Skip navigation
× You have 2 more free articles available this month. Subscribe today.

No Interlocutory Appeals in Decree Terminations

The court of appeals for the Sixth
circuit held that it lacks jurisdiction to hear interlocutory appeals in motions to terminate consent decrees. In 1984 the United States sued the state of Michigan over unconstitutional prison conditions. The lawsuit was settled with a consent decree where the state of Michigan agreed to improve numerous conditions of confinement. In 1996 the PLRA was enacted and 18 U.S.C. § 3626 provides for the termination of all prospective relief entered without a court finding that the relief was narrowly drawn, extends no further than necessary to correct the violation of the federal right and is the least intrusive means necessary to correct the violation of the federal right.

The state moved to terminate the decree. 18 U.S.C. § 3626(e)(2) provided that prospective relief will be stayed thirty days after a motion to terminate is filed. [This has since been changed to 60 days.] The district court found the stay provision unconstitutional because it couldn't decide the motion in 30 days. The district court held that an evidentiary hearing was needed to determine if prospective relief was necessary under 18 U.S.C. § 3626(b)(3) and the U.S. also filed a motion for access to prisons, DOC staff and documents in order to present an argument on the state's motion to terminate. The court granted the U.S.'s motion and the state immediately appealed.

Federal appeals courts typically review only final orders under 28 U.S.C. § 1291. Appeals courts can hear interlocutory appeals under 28 U.S.C. § 1292(a)(1) involving motions to dissolve injunctions. The court held it lacked jurisdiction under either statute. The lower court's attempt to create an evidentiary record and inaction on the motion to terminate the decree until discovery was conducted, were not appealable until final orders were issued.

The appeals court also lacked subject matter jurisdiction to hear the appeal on the district court's failure to dissolve the decree within 30 days of the motion being filed. The court held that the merits could be decided only after a final adjudication of that motion. See: United States v. State of Michigan , 134 F.3d 745 (6th Cir. 1998).

Not mentioned by the court is the ironic position of the U.S. Department of Justice which has intervened in numerous cases to defend the constitutionality of 18 U.S.C. § 3626, in questioning the very same law in this case.

Seventh Circuit Upholds Constitutionality of Physical Injury Requirement

The court of appeals for the seventh circuit upheld the constitutionality of section 803(d) of the Prison Litigation Reform Act (PLRA) which limits money damages to only those cases involving physical injury. Several Indiana state prisoners filed suit under the Eighth amendment claiming mental and emotional injuries stemming from exposure to asbestos in a prison kitchen. None of the plaintiffs had developed physical symptoms resulting from the asbestos exposure at the time the suit was filed.

The district court dismissed the suit on the pleadings. The court held that section 803(d) of the PLRA, codified at 42 U.S.C. § 1997e(e) barred the claim for damages. See: Zehner v. Trigg , 952 F. Supp. 1318 (SD IN 1997). [ PLN , Aug. 1997] Section 1997e(e) states: "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

The court of appeals affirmed the district court ruling. At the outset the court notes that § 1997e(e) probably does not apply to cases that were pending at the time of the PLRA's enactment on April 26, 1996. However, because the plaintiffs did not raise this issue in the district court the appeals court held the plaintiffs had waived appellate review of the issue. The court also expressed its displeasure with the state of Indiana, noting "...that Indiana's brief consists of passages copied verbatim from the district court's admirable opinion. Such parroting is hardly admirable brief writing."

The supreme court has held that mental and emotional distress can constitute compensable injury in suits for money damages under 42 U.S.C. § 1983 based upon a violation of constitutional rights See: Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042 (1978). However, the court held that because 42 U.S.C. § 1983 is a creation of congress, it is within the power of congress to limit the remedies available for constitutional violations.

