## United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-1241

____________ Cheryl Klinger; Linda Lange; * Gweniver Lay; Stacy Finn, * * Appellants, * * v. * * Department of Corrections; * Harold W. Clarke, Director; * Larry Tewes, Assistant * Director, Nebraska Department * of Correctional Services and * former Acting Superintendent * of Nebraska Center for Women; * Victor Lofgreen, Former * Superintendent of Nebraska * Center for Women; Larry Wayne, * Appeals from the United States Superintendent of Nebraska * District Court for the Center for Women; Judith * District of Nebraska Danielsen, Psychologist, * Nebraska Center for Women; * Margaret Wehland, Medical * Nurse, Nebraska Center for * Women, * * Appellees. *

*

------------------------------- * * State of Alabama; State of * California; State of Louisiana; * State of Maryland; State of * Minnesota; State of Missouri; * State of Nevada; State of New * Mexico; State of North Dakota; * State of South Dakota; State * of Vermont, State of Alaska, * * Amici Curiae. *-2-

____________ No. 96-1243

____________ Cheryl Klinger; Linda Lange; * Gweniver Lay; Stacy Finn, * * Appellees, * * v. * * Department of Corrections; * Harold W. Clarke, Director, * * Defendants. * * Larry Tewes, Assistant * Director, Nebraska Department * of Correctional Services and * former Acting Superintendent * of Nebraska Center for Women; * Victor Lofgreen, Former * Superintendent of Nebraska * Center for Women, * * Appellants, *

* Larry Wayne, Superintendent of * Nebraska Center for Women; * Judith Danielsen, Psychologist, * Nebraska Center for Women; * Margaret Wehland, Medical * Nurse, Nebraska Center for * Women, * * Appellees. *

*

------------------------------- * * State of Alabama; State of * California; State of Louisiana; * State of Maryland; State of * Minnesota; State of Missouri; * State of Nevada; State of New * Mexico; State of North Dakota; * State of South Dakota; State * of Vermont, State of Alaska, * * Amici Curiae. *The Honorable Richard G. Kopf, United States District Judge

for the District of Nebraska.
-3- ____________ Submitted: September 9, 1996 Filed: February 25, 1997

____________ Before McMILLIAN, MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

Women prisoners, incarcerated at the Nebraska Center for Wom en (NCW), brought this § 1983 action in the United States Distric t Court for the Di strict of Nebraska, alleging, among other things,

1 that defendants, the Nebraska Department of Correctional Services (DC S) and several DCS officials, violated their rights under th e equal protection clause and Title IX of the Education Amendments, 20 U.S .C. §§ 1681-1688, by failing to provide equal educationa l op portunities for male and female Nebraska prisoners, and tha t defendants violated their constitutional right of meaningful access to the courts by failing to provide an adequate law library at NCW. After holding a bench trial on liability issues, the distric t court issuedan opinion in Klinger v. Nebraska Dep't of Correctiona l Servs
. , 824 F. Supp. 1374 (D. Neb. 1993) ( Klinger I ), rev'd , 3 1 F.3d 727 (8th Cir. 1994) ( Klinger II ), cert. denied , 115 S. Ct

. 1177 (1995), and certified certain questions to this court fo r interlocutoryreview. On appeal in Klinger II , we reversed th e district court's finding of an equal protection violation an d
rem anded the case to the district court, which thereafter issue d thre e more opinions. Id. , 887 F. Supp. 1281 (D. Neb. 1995 ) ( Klinger III ); id. , 902 F. Sup p. 1036 (D. Neb. 1995) ( Klinger IV ); id. , 909 F. Supp. 1329 (D. Neb. 1995) ( Klinger V ). Following the-4-

distri ct court's entry of final judgment, the parties filed th e presen t appeal and cross-appeal. Plaintiffs appeal from th e dist rict court's judgment in favor of defendants on plaintiffs ' Title IX claim. For reversal, plaintiffs argue that the district
cour t erroneously concluded that our decision in Klinger I I required judgment in favor of defendants on the Title IX claim

