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United States Court of Appeals,

Fifth Circuit.

No. 94-40380.

Jihaad A.M.E. SAAHIR, f/k/a Jehad Abdullah Shabazz, PlaintiffAppellee,

v.

W.J. ESTELLE, Jr., Director, Texas Department of Criminal

Justice, Institutional Division, et al., Defendants-Appellants.

March 20, 1995.

Appeal from the United States District Court for the Eastern

District of Texas.

Before KING, GARWOOD and BENAVIDES, Circuit Judges.

PER CURIAM:

Officials of the State of Texas appeal an order enforcing a

settlement agreement previously entered in an action brought under

42 U.S.C. § 1983. Finding that the district court lacked subject

matter jurisdiction because of the operation of the immunity

afforded a State under the Eleventh Amendment of the United States

Constitution, we reverse.

FACTS AND PROCEDURAL HISTORY

Jihaad A.M.E. Saahir ("Saahir"), formerly known as Jehad

Abdullah Shabazz, a/k/a James Loggins, filed a motion for civil

contempt against W.J. Estelle and several others (collectively

"defendants") seeking enforcement of a settlement agreement entered

into between Saahir and the defendants in a civil rights action

previously filed by Saahir. In the previous lawsuit filed under 42

U.S.C. § 1983, Saahir sued W.J. Estelle, then director of the Texas

Department of Corrections ("TDC") (now known as the Texas
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Department of Criminal Justice) and various other TDC employees,

alleging a violation of his First Amendment right to practice his

religion because the defendants refused to recognize his Islamic

name and refused to allow him to have a cassette-tape player and

religious tapes to learn the Arabic language.

Saahir and the defendants entered into a settlement agreement

in which the defendants agreed to allow Saahir to own, use, and

possess a cassette-tape player and tapes for listening purposes

only. The agreement included the following language: "The

plaintiff shall order the tapes he desires, through the Texas

Department of Corrections' Islamic Chaplain, who will facilitate

and administer the order and delivery of the tapes to plaintiff."

The district court entered a consent decree approving and

incorporating the settlement agreement and dismissed the case. In

the present lawsuit, Saahir filed a motion for civil contempt

against the defendants, alleging that they violated the settlement

agreement by confiscating 39 of his non-religious tapes. He

alleged that the settlement agreement did not purport to limit his

possession of tapes to religious tapes only. The defendants

admitted that 35 non-religious tapes were confiscated. They

asserted that the clear spirit of the settlement agreement was to

allow Saahir to listen to religious tapes. The defendants also

questioned the district court's jurisdiction over Saahir's motion

for contempt, noting that there was no indication that the court

intended to maintain continuing jurisdiction over the lawsuit. The

district court granted Saahir's motion for contempt. The court
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held that the terms of the settlement agreement were not limited to

religious tapes and that the defendants should return the tapes or

reimburse Saahir. The defendants appeal.

LAW AND ARGUMENT

 The defendants argue that the district court lacked subject

matter jurisdiction to order them to conform their conduct to the

settlement agreement because of their Eleventh Amendment immunity.

They cite Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and Lelsz v. Kavanagh, 807

F.2d 1243 (5th Cir.), cert. dismissed, 483 U.S. 1057, 108 S.Ct. 44,

97 L.Ed.2d 821 (1987), as authority for their argument that the

district court did not have jurisdiction to enforce the settlement

agreement beyond the extent required to protect Saahir's

constitutional rights.

The Eleventh Amendment generally provides immunity to a State

against suits in federal court by a citizen of the State against

the State or a state agency or department. Pennhurst, 465 U.S. at

97-99, 104 S.Ct. at 906-07. When only state officials have been

sued, the suit is barred if "the [S]tate is the real, substantial

party in interest." Id. at 101, 104 S.Ct. at 908. The Eleventh

Amendment is an explicit jurisdictional limitation on the judicial

power of the federal courts. Id. at 119-21, 104 S.Ct. at 918-19.

The Supreme Court carved out an exception to Eleventh Amendment

immunity in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

714 (1908), which held that acts by state officials contrary to

federal law cannot have been authorized by the State and that suits
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seeking to enjoin such acts are not suits against the State, id. at

160, 28 S.Ct. at 454. Thus, a suit challenging the

constitutionality of a state official's action is not one against

the State and is not barred by the Eleventh Amendment. Pennhurst,

465 U.S. at 102-03, 104 S.Ct. at 909.

In Pennhurst, the Supreme Court held that the federal courts

did not have jurisdiction to order state officials to conform their

conduct to state law. Id. at 124-25, 104 S.Ct. at 921. In Lelsz,

the Fifth Circuit applied Pennhurst, holding that the district

court lacked jurisdiction to enforce a consent decree against the

State to the extent that the relief ordered in the decree was based

on state law. Lelsz, 807 F.2d at 1246-47. We stated that the

court did not have jurisdiction to enforce the consent decree

beyond the guarantees contained in the Constitution because the

only legitimate basis for federal court intervention consistent

with the Eleventh Amendment was the vindication of federal rights.

Id. at 1252.

