* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 5 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RICKY TYREE,

Plaintiff - Appellant, and ROBERT M. WILLIAMS; UNITED STATES OF AMERICA,

Plaintiffs,

v. RON WARD, Director; DAN REYNOLDS, Warden of Oklahoma State Penitentiary; CALVINO S. MUSE, HUGH REED, WILLIAM EVANS, PHIL DESSAUER; JOE R. MANNING, JR., GREGORY H. HALL, and DANIEL BINTZ, Members of the Oklahoma Board of Corrections, Defendants - Appellees. No. 01-7037 (D.C. No. 72-CV-95-B) (E.D. Oklahoma)

ORDER AND JUDGMENT *-2-

Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Ricky Tyree appeals the district court’s order discharging the remaining injunctions in the Oklahoma prisoner clas s action suit initiated by former class representative Bobby Battle in 1972. Because plaintiff has not demonstrated that the district court erred in findi ng no ongoing constitutional violations, we affirm. This longstanding class action raised claims that the conditions in Oklahoma prisons were so inadequate that they violated the constitutional rights of the inmates incarcerated within the state system . The federal district court agreed that the conditions of confinement in the ea rly 1970’s violated the inmates’ constitutional rights and issued a series of injunctions requiring the Oklahoma Department of Corrections (DOC) to remedy the violations. See Battle v. Anderson , 376 F. Supp. 402 (E.D. Okla. 1974); Battle v. Anderson , 447 F. Supp. 516 (E.D. Okla. 1977). One of these i njunctions prohibited the DOC from any further racial discrimination and requiredthat future cell assignments be-3-

made without regard to race. Battle , 376 F. Supp. at 428. A second injunction required a minimum square footage per inmate and pr ohibited placing more than one prisoner in each cell. Battle , 447 F. Supp. at 526. Since then, there have been numerous proceedings in the case. In 1979, the State of Oklahoma presented to the dis trict court a plan to build several modern penal facilities to alleviate the overcrowding. Although these institutions were built according to plan, du ring the same years the State faced a tremendous increase in crime, and therefore , an increase in prisoners. In December 1981, the Oklahoma DOC declared a state of emergency regarding its prison population, and sought the court’s permi ssion to double cell inmates. In January 1982, the court granted permission for d ouble celling, and in April 1982, the court granted the DOC such authority inde finitely. In October 1982, after several evidentiary hearings , the district court found that the inmates were not currently housed under un constitutional conditions, despite the double celling. We affirmed, holding t hat the Supreme Court’s decision in Rhodes v. Chapman , 452 U.S. 337, 347 (1981), that double celling in the Ohio prison system did not violate the Eighth A mendment, controlled in our case based on the undisputed evidence that Oklahomaprisons equaled the Ohio space allowances and generally provided better cond itions than the Ohio system. See Battle v. Anderson , 708 F.2d 1523, 1533-36 (10th Cir. 1983).-4-

In December 1983, the district court held that beca use the prisons had been constitutional since October 1982, all of the Battle claims should be dismissed, but that the injunctions should remain in place. W e affirmed in part and reversed in part, holding that the court correctly dismissed all claims except for the racial discrimination claim. We specifically reiterated t hat the conditions of confinement in the Oklahoma system did not violate the Eighth Amendment under Rhodes

. See Battle v. Anderson , 788 F.2d 1421, 1427-29 (10th Cir. 1986). In 1996, Congress enacted the Prison Litigation Ref orm Act, Pub. L. No. 104-134, 110 Stat. 1321 (PLRA). The PLRA inclu ded a provision that prison conditions injunctions should be dismissed after tw o years unless the court found “current and ongoing” constitutional violations. 1 8 U.S.C. § 3626(b). Beginning in 1997, the parties began negotiating a settlementagreement which was submitted to the district court on June 29, 1999. On February 29, 2000, the district court entered an order dismissing all injunctions in the Battle litigation except those pertaining to overcrowding, conditions of confinement, medical care, and racial discrimination. On January 26, 2001, plaintiff-intervenor United St ates stipulated to the district court that, as a result of an agreement wi th defendants, there were no longer “any current and ongoing violations of the i nmates’ Federal rights on a systemic basis in regards to overcrowding, condit ions of confinement, and racial-5-

segregation and discrimination in the Oklahoma pris on system.” Supp. R., Doc. 1848 at 2. On that same date, the district co urt dissolved the injunction regarding the adequacy of medical care. On January30, after a hearing, the district court dissolved the remaining injunctions and dismissed the race discrimination claim, finding that there were no lo nger any “current and ongoing” constitutional violations. Plaintiff appealed the district court’s orders of J anuary 26 and January 30, 2001. Before we address the merits of plaintiff’s arguments, we must determine whether we have jurisdiction over this appeal. See Steel Co. v. Citizens for
a Better Env’t , 523 U.S. 83, 94-95 (1998) (holding the “requireme nt that jurisdiction be established as a threshold matter . . . is inflexible and without exception”) (quotation omitted). Defendants argue that plaintiff lacks standing to p ursue the appeal because he was not a named party or an intervenor in the un derlying case. The United States Supreme Court has held recently that “class members . . . who have objected in a timely manner to approval of the sett lement at the fairness hearing have the power to bring an appeal without first intervening.” Devlin v. Scardelletti , 122 S. Ct. 2005, 2013 (2002). The Court also cla rified that this was not a jurisdictional issue because plaintiff, as a member of the class bound by the-6-

