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 Women

(NCW), brought this § 1983 action in the United States District

Court for the District of Nebraska, alleging, among other things, 1

that defendants, the Nebraska Department of Correctional Services

(DCS) and several DCS officials, violated their rights under the

equal protection clause and Title IX of the Education Amendments,

20 U.S.C. §§ 1681-1688, by failing to provide equal educational

opportunities for male and female Nebraska prisoners, and that

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 district court

issued an opinion in Klinger v. Nebraska Dep't of Correctional

Servs., 824 F. Supp. 1374 (D. Neb. 1993) (Klinger I), rev'd, 31

F.3d 727 (8th Cir. 1994) (Klinger II), cert. denied, 115 S. Ct.

1177 (1995), and certified certain questions to this court for

interlocutory review. On appeal in Klinger II, we reversed the

district court's finding of an equal protection violation and

remanded the case to the district court, which thereafter issued

three more opinions. Id., 887 F. Supp. 1281 (D. Neb. 1995)

(Klinger III); id., 902 F. Supp. 1036 (D. Neb. 1995) (Klinger IV);

id., 909 F. Supp. 1329 (D. Neb. 1995) (Klinger V). Following the
-4-

district court's entry of final judgment, the parties filed the

present appeal and cross-appeal. Plaintiffs appeal from the

district court's judgment in favor of defendants on plaintiffs'

Title IX claim. For reversal, plaintiffs argue that the district

court erroneously concluded that our decision in Klinger II

required judgment in favor of defendants on the Title IX claim.

Individual defendants Victor Lofgreen and Larry Tewes cross-appeal

from the district court's judgment in favor of plaintiffs on

plaintiffs' access-to-courts claim, for which defendants Lofgreen

and Tewes were held personally liable to pay $2.00 in nominal

damages and plaintiffs were awarded $40,642.44 in attorneys' fees

and expenses. For reversal, defendants Lofgreen and Tewes argue

that (1) plaintiffs failed to establish a constitutional violation

as a matter of law because there was no complete and systemic

denial of access or because plaintiffs suffered no actual injury,

(2) they are protected by qualified immunity from personal

liability for damages, and (3) the award of attorneys' fees and

expenses is unreasonable under Farrar v. Hobby, 506 U.S. 103

(1992). Upon careful review and for the reasons set forth below,

we now affirm the district court's judgment in favor of defendants

on plaintiffs' Title IX claim, reverse the district court's

judgment 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 1380-86,

and are partially and more briefly summarized in the remaining

opinions cited above. For purposes of this appeal, the following

is a summary of the procedural history of this case. In 1988, four

NCW inmates, acting pro se, initiated this § 1983 action. The

district court appointed counsel and certified the plaintiff class,

which includes all persons incarcerated at NCW on or after

January 1, 1988. NCW is the only Nebraska prison for women;
 DCS also runs two co-ed work release centers which are not

enclosed secured prisons and which the district court determined

were not relevant to the issues in this litigation. See Klinger 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 educational

and vocational training opportunities at NCW were inferior to those

of male inmates at the Nebraska State Penitentiary (NSP).

Consistent with plaintiffs' limited factual allegations, the

district court confined plaintiffs' equal protection and Title IX

claims to a comparison between NCW and NSP. Klinger I, 824

F. Supp. at 1388 & n.14. Plaintiffs also alleged, among other

things, that defendants had failed to provide NCW inmates with an

adequate law library or assistance from persons trained in the law.

After the district court granted partial summary judgment to

defendants, the case proceeded to trial, which the district court

had bifurcated into a liability phase and a remedial phase.

Following a four-week trial on liability issues, the district court

concluded that plaintiffs had proven an equal protection violation,

a Title IX violation, and a deprivation of their right of

meaningful access to the courts. Id. at 1466-69. The district

court found defendants Frank Gunter and Harold Clarke personally

liable for the equal protection and Title IX violations, id. at

1466, and defendants Lofgreen and Tewes personally liable for the

access-to-courts violation, notwithstanding their claims of

qualified immunity, id. at 1468-69.