. Individual defendants Victor L ofgreen and Larry Tewes cross-appeal fromt he district court's judgment in favor of plaintiffs o n plaintiffs' access-to-courts claim, for which defendants Lofgreen andTewes were held personally liable to pay $2.00 in nomina l damages and plaintiffs were awarded $40,642.44 in attorneys' fees and expenses. For reversal, defendants Lofgreen and Tewes argu e that (1) plaintiffs failed to establish a constitutional violation

as a matte r of law because there was no complete and systemi c denial of access or because plaintiffs suffered no actual injury, (2 ) they are protected by qualified immunity from persona l liabilityfor damages, and (3) the award of attorneys' fees an d expens es is unreasonable under Farrar v. Hobby , 506 U.S. 10 3 (1992). Upon careful review and for the reasons set forth below, we now affirm the district cou rt's judgment in favor of defendants
on p laintiffs' Title IX claim, reverse the district court' s judgme nt in favor of plaintiffs on their access-to-courts claim , and vacate the award of attorneys' fees and expenses.

Background
The background facts of this case are set forth in detail in the district court's opinion in Klinger I , 824 F. Supp. at 1 380-86, andare partially and more briefly summarized in the remainin g opinions cited above. For purposes of this appeal, the following is a summary of the procedural history of this case. In 198 8, four NC Winmates, acting pro se , initiated this § 1983 action. Th e district court appointed counsel and certified the plaintiff class, whi chincludes all persons incarcerated at NCW on or afte r January 1, 1988. NCW is the only Nebraska prison for women;DCS also runs two co-ed work release centers which are no t

enclos edsecured prisons and which the district court determine d were not relevant to the issues in this litigation. See Kli nger v. Nebraska Dep't of Correctional Servs. , 887 F. Supp. 1281, 1282 n.2 (D. Neb. 1995).
-5- accordingly, all women incarcerated in Nebraska are housed at NCW. 2 In their amended complaint, plaintiffs alleged that the educ ational and vocational training opportunities at NCW were inferior t o those of male inmates at the Nebraska State Penitentiary (NSP)

. Consistent with plaintiffs' limited factual allegations, th e district court confined plaintiffs' equal protection and Title IX clai ms to a comparison between NCW and NSP. Klinger I , 82 4 F. Supp. at 1388 & n.14. Plaintiffs also alleged, among othe r things, that defendants had failed to provide NCW inmates with an adequate law library or assistance from persons trained in t he law.
After the district court granted partial summary judgment to defendants, the case proceeded to trial, which the district court hadbifurcated into a liability phase and a remedial phase

. Following a four-week trial on liability issues, the distric t court concluded that plaintiffs had proven an equal protection vio lation,
a Title IX violation, and a deprivation of their right o f meani ngful access to the courts. Id. at 1466-69. The distric t court found defendants Frank Gunter and Harold Clarke personall y liable for the equal protection and Title IX violations, id. a t 1466, and defendants Lofgreen and Tewes personally liable for the access-to-courts violation, notwithstanding their claims o f qualified immunity, id. at 1468-69.

Pur suant to 28 U.S.C. § 1292(b), the district court the n certifie dto this court three issues of law related to the equa l protection claim. On interlocutory appeal, this court rever sed the district court's finding of liability on the equal protectio n claim and dismissed that claim. Kli nger II , 31 F.3d at 734. This court reasoned that "NSP and NCW are different institutions with-6-

different inmates each operati ng with limited resources to fulfill different specific needs. Thus, whether NCW lacks one progr am that NSP has proves almost nothing." Id. at 732 (citation omitted)

. "[C]omparing programs at NSP to those at NCW is like the pro verbial comparisonof apples to oranges." Id. at 733. This court thu s concludedthat plaintiffs' equal protection claim failed as a matter of law because inmates at NCW and inmates at NSP are no t "similarly situated." Id.

After the case was remanded to the district court, plaintiffs sought permission to recharacterize their equal protection claims

as Titl e IX claims. Klinger III , 887 F. Supp. at 1285. Th e dis trict court instead sua sponte elected to reverse its earlie r finding of a Title IX violatio n. Id. The district court reasoned that the holding of Klinger II destroyed the probative force of the evidence upon which it relied in deciding both the equal pro tection and the Title IX claims (i.e., the comparative inequality between NSP and NCW educational and vocational training programs). Id.

