons

that have no relation to the true intent

of the speaking party. Moreover, to the

extent the report indicates

disagreement between Alabama’s

Legislative and Executive Branches that

might, someday, cause overcrowding, this

kind of internal conflict about

policymaking only further convinces us

that a federal court should not interfere

now. See Turner v. Safley, 482 U.S. 78, 85

(1987) (stressing deference to state

executive and legislative branches in

state prison system litigation).

Second, the district court relied on the

1991 and 1993 contempt orders to suggest

that overcrowding due to the presence of

state prisoners in county jails will recur.

That the contempt findings were based

on violations of a federal right is,

however, not clear. Violating the 1982

injunction does not necessarily mean

that a federal right was violated. See

Dolihite v. Maughon, 74 F.3d 1027, 1055

(11th Cir. 1996) (failing to meet

requirements of consent decree was no

per se constitutional violation); Green v.

McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986)

(“[R]emedial decrees are the means by

which unconstitutional conditions are

corrected but they do not create or

enlarge constitutional rights”).

The pertinent injunction in this case

is more than fifteen years old. The

Supreme Court has cautioned that

injunctions are not to stay in place “in

perpetuity.” Board of Educ. v. Dowell, 498 5 U.S. 237, 248 (1991). To follow the Court’s

Dowell makes this statement for consent decrees, but consent decrees and guidance, earlier violations -- made right

in the meantime -- of the injunction

must eventually be forgiven. We conclude

that, by now, the past acts of contempt

cannot count for much: five years have

elapsed since the last contempt finding,

a new jail has been constructed, no

current constitutional violations exist,

injunctions are interchangeable in this context. See System Fed’n No. 91 v. Wright, 364 U.S. 642, 650-51 (1961). and the persons then held in contempt

have been replaced.

Other considerations aid our

conclusion that the record does not

support the existence of a substantial

and very real danger of violating a

federal right at the Lauderdale County

Jail. Most important, no one even

claims the jail is presently overcrowded.

Since the new jail opened, an average of

130 prisoners per day are held in the jail.

The jail has a 153 prisoner capacity. We

also note that between 1 July 1997 and 6

July 1997 (the only period for which we

have records) the jail held between 78 and

83 inmates. And, a nurse and doctor are

now under contract to visit the jail regularly.

By the way, a class-action lawsuit is pending in Montgomery County Circuit Court addressing jail issues such as overcrowding. The certified class consists of “all counties and sheriffs in the State of Alabama which do not currently benefit from court orders enjoining [the Department of Corrections] from From the record made in the district

court, we conclude, as a matter of law,

that no substantial and very real

retaining state inmates in county jails.” Therefore, dissolving the injunction will let Alabama deal with its many prison and jail crowding issues in one lawsuit, rather than confront multiple -- and potentially conflicting -- district court orders. See generally Chairs v. Burgess, 143 F.3d 1432, 1438 (11th Cir. 1998) (noting existence and significance of potentially conflicting consent decrees regulating Alabama prisons). And, the same state lawsuit will allow the County to litigate without the constraints imposed by the PLRA. The existence of this state court litigation is, however, immaterial to today’s result.

danger of a federal right being violated

has been proved for the Lauderdale

County Jail. We must reverse the

district court’s order because the evidence

will not sustain it.

The district court order is REVERSED

and the case is REMANDED with

instructions to terminate the 1982

injunction.

REVERSED and REMANDED.