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On the Edge of Midnight
by Mr.Wolf
An extraordinary ruling by the ninth circuit court of appeals in Hook v. State of Arizona, 98 F.3d 1177 (9th Cir. 1996), brought the Arizona prison system to the brink of disaster during the 1996 holiday season. The ruling is indicative of the folly being exhibited as states move to disengage long-standing consent decrees and enforce the provisions of the PLRA. [See: 'Prison Litigation Reform Act Passed," PLN Vol. 7 No. 7.]
On October 25, 1996, the ninth circuit issued its opinion reversing the earlier district court ruling of judge Carl Muecke regarding portions of a 1973 consent decree which allowed three 251b. food boxes to be sent to prisoners during the holiday season and possession of hot pots.
In 1973 prisoners filed suit alleging violations of their rights under the 1st, 8th and 14th amendments to the Constitution as they relate to restrictions on personal and legal mail, newspapers and magazines. The complaint also covered issues of double-bunking and lack of rehabilitative type programs.
That same year the Arizona Department of Corrections (ADOC) proposed comprehensive changes in its mail policies which the court accepted and approved as part of the consent decree. A ban on double-bunking the tiny cells at the maximum security Florence Central Unit was incorporated into the decree and issues relating to counseling. The complaint originally filed by prisoners did not mention or assert any right to receive food boxes or have hot pots. Those items were added by the ADOC and attorneys, and ultimately formalized as part of the consent decree.
In 1992, Governor Fife Symington (currently on federal trial for numerous counts of fraud and extortion) and then director of ADOC Sam Lewis, began to use captive prisoners to further monetary and political agendas. [See: 'Oppression on the Rise in Arizona," PLN, August 1994.] In October of that year the ADOC began it's relentless drive to eliminate food boxes from the decree. All attempts have been unsuccessful until now.
The decision to delete food boxes and hot pots from the decree ignited a ground swell of anger and resentment throughout the prison system. On October 29, 1996, the President of Middle Ground Prison Reform, Donna Hamm, sent a letter to director of ADOC, Terry Stewart, regarding the ruling and sent copies to several hundred prisoners.
Her letter begins: "For the first time in the history of Middle Ground, we are requesting the Department to delay implementation of a change in policy on the ground of an extraordinarily high probability of irrational response on the part of the prisoner population as a whole. In our opinion, based on many years of experience, the irrational prisoner response could easily, and probably will, include destructive acts--i.e., violence, work stoppages, riots."
She then discusses the positive benefits of holiday boxes to prisoners and their families and how it is "perhaps the most highly emotionally-charged issue with which I have been involved during 13 years of prison advocacy work." She correctly points out that, "Work stoppages and riots have actually occurred in the past, as a result of prisoner perception about abusive, repressive, and uncaring attitudes and policies on the part of prison administration. The Department's own internal report, The Impact of Overcrowding on Assaults and Major Disturbances dated February 1996, identifies a 142% increase in violence from 1994 to 1995, and identifies prison policy changes as contributing to this increase. The increase in violence is both prisoner-on-prisoner and prisoner-on-staff. The report identified specific policy changes that contributed to the increase in violence, including the curtailment of the inmate television system, reduction of inmate property and charges for health care, among others."
The trend in DOC created violence continued during 1996. PLN has been 100% accurate in its predictions regarding the eventual result of such repressive acts. [See: "Winds of Unrest Blowing over Arizona," PLN June 1995.] The past year has seen numerous disturbances of a degree requiring tactical team response at prisons around the state. The dogmatic attitude of state officials has given rise to an almost total lack of accountability at the unit levels in matters concerning abuse of prisoners, handling of mail and property, food services, classification and medical care. The erosion of the Hook decree is creating a broader system-induced rage in prisoners reminiscent of the days of Attica and Santa Fe.
As Donna Hamm further stated in her letter, "The crisis was created by the eleventh-hour conjunction of the court's sudden reversal of the 23-year old Christmas package policy and the imminent beginning of the 1996 Christmas food package season. These matters cannot be changed. The crisis is upon us and it must be managed or it will manage to manifest itself. Cool heads must prevail if the state is to avoid the unnecessary and inexcusable loss, grief and expense of after-the-fact crisis management. The loss of life for prisoners and prison staff, the millions of dollars in property destruction, the added pressures on the prison system from temporary serious damage to prison institutions, and other ancillary consequences are all easy to avoid and incredibly difficult to correct."
Director Stewart's response? Shortly after receipt of her letter he threatened to sue her, a free world private citizen, if there were riots or protests in the prison system. Individuals or groups of prisoners who were heard expressing their displeasure about the court's ruling were placed in detention units (lockdown) or otherwise suppressed with threats. It was anticipated that over twenty five different prison units might explode in large scale rioting.
Attorneys representing prisoners on Hook filed a motion for rehearing with the court alleging (correctly) that the ADOC had misled the court about the reasons for deleting the holiday boxes. On November 27, 1996, the ninth circuit issued a remarkable order advising it would not rule on the motion for rehearing until after December 1996. It further ordered that the decree remains in full effect and that the ADOC is therefore required to allow holiday food packages for the 1996 season. And they did.