Pursuant to 28 U.S.C. § 1292(b), the district court then

certified to this court three issues of law related to the equal

protection claim. On interlocutory appeal, this court reversed the

district court's finding of liability on the equal protection claim

and dismissed that claim. Klinger II, 31 F.3d at 734. This court

reasoned that "NSP and NCW are different institutions with
-6-

different inmates each operating with limited resources to fulfill

different specific needs. Thus, whether NCW lacks one program that

NSP has proves almost nothing." Id. at 732 (citation omitted).

"[C]omparing programs at NSP to those at NCW is like the proverbial

comparison of apples to oranges." Id. at 733. This court thus

concluded that plaintiffs' equal protection claim failed as a

matter of law because inmates at NCW and inmates at NSP are not

"similarly situated." Id. 

After the case was remanded to the district court, plaintiffs

sought permission to recharacterize their equal protection claims

as Title IX claims. Klinger III, 887 F. Supp. at 1285. The

district court instead sua sponte elected to reverse its earlier

finding of a Title IX violation. 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 protection

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 assessing

damages resulting from the access-to-courts violation. Following

a bench trial, the district court set forth findings of fact and

conclusions of law, Klinger IV, 902 F. Supp. at 1039-45, and

established a schedule for resolving 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 completely

and systematically denied meaningful access to the courts for the

time period prior to January 1989. 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

defendants Lofgreen or Tewes acted deliberately or with reckless

indifference to the rights of the general population prisoners, the

district court awarded only $1.00 in nominal damages. Id. at

1043-44. The district court separately found that segregation and
 After the parties filed their appeals, the Prison Litigation

Reform Act (PLRA) was signed into law. Defendants requested

permission to file supplemental briefs addressing the applicability

of the PLRA to the present case. Permission was granted. An

amicus brief on this issue was also filed by the State of Missouri

on behalf of numerous states which support defendants' position

regarding the applicability of the PLRA. In addition, plaintiffs

and defendants submitted letters to this court pursuant to

Rule 28(j) of the Federal Rules of Appellate Procedure, bringing to

our attention two recent Supreme Court decisions. Plaintiffs have

cited United States v. Virginia, 116 S. Ct. 2264 (1996), and

defendants have cited Lewis v. Casey, 116 S. Ct. 2174 (1996).

-7-

orientation inmates were also completely and systematically denied

meaningful access to the courts. Id. at 1044-45. The district

court reasoned that, although those inmates theoretically could

order law books, the privilege was meaningless because those

inmates were not provided any legal assistance or access to a law

library. Id. at 1045. The district court then awarded the

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 also

reaffirmed its earlier rejection of Lofgreen's and Tewes's

qualified immunity defense. Klinger IV, 902 F. Supp. at 1040

(citing Klinger I, 824 F. Supp. at 1469).

Following the parties' submission of briefs on the attorneys'

fees issue, the district court filed a written decision awarding

plaintiffs $37,084.92 in attorneys' fees and $3,557.52 in expenses.

Klinger V, 909 F. Supp. at 1342. The district court reasoned that,

notwithstanding plaintiffs' recovery of only $2.00 in nominal

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 timely

appealed, and defendants cross-appealed.3
 20 U.S.C. § 1681(a) provides:

No person in the United States shall, on the basis

of sex, be excluded from participation in, be

denied the benefits of, or be subjected to

discrimination under any education program or

activity receiving Federal financial assistance,

except that . . . [listing exceptions which do not

apply in the present case].

-8-

Discussion

Title IX claim

Plaintiffs argue that the district court erred when it sua

sponte reversed its finding of a violation under Title IX, 20

U.S.C. § 1681(a), upon concluding that such reversal was mandated 4

by our equal protection analysis in Klinger II. The district court

reasoned as follows.

Because the Court of Appeals has held as a matter of

law that "comparing programs at NSP to those at NCW is

like the proverbial comparison of apples to oranges,"

Klinger II, 31 F.3d at 733, the evidence in this case,

when reexamined in light of Klinger II, fails to

establish a Title IX violation. This is specifically

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 all other Nebraska prisons,

Klinger II, 31 F.3d at 729; Klinger I, 824 F. Supp. at

1384 n.6 & 1388 n.14; and (2) Plaintiffs do not claim

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 the

two prisons are virtually irrelevant because so many

variables affect the mix of programming that an

institution has." Klinger II, 31 F.3d at 733.

Therefore, since the plaintiffs have presented no other

relevant or persuasive evidence tending to prove a Title
 To the extent that exceptions are to be recognized, Congress

has specifically enumerated certain exemptions in 20 U.S.C.

