Preston v. Thompson

589 F.2d 300

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 15, 1978
• Docket: Nos. 78-2401, 78-2516
• Status: Published

Opinions

SWYGERT, Circuit Judge.

The principal question before us is whether the district judge abused his discretion when he issued a preliminary injunction which required officials in charge of the Pontiac Correctional Center to provide two showers a week to all inmates and a daily hour of yard recreation to prisoners incarcerated in the west cellblock. We hold that the district judge did not abuse his discretion. We also hold that the district judge did not err when, in conjunction with the preliminary injunction, he found as a matter of law that tensions at Pontiac subsided soon after the July 22 riot and that an “emergency” situation did not exist at the prison as of November 3,1978. Finally, we conclude that the district court’s denial of the motion to intervene filed by the prison guards’ union did not constitute an abuse of discretion.

On July 22, 1978 a riot broke out among the prisoners incarcerated in the north and south cellblocks of the Pontiac Correctional Center. Three guards were killed, three other guards injured, and the buildings and facilities of the prison suffered massive damage. Pontiac prison officials, aided by outside tactical reinforcement, quickly restored order and immediately imposed a “deadlock” on the cellblocks of Pontiac prison.

Under the terms of a deadlock, prisoners are locked in their cells twenty-four hours a day. Meals are brought to the prisoners in their cells, and work assignments and recreation periods are cancelled. The deadlock at Pontiac has been marked by its length and severity. Normal prisoner grievance procedures were abolished from the day of the riot, July 22, to October 16, 1978. Prisoners received no showers until October. Family visits were banned from July 22 to October 14, and prisoners were not permitted to make any phone calls, even though this did not necessitate a prisoner’s leaving his cell, until September 30. The correction officials did not begin the “shakedown” of the prison — a search of each prisoner for weapons and contraband which is a preliminary step to a lifting of a deadlock — until October 2. Even today, “normal” procedures have not been restored. Meal, work, and recreation time is either severely curtailed or non-existent, and the prisoners spend all but a few hours a week locked in their six by ten feet two-man cells.

On August 31, 1978 plaintiffs, prisoners incarcerated at Pontiac prison, brought an action for injunctive relief pursuant to 42 U.S.C. § 1983. .They contended that the deadlock had continued longer than necessary for emergency, security purposes and was being maintained in violation of their constitutional rights. On September 7 plaintiffs moved for preliminary injunctive relief. The hearing on this motion commenced September 25; on September 29 the district judge continued the hearings to await the results of the shakedown which was to begin October 2 and was completed October 13. The hearing resumed October 16 and continued until October 25. On November 3 the district court issued a preliminary injunction against defendants.

The district court order of November 3 required Pontiac correction officials to restore family visitation and telephone privileges to their pre-riot status. The injunction also required defendants to provide two hours of yard recreation a week to prisoners in the north and south cellblocks. These requirements have been substantially complied with and have not been appealed. The injunction also directed defendants to produce a comprehensive plan for the reinstitution of pre-riot meal, work, and exercise routines. The defendants have presented the district court with a timetable for the restoration of these activities and the district judge has maintained jurisdiction over this element of his order to ensure that the execution of the timetable is constitutionally adequate. This provision of the district court’s November 3 order was not appealed.

Defendants appeal from the district court’s finding, made in conjunction with the November 3 order, that an emergency no longer exists at Pontiac prison. They also appeal the district court’s requirements that all prisoners be permitted two showers a week and that prisoners in the west cell-block be given an hour of yard recreation daily. These provisions of the November 3 order have been stayed pending this appeal.

The district court’s conclusions that tension at Pontiac decreased soon after the riot and that, as of November 3, no emergency existed justifying the continuation of the lock-up, can be overturned only if “clearly erroneous.” Fed.R.Civ.P. 52(a). We hold that these findings were not clearly erroneous. The district judge heard numerous witnesses — prison officials, guards, observers, psychologists, prisoners — who testified regarding the level of tension and the potential security dangers in the prison. In this testimony, even some of the defendant officials seemed to acknowledge that an emergency no longer existed. Further, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Fed.R.Civ.P. 52(a).

The district judge personally visited Pontiac prison, and later appointed a law clerk to observe the shakedown procedure. The trial court also took evidence about the character and frequency of unusual incidents occurring among the prisoners during the deadlock. The record reflects that these incidents decreased sharply after the first week in August, and that few of the incidents reported had anything to do with the potential security posture of the prison if the lock-up were lifted. The district court correctly observed that the existence of tension in a prison — particularly in a prison in which the inmates are locked in double cells twenty-four hours a day — does not mean that a security emergency exists. See generally La Batt v. Twomey, 513 F.2d 641, 648 (7th Cir. 1975). The district court’s findings that tensions decreased soon after the riot and that an emergency did not exist as of November 3 are upheld.

Defendants also appeal the shower and west cellblock recreation provisions of the November 3 order. A trial court, however, has considerable latitude in shaping injunctive relief; as we have noted before:

Since an application for a preliminary injunction is addressed to the sound discretion of the trial court, appellate review is extremely limited. Hulburt Oil and Grease Co. v. Hulburt Oil and Grease Co., 346 F.2d 260 (7th Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 77 (1965); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972).

American Medical Assoc. v. Weinberger, 522 F.2d 921, 924 (7th Cir. 1975). The district court’s injunction must be viewed in the context of the court’s duty to intervene in prison administration if that administration violates constitutional norms. Courts should be hesitant to interfere with the discretion afforded prison officials, but “in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States.” Newman v. State of Alabama, 559 F.2d 283, 288 (5th Cir. 1977), cert. denied, - U.S. -, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). And once a constitutional violation is demonstrated, “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 115, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). See also Newman, supra at 288.

The district court, having concluded that violations of due process had occurred in the course of the deadlock,² had considerable discretion to devise a remedy. The shower and west cellblock recreation provisions of the limited preliminary relief ordered by the district court on November 3 do not constitute an abuse of this discretion. The fact that these elements of the relief package may go beyond the constitutional minimum does not mean that the court lacks the authority to order them to remedy a constitutional violation. Swann, supra; Newman, supra. Nor do defendants’ assertions that these programs will create debilitating and dangerous staffing problems compel us to overturn the district court. The district court heard the evidence about staffing offered by defendants at the preliminary hearing and concluded that this evidence was outweighed by the need to restore some of the normal prison privileges at Pontiac in order to remedy the constitutional violations. The defendants cannot rely on fiscal and administrative difficulties to frustrate a district court’s mandate to remedy constitutional violations. See, e. g., Newman, supra at 288. And finally, since this is preliminary relief and still within the jurisdiction and discretion of the district judge, the precise provisions of the order are, if necessary, subject to reconsideration and revision by the district court.³

We also hold that the district court did not abuse its discretion when it denied the union’s motion to intervene. The union did not present its motion until November 28, over three weeks after the preliminary relief was.granted. The prison guards were aware of the litigation; in fact, many of them participated as witnesses for the defendants. They also knew that the relief sought by plaintiffs, by increasing prisoner movement, could impinge on the interests they now assert. Yet the union did nothing until three weeks after the State received an adverse decision. The Supreme Court has noted:

Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court’s ruling will not be disturbed on review.

NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). Under these circumstances, we hold that the district court’s order denying the union’s motion to intervene was proper. See EEOC v. United Air Lines, Inc., 515 F.2d 946 (7th Cir. 1975).⁴

In conclusion, we affirm the district court’s November 3 order and its denial of the union’s motion to intervene. The stay on the enforcement of the contested provisions of the order is vacated, effective immediately. The case in its entirety is remanded to the district court for continued adjudication of plaintiffs’ claims.

2 . The district court based its preliminary relief on due process violations. A determination of plaintiffs’ Eighth Amendment claims awaits trial on the merits.

3 . Defendants also attack the injunction on the grounds that the district judge failed to find that there had been irreparable harm, that there was likelihood of success on the merits, that the harm to plaintiffs of denying the injunction would be greater than the harm to defendants of granting it, and that the public interest would be served. The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest. See Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975), affd, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Swann, supra. The record compels the conclusions that plaintiffs are likely to succeed on the merits and that the harm to the prisoners of rejecting this relief would be greater than the harm to defendants of granting it.

4 . The union’s motion to strike the preliminary relief for failure to join it as an indispensable party likewise fails. See Kirkland v. New York State Dept. of Correctional Serv., 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976).