However, the entire decree remains under diligent attack by state officials. Two years ago Governor Symington via the Legislature appropriated $1 million to a private group of attorneys for the express purpose of dismantling the consent decree and the provisions of Casey v. Lewis, which on the latter, ADOC did prevail. [See: "Supreme Court Reverses Court Access Case," PLN Vol. 7, No. 8.]
This group misleadingly named the Arizona Constitutional Defense Counsel (ACDC) has filed suit seeking to remove federal court oversight on prison issues regarding housing; vocational, educational and recreational programs; law libraries; mail; and disciplinary procedures and medical care. Chairman of the ACDC group, Michael Block, said they are asking the court to "immediately and completely end all aspects of its supervision of Arizona's prisons." Block further stated that the passage of the PLRA "makes it a lot more favorable (for prisoncrat power mongers) to challenge federal courts."
Anticipation of favorable rulings for prison officials is already creating an atmosphere of callous disregard towards the legitimate needs of prisoners. A return to a hands-off doctrine is a course destined for disaster. Federal courts originally became involved in prison matters nationally because they had no choice. The courts had witnessed how states, pressed for dollars, and guided by empire building tyrants had used prisoners to further their political careers, line their pockets and turned a blind eye to atrocious violations of a constitutional dimension.
When absolute power was allowed states it only led to greed, corruption and widespread abuses. Prison officials demonstrated again and again gross violations of the 1st, 4th, 5th, 6th, 8th and 14th amendments to the U.S. Constitution. Without checks and balances, without recourse for legitimate grievances, and without independent and sound intervention of some form, history clearly reflects a path headed for destruction. How the courts will ultimately rule remains unknown. What is known is that it is five minutes to midnight and the clock is ticking.
Tribune Newspaper
An extraordinary ruling by the ninth circuit court of appeals in Hook v. State of Arizona, 98 F.3d 1177 (9th Cir. 1996), brought the Arizona prison system to the brink of disaster during the 1996 holiday season. The ruling is indicative of the folly being exhibited as states move to disengage long-standing consent decrees and enforce the provisions of the PLRA. [See: 'Prison Litigation Reform Act Passed," PLN Vol. 7 No. 7.]
On October 25, 1996, the ninth circuit issued its opinion reversing the earlier district court ruling of judge Carl Muecke regarding portions of a 1973 consent decree which allowed three 251b. food boxes to be sent to prisoners during the holiday season and possession of hot pots.
In 1973 prisoners filed suit alleging violations of their rights under the 1st, 8th and 14th amendments to the Constitution as they relate to restrictions on personal and legal mail, newspapers and magazines. The complaint also covered issues of double-bunking and lack of rehabilitative type programs.
That same year the Arizona Department of Corrections (ADOC) proposed comprehensive changes in its mail policies which the court accepted and approved as part of the consent decree. A ban on double-bunking the tiny cells at the maximum security Florence Central Unit was incorporated into the decree and issues relating to counseling. The complaint originally filed by prisoners did not mention or assert any right to receive food boxes or have hot pots. Those items were added by the ADOC and attorneys, and ultimately formalized as part of the consent decree.
In 1992, Governor Fife Symington (currently on federal trial for numerous counts of fraud and extortion) and then director of ADOC Sam Lewis, began to use captive prisoners to further monetary and political agendas. [See: 'Oppression on the Rise in Arizona," PLN, August 1994.] In October of that year the ADOC began it's relentless drive to eliminate food boxes from the decree. All attempts have been unsuccessful until now.
The decision to delete food boxes and hot pots from the decree ignited a ground swell of anger and resentment throughout the prison system. On October 29, 1996, the President of Middle Ground Prison Reform, Donna Hamm, sent a letter to director of ADOC, Terry Stewart, regarding the ruling and sent copies to several hundred prisoners.
Her letter begins: "For the first time in the history of Middle Ground, we are requesting the Department to delay implementation of a change in policy on the ground of an extraordinarily high probability of irrational response on the part of the prisoner population as a whole. In our opinion, based on many years of experience, the irrational prisoner response could easily, and probably will, include destructive acts--i.e., violence, work stoppages, riots."
She then discusses the positive benefits of holiday boxes to prisoners and their families and how it is "perhaps the most highly emotionally-charged issue with which I have been involved during 13 years of prison advocacy work." She correctly points out that, "Work stoppages and riots have actually occurred in the past, as a result of prisoner perception about abusive, repressive, and uncaring attitudes and policies on the part of prison administration. The Department's own internal report, The Impact of Overcrowding on Assaults and Major Disturbances dated February 1996, identifies a 142% increase in violence from 1994 to 1995, and identifies prison policy changes as contributing to this increase. The increase in violence is both prisoner-on-prisoner and prisoner-on-staff. The report identified specific policy changes that contributed to the increase in violence, including the curtailment of the inmate television system, reduction of inmate property and charges for health care, among others."
The trend in DOC created violence continued during 1996. PLN has been 100% accurate in its predictions regarding the eventual result of such repressive acts. [See: "Winds of Unrest Blowing over Arizona," PLN June 1995.] The past year has seen numerous disturbances of a degree requiring tactical team response at prisons around the state. The dogmatic attitude of state officials has given rise to an almost total lack of accountability at the unit levels in matters concerning abuse of prisoners, handling of mail and property, food services, classification and medical care. The erosion of the Hook decree is creating a broader system-induced rage in prisoners reminiscent of the days of Attica and Santa Fe.