The appeals court rejected the argument based on Owen v. City of Independence , 445 U.S. 622, 100 S.Ct. 1398 (1980) that "a damages remedy against the offending party is a vital component of any scheme vindicating cherished constitutional guarantees" because in Owen congress expressed no intent to restrict a damages remedy while in § 1997e(e) congress has. The court noted that declaratory and injunctive relief remains as a remedy but ignored the fact that the PLRA also significantly restricts both the scope, availability and duration of injunctive relief. "As a legal conclusion, this point is unassailable. As a practical matter, however, it does not quiet all misgivings about the statute. For the plaintiffs, injunctive relief offers no comfort whatsoever If they have been poisoned by the defendants' actions, no injunction can stop them from becoming ill. More to the point, no injunction can save them from the fear that they might one day become ill. If these plaintiffs are to be compensated for that fear at all, it must be by damages.

"But the legal point remains: the constitution does not demand an individually effective remedy for every constitutional violation.... If it did, then the immunity of government officials to § 1983 liability would frequently be unconstitutional. If other prisoners are currently being exposed to asbestos within the Indiana prison system, they may seek injunctive relief for the violation. If the plaintiffs in this cause develop asbestos related illnesses, they themselves will be able to sue for damages. Because these remedies remain, congress's decision to restrict the availability of damages is constitutional as applied in this case."

The court rejected the argument that § 1997e(e) violates the equal protection clause of the fifth amendment and the right of access to the courts and the separation of powers doctrine. See: Zehner v. Trigg , 133 F.3d 459 (7th Cir. 1997).

In Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999 (1971) the supreme court observed that oftentimes money damages will be the only remedy available for constitutional violations. Since Bivens suits against federal officials are not congressional or statutory creations a strong argument can be made that § 1997e(e) does not apply to Bivens actions. See also Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468 (1980). If § 1997e(e) is affirmed in other, non Eighth amendment contexts, it will effectively immunize all constitutional violations that occur in prison which do not cause immediate physical injury, such as disciplinary actions, censorship, discrimination, sexual harassment, etc. To date the cases discussing § 1997e(e) have done so primarily in the eighth amendment context, which appears to endorse psychological torture so long as it doesn't cause "physical injury."

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

United States v. State of Michigan


United States v. State of Michigan, 134 F.3d 745 (6th Cir. 01/14/1998)

[Editor's note: footnotes (if any) trail the opinion]


[1] Pursuant to Sixth Circuit Rule 24

[2] ELECTRONIC CITATION: 1998 FED App. 0013P (6th Cir.)

[3] File Name: 98a0013p.06


[5] United States of America, Plaintiff-Appellee,


[6] State of Michigan; John Engler, Governor of Michigan; Michigan Department of Corrections; Kenneth L. McGinnis, Director, Michigan Department of Corrections; Dan L. Bolden, Deputy Director, Michigan Department of Corrections; John Jabe, Regional Administrator, State Prison of Southern Michigan; Pamela K. Withrow, Warden, Michigan Reformatory; and John Hawley, Warden, Marquette Branch Prison, Defendants-Appellants.

[7] No. 96-2464

[8] Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.

[9] No. 84-00063

[10] Richard A. Enslen, Chief District Judge.

[11] Argued: December 8, 1997

[12] Decided and Filed: January 14, 1998

[13] Before: GUY, NELSON, and DAUGHTREY, Circuit Judges.


[15] ARGUED:

[16] Susan Przekop-Shaw, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for Appellants.

[17] Marie K. McElderry, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C. for Appellee.

[18] ON BRIEF: Susan Przekop-Shaw, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for Appellants.

[19] Marie K. McElderry, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C. for Appellee.



[22] Defendants appeal the district court's order granting plaintiff access to certain State of Michigan prison facilities, staff, and documents for discovery purposes. Because we conclude the order is neither a final order under 28 U.S.C. Section(s) 1291 nor an interlocutory order properly appealable under 28 U.S.C. Section(s) 1292, we dismiss the appeal for lack of jurisdiction.