§ 1681(a)(2)-(9). Notably, the statute does not exempt

correctional 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

educational opportunities in violation of Title IX "on

the basis of sex." 

Klinger III, 887 F. Supp. at 1286-87.

We agree with plaintiffs insofar as they assert that the

standard for finding a Title IX violation differs from the standard

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 standard is "equality" as compared with the equal protection

standard of "parity"), vacated on other grounds, 869 F.2d 948 (6th

Cir. 1989). In other words, plaintiffs are correct to assert that

their failure to prove an equal protection violation does not

preclude their Title IX claim as a matter of law. See, e.g.,

Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265 (6th Cir.

1994) (reversing grant of summary judgment for defendants on Title

IX claim but affirming summary judgment for defendants on similar

equal protection claim where facially neutral rule disparately

impacted boys' and girls' interscholastic athletic programs but

there was no evidence of discriminatory intent). We further agree

with plaintiffs' argument that the "similarly situated" requirement

applied in equal protection cases does not apply to Title IX

analyses. Title IX provides, in pertinent part: "No person in the

United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving

Federal financial assistance, except that [listing exceptions]."

20 U.S.C. § 1681(a). In our opinion, Congress has indicated, by 5
and 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 exemptions

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 was

"certainly aware" that non-discrimination statutes such as Title IX

"could result in administrative problems in many areas" and,

accordingly, some exceptions were made in 20 U.S.C. § 1687(a)(1)-

(9); under these circumstances, a court cannot impose a special

exception for correctional institutions), vacated on other grounds,

869 F.2d 948 (6th Cir. 1989).

 Accordingly, we disagree with the D.C. Circuit's assumption in

Women Prisoners v. District of Columbia, 93 F.3d 910, 927 (D.C.

Cir. 1996), that "the court's Title IX and equal protection

analyses both depend on findings that [female prisoners and male

prisoners to whom they were compared] were similarly situated." 

-10-

its enactment of § 1681(a) and by the specific language employed

therein, that female and male participants within a given

federally-funded education program or activity are presumed

similarly situated for purposes of being entitled to equal

educational opportunities within that program or activity. Because

Title IX is only concerned with conditions of gender discrimination

and inequality within federally-funded educational programs or

activities, the question of whether males, as a group, are

otherwise similarly situated to females, as a group, need not be

considered in this narrow context.6

 

Nevertheless, we disagree with plaintiffs' assertion that, in

the 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 or

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 chapter, the term "program

or activity" and "program" mean all of the operations

of --

 (1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of

a local government; or

 (B) the entity of such State or local government

that distributes such assistance and each such

department or agency (and each other State or local

government entity) to which the assistance is

extended, in the case of assistance to a State or

local government; 

. . . .

any part of which is extended Federal financial

assistance, except that [stating an exception that does

not apply in the present case].

The legislative history of § 1687 contains the following

explanation:

For education institutions, the bill provides that

where federal aid is extended anywhere within a college,

university, or public system of higher education, the

entire institution or system is covered. If federal aid

is extended anywhere in an elementary or secondary school

system, the entire system is covered.

For State and local governments, only the department

or agency which receives the aid is covered. Where an

entity of state or local government receives federal aid

and distributes it to another department or agency, both

entities are covered. 

. . . .

For other entities established by two or more of the

above-described entities, the entire entity is covered if

it receives any federal aid.

S. Rep. No. 100-64, 100th Cong., 2d Sess. 4 (1988), reprinted in

1988 U.S.C.C.A.A.N. (Legislative History) 3, 6 (summary of the

bill). In other words, the purpose of § 1687 was "to make clear
 The legislation was deemed to reverse the Supreme Court's

decision in Grove City College v. Bell, 465 U.S. 555 (1984), which

had narrowed Title IX's application to only those specific

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 in 1988 U.S.C.C.A.N. (Legislative History) 3, 7-8

& 13-18.

-12-

that discrimination is prohibited throughout entire agencies or

institutions if any part receives Federal financial assistance."

Id. 