As Donna Hamm further stated in her letter, "The crisis was created by the eleventh-hour conjunction of the court's sudden reversal of the 23-year old Christmas package policy and the imminent beginning of the 1996 Christmas food package season. These matters cannot be changed. The crisis is upon us and it must be managed or it will manage to manifest itself. Cool heads must prevail if the state is to avoid the unnecessary and inexcusable loss, grief and expense of after-the-fact crisis management. The loss of life for prisoners and prison staff, the millions of dollars in property destruction, the added pressures on the prison system from temporary serious damage to prison institutions, and other ancillary consequences are all easy to avoid and incredibly difficult to correct."
Director Stewart's response? Shortly after receipt of her letter he threatened to sue her, a free world private citizen, if there were riots or protests in the prison system. Individuals or groups of prisoners who were heard expressing their displeasure about the court's ruling were placed in detention units (lockdown) or otherwise suppressed with threats. It was anticipated that over twenty five different prison units might explode in large scale rioting.
Attorneys representing prisoners on Hook filed a motion for rehearing with the court alleging (correctly) that the ADOC had misled the court about the reasons for deleting the holiday boxes. On November 27, 1996, the ninth circuit issued a remarkable order advising it would not rule on the motion for rehearing until after December 1996. It further ordered that the decree remains in full effect and that the ADOC is therefore required to allow holiday food packages for the 1996 season. And they did.
However, the entire decree remains under diligent attack by state officials. Two years ago Governor Symington via the Legislature appropriated $1 million to a private group of attorneys for the express purpose of dismantling the consent decree and the provisions of Casey v. Lewis, which on the latter, ADOC did prevail. [See: "Supreme Court Reverses Court Access Case," PLN Vol. 7, No. 8.]
This group misleadingly named the Arizona Constitutional Defense Counsel (ACDC) has filed suit seeking to remove federal court oversight on prison issues regarding housing; vocational, educational and recreational programs; law libraries; mail; and disciplinary procedures and medical care. Chairman of the ACDC group, Michael Block, said they are asking the court to "immediately and completely end all aspects of its supervision of Arizona's prisons." Block further stated that the passage of the PLRA "makes it a lot more favorable (for prisoncrat power mongers) to challenge federal courts."
Anticipation of favorable rulings for prison officials is already creating an atmosphere of callous disregard towards the legitimate needs of prisoners. A return to a hands-off doctrine is a course destined for disaster. Federal courts originally became involved in prison matters nationally because they had no choice. The courts had witnessed how states, pressed for dollars, and guided by empire building tyrants had used prisoners to further their political careers, line their pockets and turned a blind eye to atrocious violations of a constitutional dimension.
When absolute power was allowed states it only led to greed, corruption and widespread abuses. Prison officials demonstrated again and again gross violations of the 1st, 4th, 5th, 6th, 8th and 14th amendments to the U.S. Constitution. Without checks and balances, without recourse for legitimate grievances, and without independent and sound intervention of some form, history clearly reflects a path headed for destruction. How the courts will ultimately rule remains unknown. What is known is that it is five minutes to midnight and the clock is ticking.
Tribune Newspaper
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Related legal case
Hook v. State of Arizona
| Year | 1996 |
|---|---|
| Cite | 98 F.3d 1177 (9th Cir. 1996) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Hook v. State of Arizona, 98 F.3d 1177, 96 Cal. Daily Op. Serv. 7837 (9th Cir. 10/25/1996)
[Editor's note: footnotes (if any) trail the opinion]
FOR PUBLICATION
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] EVAN ARTHUR HOOK, et al.,
[3] Plaintiffs-Appellees,
v.
[4] STATE OF ARIZONA, et al.,
[5] Defendants-Appellants.
[6] No. 95-15897
[7] D.C. No. CV-73-00097-CAM
[8] ORDER AND OPINION
[9] Appeal from the United States District Court for the District of Arizona
[10] Carl A. Muecke, District Judge, Presiding
[11] Argued and Submitted September 20, 1996
[12] San Francisco, California
[13] Opinion Filed October 25, 1996
[14] Opinion Withdrawn July 17, 1997
[15] Filed July 17, 1997
[16] Before: Robert R. Beezer and David R. Thompson, Circuit Judges, and Irma E. Gonzalez, District Judge.
[17] Opinion by Judge Thompson; Concurrence by Judge Beezer
[18] COUNSEL
[19] Gordon S. Bueler, Assistant Attorney General, Phoenix, Arizona, for the defendants-appellants.
[20] Randy Papetti, Lewis & Roca, Phoenix, Arizona, for the plaintiffs-appellees.
[21] ORDER
[22] The petition for rehearing is granted. The opinion filed October 25, 1996 and published as Hook v. Arizona, 98 F.3d 1177 (9th Cir. 1996), is withdrawn.
[23] A majority opinion and a concurring opinion, which replace the withdrawn opinion, are filed contemporaneously herewith.
[24] OPINION
[25] THOMPSON, Circuit Judge:
[26] The Arizona Department of Corrections (Department) moved in the district court to modify a consent decree to delete a provision which allowed state prisoners to receive three twenty-five pound packages each year during the December holiday season (holiday packages). The prisoners opposed this motion and moved to modify the decree to change the title of the list of people authorized to send holiday packages, and to permit inmates to possess and use hot pots in their cells to heat and cook food items.