decision, had a sufficient interest in the case to meet constitutional requirements. Id. at 2009. Here, plaintiff filed a “Motion for Immediate/Emerg ency Injunctive Order” in the district court on July 14, 2000, raising the issues of ongoing overcrowding, forced double celling of incompatible inmates, and inadequate medical services. Supp. R., Doc. 1765. Because plaintiff is pro se , we will construe this pleading as an objection to the impending closure of the class action. See Haines v.
Kerner , 404 U.S. 519, 520-21 (1972) (holding that pro se pleadings are to be construed liberally). Accordingly, plaintiff is en titled to appeal the district court’s rejection of his objections to the dismissa l of the injunctions. Plaintiff’s appellate brief raises a host of issues which were not addressed by the district court’s orders, and which should be raised, if at all, in a separate civil rights action. McNeil v. Guthrie , 945 F.2d 1163, 1166 n.4, 1167 (10th Cir. 1991) (explaining that class members may bring indi vidual lawsuits when their claims “are not being litigated within the boundari es of the class action”). Plaintiff’s primary argument is that the injunction s should not have been dismissed because the constitutional rights of Oklahoma prisoners are still being violated by the overcrowding, double celling, and f orced racial integration. Although plaintiff recites facts which he believes show ongoing violations of the inmates’ rights, he does not cite to any evidence i n the record, despite the-7-

numerous evidentiary hearings before the district c ourt regarding the Oklahoma DOC’s compliance with the injunctions. The anecdot al statements in plaintiff’s brief are not evidence, and are insufficient to sho w that the district court clearly erred in finding no ongoing constitutional violatio ns. Further, plaintiff’s arguments misconstrue the law. Although it is true that the district court initially held that double celli ng violated the inmates’ rights, the United States Supreme Court has since clarifiedthat double celling, in itself, does not violate the Eighth Amendment to the Constitution. Rhodes , 452 U.S. at 347-50. Plaintiff’s arguments that double celli ng violates state law or prison recommendations does not raise an argument under th e United States Constitution. Further, Oklahoma’s policy of randomcell assignments was an outcome of this lawsuit, which held that segregatedcell assignments constituted unacceptable racial discrimination. See Battle , 376 F. Supp. at 428 (ordering that cell assignments be made without regard to race). In addition to plaintiff’s appeal, we have received applications from the following inmates seeking to intervene in the appea l: William T. Alexander (#255275); Ronald A. Arms (#186723); Billy K. Beesl ey (#161023); Anthony W. Bradshaw (#205273); Dewayne Butler (#114112); Jimmi e W. Cargill (#152821); Thomas Lee Case (#392449); Hezekiah J. Colbert (#37 5192); Richard D. Colbert (#210758); Marco L. Cooper (#391118); Robert Cotner(#93780); Lloyd W.-8-

Culifer (#400841); Allen R. Curtis (#259393); Ralp h W. DeJarnett (#211871); Christopher Dries (#397540); Jessie D. Duffield (#9 8611); Christopher L. Fields (#245396); Billy D. Harmon (#98725); Carroll E. Huf f (#unknown); Mark W. Hurley (#261195); Loy L. Kerns, Jr. (#167798); Maur ice Lovelace (#unknown); Jackie Manis (#242979); Kim L. Mason (#125881); Den nis W. McDowell (#89233); Douglas R. Parker, Jr. (#387955); Ralph E . Phillips (#90140); Charles M. Pyron II (#227708); Kenneth W. Rakestraw(#247062); Rev. T.L. Rhine (#85629); Richard Rodriguez, Jr. (# 240364); Dezi Roman (#383728); Robert V. Ruback (#392709); Louis Ruffin(#unknown); Richard Dean Smith (#107954); Randy E. Strong (#188005); Bi lly Gene Sudderth (#219571); Robert T. Sullivan (#408398); Lincoln E. Taylor (#123272); Donald L. Townsley (#120136); Mickey R. Traylor (#3 75540); Lance E. Waggoner (#248111); Calvin Ray Westfield (#280941); James A. Wheeler (#233623); and Eugene M. Young (#376471). Because none of these inmates filed a timely notice of appeal, they are not parties before this court. Nor have they demonstrated entitlement to intervene pursuant to Federal Rule of Civil Procedure 24(a), because they have not shown that a federal statute confers an unconditional rig ht to intervene, or that plaintiff Tyree’s appeal is inadequate to represent the inter ests of the remaining inmates. Therefore the inmates’ motions to intervene are den ied.-9-

All outstanding motions are DENIED, and the judgment of the United States District Court for the Eastern District of O klahoma is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge