United States Court of Appeals

Fifth Circuit



## FILED

March 16, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-20170

GUADALUPE GUAJARDO, JR.; CLASS ACTION FOR TEXAS INMATES #844,

Plaintiffs-Appellants,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

At issue is the district court’s terminating the prospective

relief provide d by a 20-year-old consent decree concerning Texas

prison correspondenc e rules, pursuant to motion by the Texas

Department of Criminal Justice (TDCJ) under the Prison Litigation

Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (codified as

amended at 18 U.S.C. § 3626(b)(2))(PLRA). Essentially for the

reasons stated by the district court, see Guajardo v. Texas

Dep artment of Criminal Justice, et al. , No. H-71-570 (S.D. Tex.

filed 24 Sept. 2002)( Guajardo ), the judgment is AFFIRMED

.2 I.

This litigation began approximately 33 years ago, resulting in

this class action challenging the constitutionality of Texas prison

correspondence rules and prac tices (the rules). An agreed

settlement, approved in 1983, revised the r ules (the consent

decree). Guajardo v. Estelle , 568 F. Supp. 1354 (S.D.Tex. 1983).

The consent decree has been modified by stipulation on several

occasions. In September 2002, following discovery, and through an

extremely detailed 54-p age opinion and order, the district court

granted TDCJ’s motion, filed in 1997, to terminate the prospective

relief provided by the consent decree.

II.

Institutional consent decrees are “not intended to operate in

perpetuity”. Bd. of Educ. v. Dowell , 498 U.S. 237, 248 (1991).

The PLRA strongly disfavors continuing relief through the federal

courts; indeed, its “fundamental purpose ” was to extricate them

from managing state pri sons. C agle v. Hutto

, 177 F.3d 253, 257

(4th Cir. 1999), cert. denied

, 530 U.S. 1264 (2000 ). The PLRA

provides three methods for terminating such consent decrees: (1)

the passage of time, 18 U.S.C. § 3626(b)(1)(A); (2) agreement by

the parties, 18 U.S.C. § 3626(b)(1)(B); or (3) “if the relief was

approved or granted in the absence of a finding by the court that

[it was] narrowly drawn, extend[ed] no further than neces sary to

correct the violation of the Federal right, and [was] the least3

intrusive means necessary to correct the violation”, 18 U.S.C. §

3626(b)(2), unless “the court makes written findings based on the

record that prospective relief remains necessary to correct a

current and ongoing violation” of a federal right (ongoing

violation), and that, consistent with subpart (b)(2) above, the

relief is narrowly drawn, extends no further than necessary, and is

the least intrusive means, 18 U.S.C. § 3626(b)(3).

The district court held a hearing (not evidentiary) on TDCJ’s

motion to terminate relief, after dis covery and numerous

evidentiary submissions. The court found that the consent decree

provided for greater prospective relief t han required by federal

law, and that TDCJ was entitled to termination, unless plaintiffs

established that the relief remained necessary to correct an

ongoing vi olation. G uajardo at 6-7. T aking plaintiffs’

allegations as true

, the court found: there was no system-wide

constitut ional violation showing that the prospective relief was

necessary; and relief under the existing consent decree was neither

narrowly drawn nor the least intrusive means to correct any

individu al violations. I d

. at 49. The court noted an action

pursuant to 42 U.S.C. § 1983 remains for prisoners with individual

First Amendment claims. Id . at 50.

Plaintiffs contend the district court erred by: (1) placing

the burden of proof on them to show ongoing violations rather than

requiring TDCJ, the party seeking relief, to demonstrate none; (2)4

failing to treat TDCJ’s motion as one for summary judgment; and (3)

taking an “all-or-nothing approach” for terminating the decree,

rather than maintaining it for particular prison units or rules.

A.

A district court’s allocation of the burden of proof is

reviewed de novo ; its findings of fact on whether that burden has

been met, only for clear error. E .g.

, Stevens Shipping & Terminal

Co. v. Japan Rainbow II MV

, 334 F.3d 439, 443 (5th Cir. 2003). In

placing the burden on plaintiffs, the district court cited the

First Circuit’s de cision in L aaman v. Warden, N.H. State Prison

,

238 F.3d 14, 20 (1st Cir. 2001) (holding, to prevent termination,

burden on prisoners under 18 U.S.C. § 3626(b)(3) to show ongoing

violations). Noting a possible split between the First and Ninth

Circuits on this point, and relyin g on G ilmore v. People of the

State of California

, 220 F.3d 987 (9th Cir. 2000), plaintiffs

contend the burden is instead upon the party challenging the

consent decree — here, TDCJ.