7

In the present case, the subset of Nebraska prisons comprised

of NCW and NSP, clearly does not constitute a "program or activity"

within the meaning of § 1687. The Nebraska prison system as a

whole, however, does qualify as a "program or activity" within the

statutory definition. See 20 U.S.C. § 1687(1)(A) (the term

"program or activity" means "all of the operations of . . . a

department, agency, special purpose district, or other

instrumentality of a State or of a local government" which receives

federal funds). It is undisputed that DCS is the recipient of

federal funds. See Klinger I, 824 F. Supp. at 1432 (noting

parties' stipulation).

It is beyond controversy that male and female prisoners may

lawfully be segregated into separate institutions within a prison

system. Gender-based prisoner segregation and segregation based

upon prisoners' security levels are common and necessary practices.

When considering single-sex prisons, the only logical and workable

application of the definition of "program or activity" under Title

IX requires comparison of educational opportunities for female and

male prisoners within the entire system of institutions operated by

a state's federally-funded correctional department or agency,

taking into account the objective differences between the male and

female prison populations and such penological and security

considerations as are necessary to accommodate in this unique
 In addition, co-ed institutions may not discriminate on the

basis of sex in providing educational opportunities to inmates

within a given institution. 

-13-

context. See Jeldness v. Pearce, 30 F.3d at 1228-29 (taking into 8

consideration differences between circumstances of female and male

prison populations in Oregon prison system and holding that

"[a]lthough the programs need not be identical in number or

content, women must have reasonable opportunities for similar

studies and must have an equal opportunity to participate in

programs of comparable quality"). This is not to say that no

comparison can be made, consistent with Title IX, where there are

significant differences between male and female prison populations

within a state's correctional system, such as unequal population

sizes and lengths of stay. Rather, equal opportunities must be

afforded consistent with those differences. See id. Because

plaintiffs' comparison of the educational opportunities at NCW to

those at NSP fails to provide a meaningful comparison of

educational opportunities for male and female prisoners in the

Nebraska prison system as a whole, the district court correctly

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 Lofgreen and Tewes argue that the

district court erred in holding that plaintiffs had been denied

meaningful access to the courts during the period of January 1988

to January 1989. They refer to the Supreme Court's 1977 landmark

decision in Bounds v. Smith, which essentially held that a state

could afford prisoners meaningful access to the courts by providing

either access to an adequate law library or adequate assistance

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 until January 1989. The issue in this

case focuses on plaintiffs' access to an adequate law library.

Describing the purported law library as "a disorganized pile of

books stored in a small room," the district court held that "the

NCW law library at all pertinent times was so disorganized that the

condition of the law library amounted to a complete and systematic

denial of access to the courts under Bounds, even though the

general population inmates at NCW had physical access to the

library." Klinger IV, 902 F. Supp. at 1043. Thus, the district

court found a constitutional violation notwithstanding plaintiffs'

inability to show that any NCW inmate was hindered or precluded

from engaging 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 court

explained "[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

liability purposes without a showing of actual injury or actual

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 court held that actual injury or prejudice must be shown if

the denial of access is not complete and systemic. They suggest

that there was at least some access to a law library because the

general population inmates had access 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.

2174 (1996), for the proposition that actual injury or prejudice

must be shown even if the denial of access is complete and

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 qualified immunity, the excessiveness of

the award of attorneys' fees and expenses, or the applicability of

the Prison Litigation Reform Act.

-15-

Upon careful review, we hold that plaintiffs' access-to-courts

claim fails as a matter of law under Lewis v. Casey, which was

decided after the district court rendered its decision in the

present case. In Lewis v. Casey, the Supreme Court held, based

upon principles of standing, that actual injury must be proven in

order to prevail on an access-to-courts claim. Id. at 2179-80

("[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 step further and demonstrate that the

alleged shortcomings in the library or legal assistance program

hindered his [or her] efforts to pursue a legal claim").

Accordingly, even though plaintiffs did show a complete and

systemic denial of access to a law library or legal assistance

prior to January 1989, plaintiffs' claim fails as a matter of law

because none of the inmates at NCW suffered actual injury or

prejudice as a result of that denial of access. See Klinger IV,

902 F. Supp. at 1043. We therefore reverse the district court's

judgment on the access-to-courts claim and vacate the award of

attorneys' fees and expenses.9

Conclusion

For the foregoing reasons, we affirm the district court's

judgment in favor of defendants on plaintiffs' Title IX claim,

reverse the district court's judgment in favor of plaintiffs on

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.