The case then proceeded to the second phase of the trial (the remedial phase) which, by this time, had been narrowed to as sessing damages resulting from the access-to-courts violation. Following
a bench trial, the district court set forth findings of fact an d conclusions of law, Klinger IV , 902 F. Supp. at 1039-45, an d established a schedule for res olving the issue of attorneys' fees, id. at 1045-46. On the access -to-courts issue, the district court found that the general inmate population at NCW had been com pletely and systematically denied meaningful access to the courts for the time period prior to January 1 989. Id. at 1043. However, because there was no evidence that anyone suffered any actual injury as a result of the deprivation, and there was no evidence to show that defend ants Lofgreen or Tewes acted deliberately or with reckles s indifference to the rights of the general population prisone rs, the di strict court awarded only $1.00 in nominal damages. Id. a t 1043-44. The district court s eparately found that segregation andAfter the parties filed their appeals, the Prison Litigation

ReformAct (PLRA) was signed into law. Defendants requeste d permission to file supplemental briefs addressing the applic ability of the PLRA to the present case. Permission was granted. A n amicus brief on this issue was also filed by the State of Missouri on b ehalf of numerous states which support defendants' positio n regarding the applicability of the PLRA. In addition, plaintiffs an ddefendants submitted letters to this court pursuant t o Rule 28(j) of the Federal Rules of Appellate Procedure, brin ging to our attention two recent Supre me Court decisions. Plaintiffs have cited United States v. Virginia , 116 S. Ct. 2264 (1996), an d defendants have cited Lewis v. Casey , 116 S. Ct. 2174 (1996).
-7- orientation inmates were also completely and systematically denied meani ngful access to the courts. Id. at 1044-45. The distric t
cour t reasoned that, although those inmates theoretically coul d order law books, the privilege was meaningless because thos e inmates were not provided any legal assistance or access to a law libr ary. Id. at 1045. The district court then awarded th e segregation and orientation inmates $1.00 in nominal damages. Id. Citing Bounds v. Smith , 430 U.S. 817 (1977), and Reutcke v. Dahm , 707 F. Supp. 1121 (D. Neb. 1988), the district court als o reaffirmed its earlier rejection of Lofgreen's and Tewes' s qualifiedimmunity defense. Klinger IV , 902 F. Supp. at 104 0 (citing Klinger I , 824 F. Supp. at 1469).
Following the parties' submiss ion of briefs on the attorneys' fee s issue, the district court filed a written decision awardin g plaintiffs $37,084.92 in attorneys' fees and $3,557.52 in expenses. Klinger V , 909 F. Supp. at 1342. The district court reasone d that, notwithstanding plaintiffs' recovery of only $2.00 in nomina l damages, their success was not merely technical or de minimis and therefore they were not precluded from recovering attorneys' fees under Farrar v. Hobby

. Klinger V , 909 F. Supp. at 1334

. Thereafter, final judgment was entered. Plaintiffs timel y appealed, and defendants cross-appealed. 320 U.S.C. § 1681(a) provides: No person in the United States shall, on the basis of sex, be excluded from participation in, b e de nied the benefits of, or be subjected t o discriminationunder any education program o r activityreceiving Federal financial assistance , except that . . . [listing exceptions which do not apply in the present case].
-8- Discussion

Title IX claim

Plaint iffs argue that the district court erred when it su a sponte reversed its finding of a violation under Title IX, 2 0 U.S.C. § 1681(a), upon concluding that such reversal was mandated 4 by our equal protection analysis in Klinger II . The distric t court reasoned as follows.

Because the Court of Appeals has held as a matter o f lawthat "comparing programs at NSP to those at NCW i s like the proverbial comparison of apples to oranges, " Klinger II , 31 F.3d at 733, the evidence in this case , wh enreexamined in light of Klinger II , fails t o esta blisha Title IX violation. This is specificall y true because (1) the evidence of discrimination , intentional or otherwise, and whether viewed in light of the Equal Protection Clause or Title IX, is largely (if not totally) dependent upon a factual comparison of NSP with NCW to the exclusion of a ll other Nebraska prisons, Klinger II , 31 F.3d at 729; Klinger I , 824 F. Supp. a t 1384 n.6 & 1388 n.14; and (2) Plaintiffs do not clai m that the allegedly inferior programs at NCW result from discriminatory funding, since Nebraska spends more money per capita at NCW than at any other adult prison in its system. Klinger II , 31 F.3d at 731 n.2; Klinger I , 824 F. Supp. at 1392-93. In sum, if NSP is not factually comparable to NCW, then"[d]ifferences between challenged programs at th e two pr isons are virtually irrelevant because so man y va riables affect the mix of programming that a n instit utionhas." Klinger II , 31 F.3d at 733