Gilmore held the district court erred by terminating a consent

decree pursuant to the PLRA, including by placing the burden of

proof on the prisoners to establish ongoing violations instead of

requiring movant to prove its compliance with the prisoners’ right

of access to the courts. Plaintiffs recognize, however, that only

two years after Gilmore , the Ninth Circuit in another PLRA action

placed the burden on prisoners (movants) seeking a time extension5

for a consent decree. H allett v. Morgan

, 296 F.3d 732, 741-45 (9th

Cir. 2002). The court reasoned that the consent decree’s impending

expiration could be prevented only if movants proved ongoing

violations. “The ... standard for termination does not differ

materially from the standard to be applied in deciding whether

prospective relief is proper.” I d

. at 743. This reasoning —

placing the burden of proof und er 18 U.S.C. § 3626(b)(3) on the

party opposing termination of a consent decree

— is in obvious

tension with the earlier reasoning in Gilmore

.

Here, the consent decree was approved before enactment of the

PLRA, without the now required findings that relief be narrowly

drawn, extend no further than necessary to correct the violation of

a federal right , and be the least intrusive means to correct the

violation of that right. 18 U.S.C. § 3626(b)(2); s ee also Castillo

v. Cameron County

, 238 F.3d 339, 351-52 (5th Cir. 2001).

Therefore, the prospective re lief terminates unless the district

court makes these findings and , as discussed, also finds ongoing,

system-wide violations.

TDCJ, in seeking termination, must initia lly establish the

requisite passage of time. 18 U.S.C. § 3626(b)(1)(iii) (relief

terminable upon motion of any party, but “in the case of an order

issued

... before the date of enactment of the [PLRA], 2 ye ars

after such date of enactment”). As held by most courts, the burden

of proof then shifts to the prisoners to demonstrate ongoing6

violations and that the relief is narrowly drawn. 18 U.S.C. §

3626(b)(3). S ee Laaman

, 238 F.3d at 20; Rui z v. Johnson , 154 F.

Supp.2d 975 , 984 n.12 (S.D.Tex. 2001) (observing that

constitutional violations were foun d where prisoners met their

burden of proof); Imprisoned Citizens Union v. Shapp

, 11 F. Supp.2d

586, 604 (E.D.Pa. 1998), aff’d sub nom. Imprisoned Citizens Union

v. Ridge

, 169 F.3d 178 (3d Cir. 1999) (holding PLRA not

unconstitutional for placing on p risoners burden for proving

ongoing violations).

We agree with the great majority of courts to address this

issue: a plain reading of the PLRA, including its structure,

imposes the burden on the prisoners. Section 3626(b)(3) places a

limitation on the termination of prospective relief under a consent

decree if the court makes the requisite written findings based on

the record; but the burden of proof to supp ort these findings is

obviously on the party opposing termination. Accordingly, that

burden was allocated correctly to plaintiffs.

B.

In maintaining that the district court erred by not treating

TDCJ’s motion to terminate as one for summary judgment, plaintiffs

cite two instances in which the court characterized the motion as

one for summary judgment: at a hearing in April 1998; and during

a telephonic s tatus conference in early September 2002. This

latter instance was only 18 days before the district court ruled.7

At the April 1998 hearing, the court instructed plaintiffs to

provide

a more refined statement of exactly what

issues you believe to require additional

d iscovery, and I would take that as a

supplement to what is essentially a Rule 56-F

motion, that is a request for additional

discovery prior to the Court rendering a

decision on the summary judgment motion that’s

pending.

(Emphasis added.) This instruction concerning additional discovery

was restated in the hearing m inutes. At that hearing, the court

also made the following statement to plaintiffs:

Precisely what issues, if any, would require

further examination if the decree were not

terminated under the PLRA.

You have li sted what you see as those

issues.... How do they relate to the issues

that were the basis of the summ ary judgment

motion, the motion to terminate?

The other instance cited by plaintif fs is the following

colloquy from September 2002:

THE COURT: All right. Now I need some way to

approach this in a manageable fashion. There

was an indication in your [plaintiffs’]

pleadings

... that it was your assumption that

the Court was goin g to treat it as a motion

for summary judgment. Is that correct?

[Plaintiffs’ counsel]: That is correct, Your

Honor.

(Emphasis added.) The court, however, did not make any

pronouncement, then or at any point during the litigation, that the

motion would be treated as one for summary judgment. Indeed, the8

words “summary judgment” are noticeably absent from the court’s 54-

page opinion terminating the decree, rendered 18 day s after the

September 2002 colloquy. See Guajardo

.

Moreover, the only references by the court to summary judgment

procedure were made in the context of managing discovery for the

purpose of identifying issues relevant to terminating the consent

decree. The court permitted plaintiffs to conduct additional

discovery, akin to that permitted under Rule 56(f); t here is,

however, no basis for concluding that the court considered the

motion as one for summary judgment. The court was aware of, but

obviously did not agree with, plaintiffs’ position that the motion

should be treated in that fashion. These isolated statements in

five years of litigation on the motion fall far short of reflecting

that the district court considered the motion as one for summary

judgment.