 Here, enforcing the provision that allows Saahir the

non-religious tapes would not require the federal court to enforce

state law against the State, as there is no state law giving

prisoners the right to listen to musical tapes. Thus, Pennhurst 's

central concern of having "a federal court instruct[ ] state

officials on how to conform their conduct to state law," Pennhurst,

465 U.S. at 106, 104 S.Ct. at 911, is not implicated here.

Nonetheless, enforcing the provision would not be required by any

federal or constitutional law, as we fail to discern any First
 

1A similar argument was adopted in Ibarra v. Texas

Employment Comm'n, 823 F.2d 873 (5th Cir.1987), where we did not

preclude the district court from approving a consent decree in

which Texas state law was interpreted because the plaintiffs

brought suit under 42 U.S.C. § 1983, id. at 877 (we reversed the

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Amendment protections except as to the religious tapes. Because

"the only legitimate basis for federal court intervention,

consistent with the Eleventh Amendment is the vindication of

federal rights," Lelsz, 807 F.2d at 1252, the federal courts have

no jurisdiction to enforce the provision as it relates to the

non-religious tapes. Although the State of Texas has evidently not

legislated on this particular issue, whether a prisoner has a right

to listen to musical tapes is an issue that falls in the area of

state governance and not that of the federal government. "If a

federal court remedy unfounded in federal law intrudes into the

governance of matters otherwise presided over by the states, no

federal right has been vindicated." Id.

 Saahir responds by arguing that the consent decree is based

on federal law. Saahir's complaint did not claim to have any basis

in state law, but rested on 42 U.S.C. § 1983. According to Saahir,

the defendants agreed to settle these federal claims against them

by agreeing to allow Saahir any musical tape he desires. Saahir

argues that this is a vindication of a federal right because it has

been given to Saahir in exchange for his dropping of a suit based

on a federal right. In essence, it was one of the factors that led

to the terms of the agreement, and Saahir claims to have

relinquished some of his demands and damages in exchange for this

factor.1
approval on other grounds, id. at 879). However, Ibarra is

readily distinguishable. The particular state statute subject to

the decree's interpretation expressly incorporated a federal

statute, and "any change in the [federal] standard is

automatically incorporated into Texas law." Id. Thus, the

ultimate basis of the decree was an interpretation of federal

law. 

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What the defendants agreed to give as a remedy, however, does

not have any effect on the jurisdictional limits of a federal

court. Although "a federal court is not necessarily barred from

entering a consent decree merely because the decree provides

broader relief than the court could have awarded after a trial,"

Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland,

478 U.S. 501, 525, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986), the

federal court "must fall back on its inherent jurisdiction" when it

"issue[s] its own, different order enforcing ... the decree,"

Lelsz, 807 F.2d at 1252. Further, the possibility that Saahir

relinquished other damages in exchange for the non-religious tapes

is irrelevant. Although federal courts may award an injunction

governing a state official's future conduct, they may not award

retroactive monetary relief. Edelman v. Jordan, 415 U.S. 651, 666-

67, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974).

 Next, Saahir contends that the settlement agreement did not

contain any rules or guidelines on what tapes would be considered

religious. Because the settlement agreement did not give the

defendants the authority to determine what tapes were religious,

but instead gave that authority to Saahir, Saahir should be given

reasonable discretion on this issue. Saahir, however, never claims

that these tapes were necessary for his religious beliefs.
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Instead, he rests his appeal on the idea that the defendants have

agreed to allow him his non-religious tapes. Further, just as the

scope of the consent decree does not enlarge the court's

jurisdiction, the way the parties agreed to implement the remedy

contained in the consent decree likewise cannot affect the

jurisdictional bounds of the federal courts.

Finally, Saahir argues that the defendants waived their

Eleventh Amendment immunity when they entered the settlement

agreement. It has been consistently held that a State may consent

to suit against it in federal court. Clark v. Barnard, 108 U.S.

436, 447, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883). According to

Saahir, by entering the consent decree, the defendants consented to

the district court's jurisdiction to rule on this issue. Saahir

states that the defendants never attempted to clarify the language

in the settlement agreement when they knew that Saahir would be

ordering non-religious tapes. Saahir claims that such facts

further bolster the contention that the defendants consented to the

court's jurisdiction. For example, Saahir points to the fact that

a non-religious tape was one of the tapes denied to Saahir which

prompted him to file his original suit. Saahir also states that,

at a hearing before the settlement, the parties discussed who would

"search" the non-religious tapes. Finally, when his first Arabic

tapes were lost by the TDC, a non-religious tape was returned to

Saahir. Saahir concludes by arguing that he had ordered

non-religious tapes for the past eight years without any problems

before now.
 

2Saahir's brief also points to the fact that his Amended

Complaint in the settled lawsuit states a Fourteenth Amendment

claim. Saahir is apparently arguing that his rights to the

non-religious tapes are guaranteed by the Fourteenth Amendment. 

In his Amended Complaint, however, Saahir never requests

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The State's consent, however, must be unequivocally

expressed. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. Here,

the defendants did not expressly waive their immunity in the

settlement agreement. Nor can we find an express consent in the

proceedings on Saahir's motion. Indeed, the defendants argued that

the settlement agreement did not cover non-religious tapes, which

suggests that the defendants did not unequivocally consent to a

district court ruling with respect to a non-federally protected

right. Although Saahir presents evidence suggesting that the

defendants had knowledge of non-religious tapes being present, he

has not proved that the defendants believed that the consent decree

covered non-religious tapes. Because "[w]aiver of a state's

sovereign immunity, like waiver of any constitutional right, is

strictly construed in favor of the holder of the right," Lelsz, 807

F.2d at 1253, and because "[c]onstructive consent is not a doctrine

commonly associated with the surrender of constitutional rights,

and we see no place for it here," Edelman, 415 U.S. at 673, 94

S.Ct. at 1360, we hold that there has not been a sufficient showing

that the defendants waived their Eleventh Amendment immunity.

CONCLUSION

Because the district court had no jurisdiction to enforce the

instant provision of the consent decree, we REVERSE the district

court's granting of the motion for civil contempt.2
non-religious tapes nor does he claim that the defendants had

confiscated or withheld such tapes. 

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