. Therefore, since the plaintiffs have presented no other relevant or persuasive evidenc e tending to prove a TitleTo the extent that exceptions are to be recognized, Congress

has s pecifically enumerated certain exemptions in 20 U.S.C

. § 16 81(a)(2)-(9). Notably, the statute does not exemp t corr ectional institutions, although it does expressly exempt -

- among other types of entities -- religious schools, military schools, fraternities, sororities, voluntary youth organizations,
-9- IX violation, it follows that the plaintiffs have failed in their burden to prove that the NCW women were denied ed ucational opportunities in violation of Title IX "o n the basis of sex."
Klinger III , 887 F. Supp. at 1286-87.

We agree with plaintiffs insofar as they assert that th e standard for finding a Title IX violation differs from the s tandard applicable to a constitutional equal protection claim. See, e.g. , Jeldness v. Pearce , 30 F.3d 1220, 1226-27 (9th Cir. 1994), citing Canterino v. Wilson , 546 F. Supp. 174, 210 (W.D. Ky. 1982) (Title IX sta ndard is "equality" as compared with the equal protectio n standard of "parity"), vacatedon other grounds , 869 F.2d 948 (6th Cir. 1989). In other words, p laintiffs are correct to assert that the ir failure to prove an equal protection violation does no t preclude their Title IX claim as a matter of law. See, e.g. , Horner v. Kentucky High Sch. A thletic Ass'n , 43 F.3d 265 (6th Cir. 1994) (reversing grant of summ ary judgment for defendants on Title IX claim but affirming summary judgment for defendants on similar equal protection claim where facially neutral rule disparatel y impa cted boys' and girls' interscholastic athletic programs bu t there was no evidence of discr iminatory intent). We further agree with plaintiffs' argument that the "similarly situated" requ irement appliedin equal protection cases does not apply to Title I X analyses. Title IX provides, in pertinent part: "No person in the UnitedStates shall, on the basis of sex, be excluded fro m participationin, be denied the benefits of, or be subjected t o di scriminationunder any education program or activity receivin g Federal financial assistance, except that [listing exceptions]. " 20 U.S.C. § 1681(a). In our opinion, Congress has indicated, by 5and beauty pageants. "When a statute lists specific exemptions ,

other exemptions are not to be judicially implied." Jeldness v

. Pearce , 30 F.3d 1220, 1225 (9th Cir. 1994) (referring to exe mptions in 20 U.S.C. § 1687(a)(3)-(9)); see also Canterino v. Wilson , 546 F. Supp. 174, 210 (W.D. Ky. 1982) (noting that Congress wa s "certainly aware" that non-discrimination statutes such as T itle IX "could result in administrative problems in many areas" and , accordingly, some exceptions were made in 20 U.S.C. § 1687(a)(1)- (9); u nder these circumstances, a court cannot impose a specia l exception for correctional institutions), vacated on other g rounds , 869 F.2d 948 (6th Cir. 1989). Accordingly, we disagree with the D.C. Circuit's assump tion in WomenPrisoners v. District of Columbia , 93 F.3d 910, 927 (D.C

. Cir. 1996), that "the court's Title IX and equal protectio n ana lyses both depend on findings that [female prisoners and mal e prisoners to whom they were compared] were similarly situated."
-10- its enactment of § 1681(a) and by the specific language employe d therein, that female and male participants within a give n federally-funded education program or activity are presume d si milarlysituated for purposes of being entitled to equa l educational opportunities within that program or activity. Because Title IX is only concerned with conditions of gender discrim ination andinequality within federally-funded educational programs o r act ivities, the question of whether males, as a group, ar e otherwise similarly situated to females, as a group, need not b e considered in this narrow context. 6

