659 F.2d 420
United States Court of Appeals,
Fourth Circuit.

Warren C. NELSON, et al., Appellees,

v.

George COLLINS, et al., Appellants.

John H. X. WASHINGTON, et al., Appellees,

v.

Gerald A. KELLER, et al., Appellants.

Nos. 81-6347, 81-6368.

Heard En Banc June 1, 1981.

Decided Sept. 14, 1981.
Maryland state prisoners filed civil rights action claiming that conditions of confinement violated their Eighth Amendment constitutional rights. The United States District Court for the District of Maryland, Alexander Harvey, II, J., 450 F.Supp. 648, and the United States District Court for the District of Maryland, at Baltimore, C. Stanley Blair, J., 455 F.Supp. 727, concluded that conditions did violate Eighth Amendment's command against cruel and unusual punishment, and appeals and cross appeals were brought. The Court of Appeals, 588 F.2d 1378, affirmed in part and remanded. The United States District Court for the District of Maryland, Alexander Harvey, II and Norman P. Ramsey, JJ., entered judgment. Appeal was taken. The Court of Appeals, Donald Russell, Circuit Judge, held that taking into consideration changed circumstances at prisons, which made it plain that timetables established in previous decrees were not reasonably "achievable," despite defendants' "good faith" effort to meet timetables, defendants were entitled to modification of decrees governing prison overcrowding and insofar as decrees sought to declare double celling or double bunking in Maryland prisons were not "permissible" under federal constitutional laws, they were in error.
Ordered accordingly.
Winter, Chief Judge, filed a concurring and dissenting opinion in which Butzner and James Dickson Phillips, Circuit Judges, joined.
Taking into consideration changed circumstances at prisons, which made it plain that timetables established in previous court decrees were not reasonably "achieveable," despite defendants' "good faith" efforts to meet timetables, defendants were entitled to modification of decrees governing prison overcrowding and insofar as decrees sought to declare that double celling or double bunking in Maryland prisons were not "permissible" under federal constitutional law, they were in error.

*420 Stephen B. Caplis, Asst. Atty. Gen., Chief Correctional Litigation, Stephen H. Sachs, Atty. Gen. of Maryland, Baltimore, Md. (David H. Feldman, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.
Nevett Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble & Johnson, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md. (Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A., Baltimore, *421 Md., W. Michel Pierson, Pierson & Pierson, Baltimore, Md., on brief), Lawrence B. Coshnear, Baltimore, Md. (Warren A. Brown, Richard A. Seligman, Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellees.

Before WINTER, Chief Judge, and BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting en banc.


DONALD RUSSELL, Circuit Judge:
This is a consolidated appeal involving three actions charging unconstitutional overcrowding in three separate units of the Maryland State Prison System. These actions have been engaging the attention of the Maryland District Court for a number of years. One relates to conditions at the Maryland House of Correction ("MHC") and resulted in a decree reported under the title Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978). A second, reported in Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978), dealt with conditions at the Maryland Penitentiary and the Maryland Reception, Diagnostic & Classification Center (generally referred to as "MRDCC"). In both of those cases the District Court found unconstitutional overcrowding and ordered by way of relief the elimination of double celling on or before April 1, 1979. From both of those decrees, an appeal was taken to this Court. After an expedited consolidated en banc hearing, the appeals were decided in our opinion reported under the title, Johnson v. Levine in 588 F.2d 1378 (4th Cir. 1978).
In our opinion in Johnson, we began by declaring that "double celling," the housing of two prisoners in a cell initially designed for single occupancy, was not itself a "violation of the Constitution," but added that, if accompanied by other serious deprivations, it could be "a relevant factor" in determining whether "(u)nder the totality of all the circumstances (including the double celling) the aggregate effect amounts to cruel and unusual punishment." On the facts of the two cases under review, we held that the District Court had "reasonably found that the point (of cruel and unusual punishment in the constitutional sense) had been reached here." But we added in connection with the remedy decreed by the District Court, particularly the time fixed for the correction of the overcrowding (i. e., April 1, 1979), that
"... we are convinced that the overcrowded conditions cannot be completely eliminated without the construction and utilization of a new facility, which Maryland proposes to have available by June 1, 1980. Since the constitutional violation here is not as extreme or as shocking as in some of the reported cases, and since Maryland's plan is practical and reasonable and will achieve the required objective of elimination of overcrowding in its penal institutions, we think its plan and its schedule deserve judicial approval." Id. at 1381.
We accordingly remanded the cases to the District Court "with instructions to fashion new decrees which (would) incorporate Maryland's plan and its schedule (of June 1, 1980) for the elimination of overcrowding in the two penal institutions."
On remand, the District Court entered modified decrees in accordance with our mandate. In the Johnson case (MHC), the modified decree required the elimination of double bunking by June 1, 1980 and added "that on and after that date, no more than 1294 inmates could be housed at the MHC." Similarly, in the Nelson case (MRDCC), double celling, "with limited exceptions," was ordered eliminated "by June 1, 1980, and that thereafter the population of the combined institutions should not exceed 1003 inmates."
During the same time that the actions involving the Maryland House of Corrections (Johnson v. Levine ) and the Penitentiary Complex (Nelson v. Collins ) were pending, a third action was begun by the inmates at the Maryland Correctional Institution at Hagerstown (MCI). The constitutional claims in this case were similar to those in the other two actions. That action resulted in a consent decree entered on the same day that we heard the appeals in Johnson and Nelson. Under this consent *422 decree the defendants (the Governor, the Commissioner of the State Division of Correction and the Institution Superintendent) agreed to a schedule whereby double celling at the Institution would be eliminated by January 1, 1981, after which time the Institution's inmate population would be limited to no "more than six hundred seventeen (617) inmates."Washington v. Keller, 479 F.Supp. 569 (D.Md.1979).
Since the entry of the decrees in the three cases, the record indicates that the State authorities have proceeded with reasonable diligence to meet the mandates of the Court. So much was found by the District Court in its order of January 5, 1981, to which we refer in greater detail later. Recognizing, as we had in our opinion in Johnson, that the elimination of the unconstitutional conditions in the State prison system depended largely upon "the construction and utilization of a new facility," the State has contracted for additional facilities designed to relieve those conditions.[FN1] However, the State authorities have encountered a number of unexpected delays in the completion of these new facilities. This had delayed compliance with the Court Decrees within the time limits fixed therein. The District Court did not find, however, that these delays were the result of "deliberate" ignoring of the Court's decree or that the defendants had not made "good faith efforts * * * to meet the requirements of the Decree." Accordingly, because of the "good faith" efforts of the defendants to meet the deadlines fixed in the Decrees, various extensions have been requested by the State officials for compliance with the Court decrees and were granted on most occasions.
FN1. The relief contemplated by the State rested upon the completion particularly of the two facilities represented by the new Jessup Annex and the new Reception Center.
Despite the continued construction delays experienced, the prison officials had by October 1, 1980, achieved through various expedients full compliance with the Court's mandates to eliminate double celling at both the MHC and the MRDCC institutions. Beginning in October, 1980, and continuing thereafter, however, the prison authorities were confronted with a large influx of additional prisoners. This increase in the prison population was due to a number of factors beyond the control of the prison authorities. As a result, the prison officials were forced to exceed the provisions of the Court's decrees for prison population at the two facilities. At this point the plaintiffs petitioned the District Court to find the defendants in contempt in the Johnson and Nelson cases. The defendants, in turn, sought an extension of time for compliance with the Court's mandates. The petition for a finding of contempt was denied in a decree dated January 5, 1981. In so doing the District Court said:
"Certainly, defendants have been energetic, particularly in recent days, in searching for ways to solve the overcrowding problems which continue to exist at state penal institutions. It is not as apparent that defendants have acted as promptly or as effectively as they reasonably could have to eliminate unconstitutional overcrowding at the MRDCC. However, the test is reasonable diligence, and in view of the many unforeseen setbacks encountered by defendants in recent months, this Court is satisfied that they have met the required standard."
But, in denying any citation of civil contempt on the plaintiffs' motion, the District Court in its order of January 14, 1981, refused to extend the date for compliance by the defendants from October 1, 1980 to August 1, 1981, as requested by the defendants and provided rather for a monthly monitoring by the Court of the progress of the defendants in meeting the requirements of the Decrees at the prison facilities. It provided instead in its Decree, that "(u)ntil the proposed new prison facilities are ready to receive prisoners, a hearing will be held in open court every 30 days." It concluded with a requirement "that the (State) Parole Commission adopt some of the suggestions *423 made in this case for accelerating releases on parole."[FN2]
FN2. The request included some other minor changes in the previous Decrees, which were granted and which are therefore not involved in the appeals.
On April 24, 1981, the defendants submitted a revised plan under which, the defendants, in order to relieve overcrowding at the MHC and MRDCC institutions, would double cell, under certain conditions, at the new and modern Jessup Annex, in process of completion, and would double bunk some persons in the open dormitories at the MHC in order largely to meet "the cyclical overflow (of) inmates either backed up at local jails or excess population from the Reception Center."[FN3] The District Court denied both the request of the defendants for approval of their plan to relieve overcrowding by double celling at the new Jessup Annex and double bunking at the MHC and, also, refused to extend the time for compliance by the defendants. Almost simultaneously, by Order dated April 27, 1981, the District Court required the Parole Commission to parole "approximately fifty state prisoners to their federal detainers for service of federal sentences previously imposed" and the defendant prison officials to "transfer approximately fifty state prisoners who voluntarily agree to be transferred to the United States Bureau of Prisons in accordance with state and federal compacts." From both of these orders the defendants appealed.
FN3. It, also, renewed its request for an extension of time to make the necessary adjustments.
Along with these proceedings involving MHC and MRDCC, the defendants in the proceeding involving MCI-H requested an extension of time for compliance with the Consent Decree in that case to August 1, 1981, when, upon completion of the new Jessup Annex and the new Reception Center, it was expected that compliance at MCI-H could be achieved through double celling of transferees at the Jessup Annex. The District Court granted this request but limited the time for compliance to April 15, 1981. The defendants were prevented from meeting that deadline because of unavoidable delays in the completion of the Jessup Annex and the Reception Center. The District Court found the defendants in contempt and levied civil sanctions against them despite the delays in completion of the Jessup Annex and the Reception Center. From this order, too, the defendants appeal.
Since all three of the cases, consolidated in two actions, involve a single state-wide prison system, in which what is done at one institution interacts on the other institutions in the system, we consolidated the cases for appeal and now reverse in part and affirm in part the decrees in the cases:
The issues presented on appeal are:
(1) Did the District Court err in ruling that double celling at the Jessup Annex was unconstitutional and represented an invalid method of relieving overcrowding at the three prisons involved?
(2) Was the District Court in error in refusing to permit double bunking in certain of the dormitories in MHC?
(3) Did the District Court err in ordering the transfer of fifty inmates at MHC and MRDCC to federal prisons in its order of April 27, 1981?
Before dealing directly with the primary issues in controversy, it is necessary to take note of a preliminary contention of the plaintiffs. It is their position that the previous decrees of the District Court prohibited double celling and double bunking and such ruling is res judicata, subject only to modification or vacation if "circumstances (are) so changed that 'dangers once substantial, have become attenuated to a shadow' " and if, as a result of such new and unforeseen circumstances, "grievous wrong" will result from a refusal to modify or vacate the injunction. For this position, they rely on United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). In Swift, the Court did state the circumstances under which a court may modify its previous decree, but, in so doing, it made a sharp distinction between two *424 types of decrees. The first it described as the "continuing decree ... directed to events to come ... (involving) the supervision of changing conduct or conditions and are thus provisional and tentative;" the second it identified as the injunction granted to protect rights "fully accrued upon facts so nearly permanent as to be substantially impervious to change."[FN4] In the first case, modification under appropriate circumstances is clearly permissible; in the second the strict standard relied on by the plaintiffs is applied.[FN5] A familiar example of the first type is provided by Philadelphia Welfare Rights Org'n. v. Shapp, 602 F.2d 1114, 1121 (3d Cir. 1979), in which the Court said modification was proper where "(d)espite a good faith effort at compliance, circumstances largely beyond the defendants' control and not contemplated by the court or the parties ... (when the injunction was granted) put achievement of the ... timetable (as fixed in the injunction) beyond reach."[FN6] The question for purposes of decision here becomes, therefore, whether there have been, since the entry of the original Decree in these cases, changes either in operative facts or laws which cast a new light upon the facts or law as originally ruled on in these cases. Unquestionably, the Decrees involved here were in the very class described in Swift, in which the terms of the injunction were "provisional and tentative" subject to "changing conduct or conditions." Nor have we any difficulty in finding that there have been such changes both in law and in operative facts in these cases.
FN4. Id. at 114, 52 S.Ct. at 462.