Consistent with their contention, plaintiffs maintain the

court was obliged to view the evidence in the light most favorable

to them as nonmovants. Evaluating the evidence according to this

claimed summary judgment standard, plaintiffs assert they created

material fact issues on ongoing constitutio nal violations, which

entitles them to the ben efit of further proceedings. S ee F ED R.

C IV

. P. 56.

Plaintiffs provide no basis for a motion to terminate a

consent decree being treated as one for summary judgment. Indeed,9

summary judgment procedure is in tension with the framework of the

PLRA, which requires the court to make written, outcome

determinati ve findings based on the record, not intermediate

written findings on whether issues of fact compel further

proceedings.

In any event, the district court carefully considered each of

the violations claimed by individual plaintiffs. G uajardo at 8-48

(pl aintiffs claimed, with numerous individual allegations: (1)

unnecessary delays in processing publications, in violation of the

72-Hour Rule; (2) delayed mail, resulting in a denial of access to

courts; (3) improper processing and opening of special or

privileged corr espondence; (4) restrictions on media mail; (5)

content-based denials of correspondence and publications; (6) lack

of meaningful opportunity to appeal censorship decisions; and (7)

retaliation). As the district court noted, the Supreme Court has

required system-wide injury for system-wide injunctive relief. I d

.

at 48; see Lewis v. Casey

, 518 U.S. 343 (1996). The district court

found that none of the allegations, if true

, constituted an

ongoing, system-wide violation. G uajardo at 49. Concomitantly, it

noted that prisoners clai ming violations may pursue individual

relief pursuant to § 1983. As the district court ruled, the

prosp ective relief granted under the consent decree was neither

n arrowly drawn, extending no further than necessary to correct a10

constitutional violation, nor the least intrusive means necessary

to correct a constitutional violation. Id . at 49-50.

In so ruling, the district court noted that both sides

indicated at the 6 September 2002 status conference that no

evidentiary hearing was required. I d

. at 7 n.7. Plaintiffs state

they did not then seek an evidentiary hearing because they

understood that the motion would be treated as one for summary

judgment. Under that standard, plaintiffs note that, as

nonmovants, the record would be viewed in their favor, including

all inferences to be drawn from it. Because the motion was not

treated in that fashion, they claim they are entitled to an

evidentiary hearing. Even assuming this point was not waived in

district court, plaintiffs collide, again, with the PLRA’s

structure.

Whether to hold a PLRA pre-termination evidentiary hearing is

within the discretion of the district court; generally, to receive

such a hearing, plaintiffs’ submissions must allege specific facts

which, if true, would amount to an ongoing violation. S ee Guajardo

at 7 n.7; Cagl e , 177 F.3d at 258. The district court concluded,

however, that none of plaintiffs’ allegations satisfied that

requirement. Guajardo at 7 n.7. It did not abuse its discretion

by not holding an evidentiary hearing.11 C.

Plaintiffs also contend the district court abused its

discretion by terminating the consent decree rather than at least

maintaining it (1) at certain TDCJ units where numerous ongoing

violations allegedly persist; and (2) for certain rules concerning

those alleged violations. Plaintiffs fail to identify either those

TDCJ units or precisely the alleged violations. A PLRA termination

decision is reviewed de novo

. See Castillo , 238 F.3d at 347.

Plaintiffs’ contention is contrary to the scope of the

district court’s findings. It evaluated the numerous individual

claims for each of the claimed violations and found in each

instance there was no ongoing, system-wide violation. Plaintiffs

identified a number of alleged violations for the court, but these

allegations were expressly rejected.

Along this line, plaintiffs fail to identify any ongoing

v iolations the district court failed to consider. Instead, they

seek to re-litigate two aspects of the terminated decree: what

constitutes a “package” (claiming failure of rules to p rovide a

standard for “what constitutes a package” had the effect of denying

plaintiffs access to the courts) and the “72-Hour Rule” (claiming

violation of 72-Hour Rule caused unnecessary delays in processing

publications; the rule requires written notice for inmate and

editor or publisher within 72 hours of the rejection of any

publication, including reasons for rejection and right to appeal).12

A s the district court found, however, plaintiffs failed to

demonstrate a system-wide constitutional violation concerning

either that would require continuation of the consent decree.

Guajardo at 12 and 26. Plaintiffs have failed to demonstrate that

the court overlooked ongoing violations or was incorrect in

determining past violations no longer persisted.

III.

For the foregoing reasons, the judgment is

AFFIRMED

.