Nevertheless, we disagree with plaintiffs' assertion that, in th e present case, they may properly assert a Title IX claim by comparing educational opportunities available to female prisoners at NCW with educational opportunities available to male prisoners only at NSP. Title IX prohibits gender-based inequality o r discrimination "under any education program or activity receiving Federal financial assistance." Title IX's definition of "program or activity," 20 U.S.C. § 1687, provides in pertinent part:-11- For the purposes of this chapt er, the term "program or a ctivity" and "program" mean all of the operation s of -- (1)(A) a department, agency, special purpos e district, or other instrumenta lity of a State or of a local government; or (B) the entity of such Stat e or local government that distributes such assistance and each suc h department or agency (and each other State or local government entity) to which the assistance i s ext ended, in the case of assistance to a State o r local government;

. . . .
an ypart of which is extended Federal financia l assistance, except that [stating an exception that does not apply in the present case].

The legislative history of § 1687 contains the followin g explanation:

For education institutions, the bill provides that where federal aid is extended anywhere within a college, univ ersity, or public system of higher education, th e entire institution or system i s covered. If federal aid is extended anywhere in an elementary or secondary schoo l system, the entire system is covered.
For State and local governments, only the departmen t or agency which receives the aid is covered. Where a n entity of state or local gover nment receives federal aid and distributes it to another department or agency, both entities are covered.

. . . . For other entities established by two or more of th e above-describedentities, the entire entity is covered i f it receives any federal aid.

S. Rep. No. 100-64, 100th Cong., 2d Sess. 4 (1988), reprinted i n 19 88 U.S.C.C.A.A.N. (Legislative History) 3, 6 (summary of th e bill). In other words, the purpose of § 1687 was "to make clearThe leg islation was deemed to reverse the Supreme Court' s

decision in Grove City College v. Bell , 465 U.S. 555 (1984), which ha dnarrowed Title IX's application to only those specifi c education programs and activities which directly received federal funds. See S. Rep. No. 100-64, 100th Cong., 2d Sess. 5-6 & 11-16 (1988), reprinted in1988 U.S.C.C.A.N. (Legislative History) 3, 7-8 & 13-18.
-12- that discrimination is prohibited throughout entire agencies o r in stitutions if any part receives Federal financial assistance. " Id. 7

In the present case, the subse t of Nebraska prisons comprised of NCW and NSP, clearly does not constitute a "program or ac tivity" within the meaning of § 1687. The Nebraska prison system as a whole, however, does qualify a s a "program or activity" within the statutorydefinition. See 20 U.S.C. § 1687(1)(A) (the ter m "programor activity" means "all of the operations of . . . a department, agency, special purpose district, or othe r instrumentality of a State or of a local government" which r eceives fe deral funds). It is undisputed that DCS is the recipient o f fede ral funds. See Klinger I , 824 F. Supp. at 1432 (notin g parties' stipulation).

It is beyond controversy that male and female prisoners ma y lawfully be segregated into separate institutions within a prison sy stem. Gender-based prisoner segregation and segregation base d upon prisoners' security levels are common and necessary pra ctices. When considering single-sex pr isons, the only logical and workable application of the definition of "program or activity" under Title IX requires comparison of educ ational opportunities for female and male prisoners within the entire system of institutions oper ated by
a state's federally-funded correctional department or agency , taking into account the object ive differences between the male and femal e prison populations and such penological and securit y considerations as are necessary to accommodate in this uniqueIn addition, co-ed institutions may not discriminate on th e

ba sis of sex in providing educational opportunities to inmate s within a given institution.
-13- context. See Je ldness v. Pearce , 30 F.3d at 1228-29 (taking into

8 consideration differences betw een circumstances of female and male pris onpopulations in Oregon prison system and holding tha t "[a]lthoughthe programs need not be identical in number o r content, women must have reasonable opportunities for simila r studie s and must have an equal opportunity to participate i n programs o f comparable quality"). This is not to say that n o comparison can be made, consistent with Title IX, where there are significant differences betwee n male and female prison populations within a state's correctional system, such as unequal populatio n sizes and lengths of stay. Rather, equal opportunities must b e aff orded consistent with those differences. See id. Becaus e plaintiffs' comparison of the educational opportunities at NCW to those at NSP fails to provide a meaningful comparison o f ed ucational opportunities for male and female prisoners in th e Nebras ka prison system as a whole, the district court correctl y concluded that plaintiffs' evidence was not sufficiently relevant or persuasive to prove a violation of Title IX. See Klinger III , 887 F . Supp. at 1287. We therefore affirm the district court' s judgment on the Title IX claim.