[27] The district court denied the Department's motion, granted the prisoners' motion, and issued a clarifying order. The court also appointed a special master to monitor compliance with the holiday package program.
[28] The Department appeals. We have jurisdiction under 28 U.S.C. S 1292(a)(1) and we reverse in part. We conclude the Department established that there had been a substantial change of circumstances warranting some modification of the holiday package provision of the consent decree. With regard to the prisoners' motion, we conclude there was no showing that maintenance of hot pots by the prisoners in their cells was intended to be part of the original decree, or that circumstances warranted the inclusion of such a provision. We affirm, however, the district court's order changing the title of the holiday package list and its appointment of a special master. We also hold the Department received adequate notice and an opportunity to be heard regarding the district court's clarifying order.
[29] FACTS
[30] In 1973, certain prisoners filed a civil rights action alleging the Department's mail policies violated their rights under the First and Fourteenth Amendments. The prisoners alleged they had a constitutional right to subscribe to certain magazines, including Playboy and Bachelor Beat; to send letters to judicial officers and people who were not on an approved mailing list; and to receive letters from more than ten people. The complaint did not mention or assert the right to receive holiday packages or to have hot pots.
[31] The same year, the Department proposed comprehensive mail regulations. The prisoners and the district court accepted and approved the regulations as the consent decree. The decree allowed each prisoner to receive three twenty-five pound packages between December 10th and 31st of each year. Specifically, the decree provided:
[32] Gift Packages - Incoming Residents at all adult correctional institutions, except while in the Diagnostic-Reception Centers, may receive gift packages from those persons whose names appear on the resident's approved visiting list.
[33] No soap, shampoo, toothpaste, deodorants, cigarettes, cigars, tobacco, vitamins or medicines may be included in packages. Food items may be sent only at Christmas and may not be packed in glass containers. A limit of three (3) packages of twenty-five (25) pounds each per resident will be permitted at Christmas time (December 10-31).
[34] In October 1992, the Department moved to modify the decree to eliminate the holiday package provision. Because the motion was filed so close to the holidays, the district court stated it did not have time to issue a decision before packages were to be received under the decree.
[35] The district court delayed ruling on the Department's modification motion until April 1995, because the Department and the prisoners were engaged in settlement negotiations. During this time, the district court appointed a special master to investigate the Department's alleged violations of the decree and to monitor the Department's compliance with it.
[36] Before ruling on the Department's modification motion, the district court required the special master to issue a report with recommendations pertaining to the holiday package provision. In October 1994, the district court adopted most of the special master's recommendations and issued an order which purported to clarify the holiday package provision.
[37] When settlement negotiations proved unsuccessful, the district court heard the Department's and the prisoners' motions to modify. The district court denied the Department's motion, granted the prisoners' motion, and this appeal followed.
[38] DISCUSSION
[39] A. The Modification Motions
[40] We will reverse a district court's ruling on a modification motion "only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." Miller v. California Pac. Medical Ctr., 19 F.3d 449, 455 (9th Cir. 1994); see also ACF Indus. v. California State Bd. of Equalization, 42 F.3d 1286, 1289 (9th Cir. 1994); United States v. State of Or., 769 F.2d 1410, 1416 (9th Cir. 1985).
[41] [1] When determining whether modification of a consent decree is appropriate, the district court should exercise flexibility. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992). The party requesting modification has the burden to demonstrate that a "significant change" in fact or law warrants the modification. Id. at 383-84. Modification is appropriate under this standard when "a decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest." Id. at 384 (internal citations omitted). If a party meets this burden, "the district court should determine whether the proposed modification is suitably tailored to the changed circumstance." Id. at 391. The district court's "focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances." Id.
[42] 1. Department's Motion to Modify
[43] Since the Department entered into the decree in 1973, the population of Arizona's prisons has increased significantly. In 1973, when the decree was approved, the prison population was 1,759. By 1994, the number of inmates had ballooned to 19,500. The Department projects the prison population will continue to increase by 100 new inmates per month. Beyond this rise in the number of inmates, the present prison population consists of an inordinate number of prisoners who are controlled substance abusers.
[44] The explosion in prison population and the number of prisoners who have abused controlled substances present serious security risks to both the prison staff and the prisoners. This risk is exacerbated by the requirement that the prisons permit prisoners to receive the holiday packages. Each package must be inspected. During the four years between 1990 and 1993, an annual average of 24,250 packages were inspected at an average cost of $124,000 per year. These inspections divert staff from other duties, including monitoring security within the institution. The risk of contraband smuggling also is greatly increased. To date, controlled substances have been found in six holiday packages and one prisoner has died from using heroin which he received in such a package. *fn1
[45] [2] The district court found that the Department had anticipated a rise in the prison population and, thus, had not met its "heavy burden" of justifying modification of the decree. See id. at 385. We conclude that this finding is clearly erroneous. Certainly, the Department anticipated an increase in the prison population. However, there is no evidence which suggests that, at the time the Department entered into the decree, it foresaw the explosion in the number of incarcerated prisoners or that such a large portion of them, approximately 70 %, would be controlled substance abusers.