[23] In 1984, plaintiff sued defendants, the State of Michigan and various officials, under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section(s) 1997 et seq., alleging unconstitutional prison conditions. Shortly after the lawsuit was filed, the parties entered into a consent decree, which included a compliance plan. The plan dealt with such conditions of confinement as medical and mental health care, fire safety, sanitation, hygiene, crowding, and protection from harm. Since that time, the district court has overseen implementation of the plan, and various implementation orders have issued, some of which have been before this court on appeal. See, e.g., United States v. Michigan, No. 94-2391, 1995 WL 469430 (6th Cir. Aug. 7, 1995) (affirming in part denial of defendants' motion to modify remedial orders).

[24] In 1996, the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (codified in relevant part at 18 U.S.C. 3626), was enacted in an attempt to curb judicial involvement in prison administration. That Act provides in pertinent part that

[25] [i]n any civil action with respect to prison conditions, a defendant . . . shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

[26] Id. Section(s) 3626(b)(2). No findings of liability were made in this case, since it was initially resolved by a consent decree. Accordingly, defendants moved for immediate termination of the consent decree. *fn1 Defendants further invoked the automatic stay provision under the PLRA, id. Section(s) 3626(e)(2), which provides that prospective relief shall be automatically stayed beginning 30 days after a motion to terminate is filed. *fn2

[27] Shortly after defendants filed their motion, on July 3, 1996, the district court issued a decision stating that, in light of the "complexity of the issues presented" and the need for briefing, there was "no possible way" that it could decide the motion to terminate before the automatic stay provision would take effect. (App. 691.) It held that the stay provision was unconstitutional. That decision is the subject of a separate appeal pending before this court in United States v. Michigan, No. 96-1907 (6th Cir. filed July 19, 1996).

[28] The district court in its July 3 order further referred to the need for evidentiary hearings to decide the motion to terminate. In that regard, the PLRA provides that

[29] [p]rospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.

[30] 18 U.S.C. Section(s) 3626(b)(3). *fn3 On August 26, 1996, the United States filed a motion for access to prison facilities, staff and documents covered under the decree "to formulate its position and present argument" in response to defendants' motion to terminate.

[31] On September 12, 1996, the district court granted plaintiff's motion for access. In anticipation of further fact-finding, the court did not address the merits of defendants' motion to terminate in its order granting discovery. It did, however, opine that based on recent hearings on the issue of mental health care the existing record was sufficient to establish that a current or ongoing violation of a federal right existed regarding that issue. The court noted, however, that plaintiff's proposed tour of the prison facilities would assist the court on the issue of whether the relief contained in the decree was consistent with the PLRA requirements that relief be "narrowly drawn," "extend[] no further than necessary to correct the violation of the Federal right," and be "the least intrusive means to correct the violation," 18 U.S.C. Section(s) 3626(b)(3), when it decides defendants' motion to terminate.

[32] Defendants filed an appeal of the September 12 order. On appeal, plaintiff filed a motion to dismiss the appeal. The motion was denied, deferring a final jurisdictional ruling to the hearing panel on the appeal.


[33] Before considering the merits of any appeal this court must satisfy itself that appellate jurisdiction exists to hear the appeal. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 540 (1987). This court has jurisdiction to review final decisions of the district court. 28 U.S.C. Section(s) 1291. In addition, it has jurisdiction over certain interlocutory orders, including those "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C. Section(s) 1292(a)(1). It is under this latter provision that defendants contend appellate jurisdiction lies.

[34] Defendants assert three grounds for jurisdiction:

[35] (1) the district court refused to terminate the prospective mental health relief contained in the remedial plan; (2) the order grants the United States access to the prison facilities and permits creation of an evidentiary record to discover any constitutional violations before the court will decide defendants' motion for immediate termination; and (3) the order represents evidence of the district court's failure to expeditiously address defendants' termination motion and such delay effectively constitutes a refusal to dissolve injunctive relief. We address these grounds in turn.