Access-to-courts claim

On cross-appeal, defendants Lo fgreen and Tewes argue that the distri ct court erred in holding that plaintiffs had been denie d meaningful access to the courts during the period of January 1988 to January 1989. They refer to the Supreme Court's 1977 landmark decisionin Bounds v. Smith , which essentially held that a stat e could afford prisoners meaningful access to the courts by pr oviding either access to an adequate law library or adequate assistanc e from persons trained in the law. 430 U.S. at 828. It is-14-

undisputed that NCW inmates were not provided any assistance from someone with legal training un til January 1989. The issue in this
case focuses on plaintiffs' access to an adequate law library

. Descri bing the purported law library as "a disorganized pile o f books st ored in a small room," the district court held that "th e NCW law library at all pertinent times was so disorganized t hat the condition of the law library a mounted to a complete and systematic denial of access to the courts under Bounds , even though th e genera l population inmates at NCW had physical access to th e librar y." Klinger IV , 902 F. Supp. at 1043. Thus, the distric t court found a constitutional v iolation notwithstanding plaintiffs' inabilityto show that any NCW inmate was hindered or preclude d fromeng aging in legal activity or suffered a monetary loss as a consequence of the deprivation. Id. at 1043-45. Citing Jones v. James , 38 F.3d 943, 945 (8th Cir. 1994), the district cour t explai ned "[a] complete and systematic denial of an inmate' s constitutional right of access to the courts is such a fundamental constitutional deprivation that it is injury in and of itself for liabil itypurposes without a showing of actual injury or actua l prejudice." Klinger IV , 902 F. Supp. at 1041.
Defendants Lofgreen and Tewes argue that the present case is more like Schrier v. Halford , 60 F.3d 1309 (8th Cir. 1995), where this cou rt held that actual injury or prejudice must be shown i f the deni al of access is not complete and systemic. They sugges t that t here was at least some access to a law library because th e general population inmates hadaccess to the "disorganized pile of books stored in a small room," and the segregation and orientation inmates could request books. Lofgreen and Tewes also rely on the Supreme Court's very recent decision in Lewis v. Casey , 116 S. Ct. 217 4 (1996), for the proposition that actual injury or prejudic e must be shown even if the denial of access is complete an d systemic.Because we hold that the district court erred in finding that

a constitutional access-to-courts violation had occurred, we need not address the issues of qual ified immunity, the excessiveness of the award of attorneys' fees a nd expenses, or the applicability of the Prison Litigation Reform Act.
-15- Upon careful review, we hold that plaintiffs' access-to-cour ts claim fails as a matter of law under Lewis v. Casey , which wa s dec idedafter the district court rendered its decision in th e prese nt case. In Lewis v. Casey , the Supreme Court held, base d upon principles of standing, that actual injury must be proven in order to prevail on an access-to-courts claim. Id. at 2179-8 0 ("[i ]nsofar as the right vindicated by Bounds is concerned , 'meaningful access to the courts is the touchstone' . . . and the inmate therefore must go one s tep further and demonstrate that the alle gedshortcomings in the library or legal assistance progra m hindered his [or her] efforts to pursue a legal claim")

. Acco rdingly, even though plaintiffs did show a complete an d systemic denial of access to a law library or legal assistanc e prior to January 1989, plaintiffs' claim fails as a matter of law because none of the inmates at NCW suffered actual injury o r prejud ice as a result of that denial of access. See Klinger IV , 902 F. S upp. at 1043. We therefore reverse the district court' s judgment on the access-to-courts claim and vacate the award o f attorneys' fees and expenses. 9

Conclusion

Fo r the foregoing reasons, we affirm the district court' s judgment in favor of defendants on plaintiffs' Title IX claim , revers e the district court's judgment in favor of plaintiffs o n their access-to-courts claim, and vacate the award of attorneys ' fees and expenses.-16-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.