[46] [3] The Department also presented uncontroverted evidence that mandatory sentencing legislation was enacted after the Department entered into the decree. This was an unforeseen development which resulted in longer prison sentences. Prisoners who previously would have served their time and left prison to make room for incoming prisoners now remain incarcerated, increasing the prison population in a way not anticipated when the decree was entered.
[47] [4] We conclude the district court abused its discretion in determining the Department did not meet its burden of demonstrating that changed factual circumstances warrant a modification. The changed circumstances, which raise security concerns for the institution, its employees, and the prisoners, warrant some modification to the holiday package provision. We remand the case to the district court so that it may determine a suitable modification to alleviate the security concerns. See Ralls v. United States, 52 F.3d 223, 226 (9th Cir. 1995) (citing general rule that appropriate course is to remand action to district court).
[48] 2. Inmates' Motion
[49] The district court modified the consent decree to include hot pots for prisoners. Hot pots are used by prisoners in their cells to heat and cook food items, not only during the holiday season but throughout the year. The district court found that hot pots had been permitted in Arizona's prisons since at least 1980. The court's modification order reads: "No orders, memorandums, instructions or regulations, or any directive to that effect, shall be issued by the [Department] in conflict with the prisoners' obtaining hot pots."
[50] [5] The district court erred in modifying the consent decree to include hot pots for the prisoners. Although, in the past, the Department permitted prisoners to have hot pots, there is no evidence that the parties intended to include hot pots as a contractual prisoner right within the consent decree. And, no one suggests the Constitution confers such a right.
[51] [6] Nor did the inmates present evidence of a significant factual or legal change in circumstances to justify inclusion of the requested hot pot provision in the decree. To the contrary, the Department demonstrated that the possession and use of hot pots by the inmates could pose a security problem.
[52] The district court, however, did not err by changing the name of the list which identifies who may send the holiday packages. This was merely a semantic change and was made because the prior title caused confusion among the prisoners and the people who send the holiday packages. Further, the Department did not object to this change before the district court and, thus, has waived its challenge on appeal. See United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978).
[53] B. Notice and Opportunity to Be Heard
[54] In October 1994, the district court issued its "clarification[s] of the consent decree." The Department argues these clarifications were actually modifications and it did not have notice of the changes or an opportunity to be heard.
[55] The Department had ample notice and an opportunity to be heard. The district court notified the parties that clarifications were needed so that the district court could adequately address the parties' modification motions and the district court held a hearing. The Department also had an opportunity to discuss the proposed clarifications with the special master before the district court issued its order.
[56] C. Appointment of Special Master
[57] The Department challenges the district court's appointment of the special master, arguing that no exceptional circumstances justified the appointment. We disagree.
[58] We first must determine whether we have jurisdiction over this issue. We have concluded that an appointment of a special master is generally an interlocutory order and not appealable. National Org. for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 540 (9th Cir. 1987). However, we also have suggested that a party may appeal an appointment in an appeal from the district court's order adopting or rejecting a master's recommendations. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987); see also Burlington N. v. Department of Revenue, 934 F.2d 1064, 1071 (9th Cir. 1991) (concluding court has jurisdiction over appeal of appointment when appointment "inextricably bound up with" the appealable order).
[59] The Department raises the appointment issue in its appeal from the district court's modification order. The modification order clearly is appealable under 28 U.S.C. S 1292(a)(1). Further, as in Burlington, the appointment is inextricably intertwined with the district court's appealable order. The district court required the special master to submit a report detailing recommended modifications and clarifications to the decree and adopted a clear majority of the recommendations. We, therefore, conclude we have jurisdiction over the special master issue.
[60] We review for abuse of discretion the district court's appointment of a special master. United States v. Suquamish Indian Tribe, 901 F.2d 772, 774 (9th Cir. 1990). A district court should appoint a special master only in exceptional circumstances. Burlington, 934 F.2d at 1071.
[61] [7] The district court detailed the Department's history of noncompliance with the consent decree and stated it lacked the resources to constantly monitor compliance with the decree, as it was required to do because of the Department's noncompliance. The district court also determined a special master was needed due to the complexity of the underlying litigation. In these circumstances, the district court did not abuse its discretion. See Suquamish, 901 F.2d at 775 (concluding court may appoint special master "because of the complexity of litigation and problems associated with compliance with the district court order").
[62] CONCLUSION
[63] We reverse the district court's denial of the Department's motion to modify the holiday package provision, and remand to the district court for it to devise a suitable modification. We reverse and vacate the district court's order granting the prisoners' motion to include in the consent decree a right to possess and use hot pots.
[64] We affirm the district court's order changing the title of the list which identifies who may send the holiday packages. We hold the Department received adequate notice and an opportunity to be heard before the district court issued its clarification order. Finally, we affirm the district court's appointment of the special master.
[65] AFFIRMED in part, REVERSED in part, and REMANDED.
[66] BEEZER, Circuit Judge, concurring:
[67] I concur in the judgment. I write separately to emphasize that the role of the federal courts does not include the micromanagement of state institutions.
[68] The Arizona Department of Corrections has met its burden of establishing a change in circumstances, the significant expansion of the Arizona prison population, which warrants modification, and perhaps even elimination, of the holiday package provision of the consent decree. Although the district court retains responsibility for tailoring the modification to resolve the security problems created by this prison population explosion, see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992), the district court would do well to heed the views of the state prison authorities as to what constitutes a suitably tailored modification.
[69] The Supreme Court has held that "the public interest and [c]onsiderations based on the allocation of powers within our federal system . . . require that the district court defer to local government administrators, who have the primary responsibility for elucidating, assessing, and solving the problems of institutional reform, to resolve the intricacies of implementing a decree modification." Id. at 392 (internal quotations and citation omitted). Especially in the prison administration context, this admonishment should not be taken lightly:"[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons." Lewis v. Casey, 116 S. Ct. 2174, 2197 (1996) (Thomas, J., concurring) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-492 (1973)).
[70] Due to the existence of the consent decree entered into over two decades ago, the district court unfortunately is entangled in the administration of the Arizona penal institutions. In my view, the district court should severely limit its administrative role. Tailoring a suitable modification to the consent decree presents the district court with such an opportunity. The Arizona Department of Corrections officials have the experience, expertise and the primary authority to run the prisons; these officials are in the best position to determine how the holiday package provision should be modified in order to alleviate security concerns.
***** BEGIN FOOTNOTE(S) HERE *****
[71] *fn1 The prisoners argue these numbers are insignificant because during the four years between 1990 and 1993, a total of 97,000 holiday packages were received and only six were found to contain controlled substances. This argument misses the point. The fact that controlled substances have been found in holiday packages confirms the prison's need to detail personnel to assure careful inspection and control of the packages.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19961025
98 F.3d 1177, 96 Cal. Daily Op. Serv. 7837, 1997.C09.1307
Hook v. State of Arizona, 98 F.3d 1177, 96 Cal. Daily Op. Serv. 7837 (9th Cir. 10/25/1996)
[Editor's note: footnotes (if any) trail the opinion]
FOR PUBLICATION
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] EVAN ARTHUR HOOK, et al.,
[3] Plaintiffs-Appellees,
v.
[4] STATE OF ARIZONA, et al.,
[5] Defendants-Appellants.
[6] No. 95-15897
[7] D.C. No. CV-73-00097-CAM
[8] ORDER AND OPINION
[9] Appeal from the United States District Court for the District of Arizona
[10] Carl A. Muecke, District Judge, Presiding
[11] Argued and Submitted September 20, 1996
[12] San Francisco, California
[13] Opinion Filed October 25, 1996
[14] Opinion Withdrawn July 17, 1997
[15] Filed July 17, 1997
[16] Before: Robert R. Beezer and David R. Thompson, Circuit Judges, and Irma E. Gonzalez, District Judge.
[17] Opinion by Judge Thompson; Concurrence by Judge Beezer
[18] COUNSEL
[19] Gordon S. Bueler, Assistant Attorney General, Phoenix, Arizona, for the defendants-appellants.
[20] Randy Papetti, Lewis & Roca, Phoenix, Arizona, for the plaintiffs-appellees.
[21] ORDER
[22] The petition for rehearing is granted. The opinion filed October 25, 1996 and published as Hook v. Arizona, 98 F.3d 1177 (9th Cir. 1996), is withdrawn.
[23] A majority opinion and a concurring opinion, which replace the withdrawn opinion, are filed contemporaneously herewith.
[24] OPINION
[25] THOMPSON, Circuit Judge:
[26] The Arizona Department of Corrections (Department) moved in the district court to modify a consent decree to delete a provision which allowed state prisoners to receive three twenty-five pound packages each year during the December holiday season (holiday packages). The prisoners opposed this motion and moved to modify the decree to change the title of the list of people authorized to send holiday packages, and to permit inmates to possess and use hot pots in their cells to heat and cook food items.
[27] The district court denied the Department's motion, granted the prisoners' motion, and issued a clarifying order. The court also appointed a special master to monitor compliance with the holiday package program.
[28] The Department appeals. We have jurisdiction under 28 U.S.C. S 1292(a)(1) and we reverse in part. We conclude the Department established that there had been a substantial change of circumstances warranting some modification of the holiday package provision of the consent decree. With regard to the prisoners' motion, we conclude there was no showing that maintenance of hot pots by the prisoners in their cells was intended to be part of the original decree, or that circumstances warranted the inclusion of such a provision. We affirm, however, the district court's order changing the title of the holiday package list and its appointment of a special master. We also hold the Department received adequate notice and an opportunity to be heard regarding the district court's clarifying order.
[29] FACTS
[30] In 1973, certain prisoners filed a civil rights action alleging the Department's mail policies violated their rights under the First and Fourteenth Amendments. The prisoners alleged they had a constitutional right to subscribe to certain magazines, including Playboy and Bachelor Beat; to send letters to judicial officers and people who were not on an approved mailing list; and to receive letters from more than ten people. The complaint did not mention or assert the right to receive holiday packages or to have hot pots.
[31] The same year, the Department proposed comprehensive mail regulations. The prisoners and the district court accepted and approved the regulations as the consent decree. The decree allowed each prisoner to receive three twenty-five pound packages between December 10th and 31st of each year. Specifically, the decree provided:
[32] Gift Packages - Incoming Residents at all adult correctional institutions, except while in the Diagnostic-Reception Centers, may receive gift packages from those persons whose names appear on the resident's approved visiting list.
[33] No soap, shampoo, toothpaste, deodorants, cigarettes, cigars, tobacco, vitamins or medicines may be included in packages. Food items may be sent only at Christmas and may not be packed in glass containers. A limit of three (3) packages of twenty-five (25) pounds each per resident will be permitted at Christmas time (December 10-31).
[34] In October 1992, the Department moved to modify the decree to eliminate the holiday package provision. Because the motion was filed so close to the holidays, the district court stated it did not have time to issue a decision before packages were to be received under the decree.
[35] The district court delayed ruling on the Department's modification motion until April 1995, because the Department and the prisoners were engaged in settlement negotiations. During this time, the district court appointed a special master to investigate the Department's alleged violations of the decree and to monitor the Department's compliance with it.
[36] Before ruling on the Department's modification motion, the district court required the special master to issue a report with recommendations pertaining to the holiday package provision. In October 1994, the district court adopted most of the special master's recommendations and issued an order which purported to clarify the holiday package provision.
[37] When settlement negotiations proved unsuccessful, the district court heard the Department's and the prisoners' motions to modify. The district court denied the Department's motion, granted the prisoners' motion, and this appeal followed.
[38] DISCUSSION
[39] A. The Modification Motions
[40] We will reverse a district court's ruling on a modification motion "only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." Miller v. California Pac. Medical Ctr., 19 F.3d 449, 455 (9th Cir. 1994); see also ACF Indus. v. California State Bd. of Equalization, 42 F.3d 1286, 1289 (9th Cir. 1994); United States v. State of Or., 769 F.2d 1410, 1416 (9th Cir. 1985).
[41] [1] When determining whether modification of a consent decree is appropriate, the district court should exercise flexibility. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992). The party requesting modification has the burden to demonstrate that a "significant change" in fact or law warrants the modification. Id. at 383-84. Modification is appropriate under this standard when "a decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest." Id. at 384 (internal citations omitted). If a party meets this burden, "the district court should determine whether the proposed modification is suitably tailored to the changed circumstance." Id. at 391. The district court's "focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances." Id.
[42] 1. Department's Motion to Modify
[43] Since the Department entered into the decree in 1973, the population of Arizona's prisons has increased significantly. In 1973, when the decree was approved, the prison population was 1,759. By 1994, the number of inmates had ballooned to 19,500. The Department projects the prison population will continue to increase by 100 new inmates per month. Beyond this rise in the number of inmates, the present prison population consists of an inordinate number of prisoners who are controlled substance abusers.
[44] The explosion in prison population and the number of prisoners who have abused controlled substances present serious security risks to both the prison staff and the prisoners. This risk is exacerbated by the requirement that the prisons permit prisoners to receive the holiday packages. Each package must be inspected. During the four years between 1990 and 1993, an annual average of 24,250 packages were inspected at an average cost of $124,000 per year. These inspections divert staff from other duties, including monitoring security within the institution. The risk of contraband smuggling also is greatly increased. To date, controlled substances have been found in six holiday packages and one prisoner has died from using heroin which he received in such a package. *fn1
[45] [2] The district court found that the Department had anticipated a rise in the prison population and, thus, had not met its "heavy burden" of justifying modification of the decree. See id. at 385. We conclude that this finding is clearly erroneous. Certainly, the Department anticipated an increase in the prison population. However, there is no evidence which suggests that, at the time the Department entered into the decree, it foresaw the explosion in the number of incarcerated prisoners or that such a large portion of them, approximately 70 %, would be controlled substance abusers.
[46] [3] The Department also presented uncontroverted evidence that mandatory sentencing legislation was enacted after the Department entered into the decree. This was an unforeseen development which resulted in longer prison sentences. Prisoners who previously would have served their time and left prison to make room for incoming prisoners now remain incarcerated, increasing the prison population in a way not anticipated when the decree was entered.
[47] [4] We conclude the district court abused its discretion in determining the Department did not meet its burden of demonstrating that changed factual circumstances warrant a modification. The changed circumstances, which raise security concerns for the institution, its employees, and the prisoners, warrant some modification to the holiday package provision. We remand the case to the district court so that it may determine a suitable modification to alleviate the security concerns. See Ralls v. United States, 52 F.3d 223, 226 (9th Cir. 1995) (citing general rule that appropriate course is to remand action to district court).
[48] 2. Inmates' Motion
[49] The district court modified the consent decree to include hot pots for prisoners. Hot pots are used by prisoners in their cells to heat and cook food items, not only during the holiday season but throughout the year. The district court found that hot pots had been permitted in Arizona's prisons since at least 1980. The court's modification order reads: "No orders, memorandums, instructions or regulations, or any directive to that effect, shall be issued by the [Department] in conflict with the prisoners' obtaining hot pots."
[50] [5] The district court erred in modifying the consent decree to include hot pots for the prisoners. Although, in the past, the Department permitted prisoners to have hot pots, there is no evidence that the parties intended to include hot pots as a contractual prisoner right within the consent decree. And, no one suggests the Constitution confers such a right.
[51] [6] Nor did the inmates present evidence of a significant factual or legal change in circumstances to justify inclusion of the requested hot pot provision in the decree. To the contrary, the Department demonstrated that the possession and use of hot pots by the inmates could pose a security problem.
[52] The district court, however, did not err by changing the name of the list which identifies who may send the holiday packages. This was merely a semantic change and was made because the prior title caused confusion among the prisoners and the people who send the holiday packages. Further, the Department did not object to this change before the district court and, thus, has waived its challenge on appeal. See United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978).
[53] B. Notice and Opportunity to Be Heard
[54] In October 1994, the district court issued its "clarification[s] of the consent decree." The Department argues these clarifications were actually modifications and it did not have notice of the changes or an opportunity to be heard.
[55] The Department had ample notice and an opportunity to be heard. The district court notified the parties that clarifications were needed so that the district court could adequately address the parties' modification motions and the district court held a hearing. The Department also had an opportunity to discuss the proposed clarifications with the special master before the district court issued its order.
[56] C. Appointment of Special Master
[57] The Department challenges the district court's appointment of the special master, arguing that no exceptional circumstances justified the appointment. We disagree.
[58] We first must determine whether we have jurisdiction over this issue. We have concluded that an appointment of a special master is generally an interlocutory order and not appealable. National Org. for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 540 (9th Cir. 1987). However, we also have suggested that a party may appeal an appointment in an appeal from the district court's order adopting or rejecting a master's recommendations. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987); see also Burlington N. v. Department of Revenue, 934 F.2d 1064, 1071 (9th Cir. 1991) (concluding court has jurisdiction over appeal of appointment when appointment "inextricably bound up with" the appealable order).
[59] The Department raises the appointment issue in its appeal from the district court's modification order. The modification order clearly is appealable under 28 U.S.C. S 1292(a)(1). Further, as in Burlington, the appointment is inextricably intertwined with the district court's appealable order. The district court required the special master to submit a report detailing recommended modifications and clarifications to the decree and adopted a clear majority of the recommendations. We, therefore, conclude we have jurisdiction over the special master issue.
[60] We review for abuse of discretion the district court's appointment of a special master. United States v. Suquamish Indian Tribe, 901 F.2d 772, 774 (9th Cir. 1990). A district court should appoint a special master only in exceptional circumstances. Burlington, 934 F.2d at 1071.
[61] [7] The district court detailed the Department's history of noncompliance with the consent decree and stated it lacked the resources to constantly monitor compliance with the decree, as it was required to do because of the Department's noncompliance. The district court also determined a special master was needed due to the complexity of the underlying litigation. In these circumstances, the district court did not abuse its discretion. See Suquamish, 901 F.2d at 775 (concluding court may appoint special master "because of the complexity of litigation and problems associated with compliance with the district court order").
[62] CONCLUSION
[63] We reverse the district court's denial of the Department's motion to modify the holiday package provision, and remand to the district court for it to devise a suitable modification. We reverse and vacate the district court's order granting the prisoners' motion to include in the consent decree a right to possess and use hot pots.
[64] We affirm the district court's order changing the title of the list which identifies who may send the holiday packages. We hold the Department received adequate notice and an opportunity to be heard before the district court issued its clarification order. Finally, we affirm the district court's appointment of the special master.
[65] AFFIRMED in part, REVERSED in part, and REMANDED.
[66] BEEZER, Circuit Judge, concurring:
[67] I concur in the judgment. I write separately to emphasize that the role of the federal courts does not include the micromanagement of state institutions.
[68] The Arizona Department of Corrections has met its burden of establishing a change in circumstances, the significant expansion of the Arizona prison population, which warrants modification, and perhaps even elimination, of the holiday package provision of the consent decree. Although the district court retains responsibility for tailoring the modification to resolve the security problems created by this prison population explosion, see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992), the district court would do well to heed the views of the state prison authorities as to what constitutes a suitably tailored modification.
[69] The Supreme Court has held that "the public interest and [c]onsiderations based on the allocation of powers within our federal system . . . require that the district court defer to local government administrators, who have the primary responsibility for elucidating, assessing, and solving the problems of institutional reform, to resolve the intricacies of implementing a decree modification." Id. at 392 (internal quotations and citation omitted). Especially in the prison administration context, this admonishment should not be taken lightly:"[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons." Lewis v. Casey, 116 S. Ct. 2174, 2197 (1996) (Thomas, J., concurring) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-492 (1973)).
[70] Due to the existence of the consent decree entered into over two decades ago, the district court unfortunately is entangled in the administration of the Arizona penal institutions. In my view, the district court should severely limit its administrative role. Tailoring a suitable modification to the consent decree presents the district court with such an opportunity. The Arizona Department of Corrections officials have the experience, expertise and the primary authority to run the prisons; these officials are in the best position to determine how the holiday package provision should be modified in order to alleviate security concerns.
***** BEGIN FOOTNOTE(S) HERE *****
[71] *fn1 The prisoners argue these numbers are insignificant because during the four years between 1990 and 1993, a total of 97,000 holiday packages were received and only six were found to contain controlled substances. This argument misses the point. The fact that controlled substances have been found in holiday packages confirms the prison's need to detail personnel to assure careful inspection and control of the packages.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
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98 F.3d 1177, 96 Cal. Daily Op. Serv. 7837, 1997.C09.1307