[36] A.Refusal to Terminate Prospective Mental Health Relief

[37] Defendants' first argument in support of appellate jurisdiction is based on the false premise that the district court refused to terminate prospective mental health relief. First, although defendants' request for termination of relief was pending before the court for decision, the court's order decided only plaintiff's request for discovery. Second, although the court did opine that current constitutional violations existed as to mental health care, the order explicitly provided that a decision whether to terminate mental health relief will not be made until the ordered discovery is conducted and the court has an opportunity following evidentiary hearings to consider whether the relief provided under the decree is narrowly drawn to satisfy the PLRA.

[38] B. Creation of an Evidentiary Record

[39] Defendants next argue that appellate jurisdiction is appropriate because the district court's grant of the discovery motion sets in motion the creation of an evidentiary record not contemplated by the PLRA. We fail to see how this is a jurisdictional argument rather than an argument on the merits, challenging the court's decision to conduct fact-finding before deciding the motion to terminate. If the court wrongfully creates an evidentiary record in ultimately deciding defendants' motion to terminate, defendants can raise that issue on appeal at that time. *fn4 See Rodgers v. United States Steel Corp., 508 F.2d 152, 160 (3d Cir. 1975) (order that does not reach merits of claim is "nothing more than a step in the processing of the case and does not fall within Section(s) 1292(a)(1)").

[40] C.Failure to Expeditiously Address Defendants' Motion to Terminate

[41] As their final justification for appellate jurisdiction, defendants argue that the court's grant of plaintiff's discovery motion denies the dissolution of injunctive relief. While in a practical sense, any determination that defers a decision on the termination motion at least temporarily denies dissolution of injunctive relief, defendants' argument proves too much, since any interlocutory order, to the extent it diverts the court's attention and consideration from pending matters, necessarily prolongs litigation. See, e.g., R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 431 (7th Cir. 1991) ("[i]f the cost, delay, and aggravation of litigation" made an order appealable, courts of appeals would be deluged). Defendants' sense of urgency in resolving this matter is understandable, particularly in light of the duration and complexity of this litigation. The merits of defendants' appeal, however, as they relate to defendants' motion to terminate, will be properly addressed to the extent they are raised on any appeal from an adjudication of that motion. *fn5



[43] *fn1 At the same time, defendants filed motions with this court to terminate the relief granted in the orders on appeal in United States v. Michigan, No. 96-1129 (6th Cir. July 3, 1996) and United States v. Michigan, No. 90-1701 (6th Cir. July 3, 1996). Those motions were denied in the first instance by the district court and the district court orders on appeal were remanded for reconsideration in light of the enactment of the PLRA.

[44] *fn2 That provision has subsequently been amended to permit postponement of the effective date of an automatic stay by 60 days for good cause. Department of Justice Appropriations Act, 1998, Pub. L. No. 105-119, Section(s) 123(a)(3)(C), 111 Stat. 2440, 2470 (1997).

[45] *fn3 The phrase, "current or ongoing violation" was recently amended to provide "current and ongoing violation." Section(s) 123(a)(2), 111 Stat. at 2470. The amendment is not material, however, for purposes of this appeal.

[46] *fn4 The State sought a writ of mandamus on this issue, which this court denied. United States v. Michigan, No. 96-1907 (6th Cir. Sept. 17, 1996).

[47] *fn5 Although on occasion this court has reviewed discovery orders that raised "`questions of unusual importance necessary to the economical and efficient administration of justice,'" FDIC v. Ernst & Whinney, 921 F.2d 83, 85 (6th Cir. 1990) (quoting EEOC v. K-Mart Corp., 694 F.2d 1055, 1060 (6th Cir. 1982)), we conclude that standard is not met here. For example, defendants would have this court review in piecemeal fashion the district court's findings relating to mental health in this appeal, which are only dicta, and later review findings as to other aspects of the decree in any subsequent appeal relating to the district court's disposition of defendants' motion to terminate.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]