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Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977) affirmed some aspects of the district judge's order requiring substantial improvements in the operation of the county jail, while reversing others. In approve ing most of the changes ordered by the district judge, the court stated: "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." 553 F.2d at 381. In response to defendants' complaint that they had insufficient funds to implement the court's order, the court stated: "This court recognizes that some of the improvements will be costly but 'inadequate resources can never be an adequate justification for depriving any person of his constitutional rights. 553 F.2d at 378. The court quoted from Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1972): "Where state institutions have been operating under unconstitutional conditions and practices, the defense of fund shortage(s) and the inability of the district court to order appropriations by the state legislature, have been rejected by the federal courts." 553 F.2d at 378.

Dimarzo v. Cahill, 575 F.2d 15 (1st Cir. 1978) held that the district court had properly required the defendants either to make specific improvements at the two prisons involved, or close them.

In Ruiz v. Estelle, 550 F.2d 238 (5th Cir. 1977), the district court had entered a preliminary injunction while the action was pending as a result of its finding that the plaintiffs were being treated as a special class of inmates by the officials of the department of corrections because of their instigation of and participation in the litigation. They had been subjected to threats, intimidation, coercion, punishment, and discrimination, all in the face of protective orders to the contrary by the district court. The district court's order which required that plaintiffs be

furnished with counsel substitute at disciplinary hearings and that they be given adequate food to prevent weight loss while they were confined in solitary confinement was affirmed by the court of appeals.

Newman v. State of Alabama, 559 F.2d 283 (5th Cir. 1977) held that the district court had erred in appointing a "Human Rights Committee" composed of thirtynine individuals which was authorized to monitor implementation of the standards prescribed by the court's decree. The court stated:

Our initial reaction is that "reviewing plans for implementation of this decree to ensure that they comport with minimum standards set forth" could more properly have been assigned to the magistrate or to a master, qualified to hold hearings, make findings of fact, and report to the Court for its approval or disapproval. Moreover, the authority to "take any action," with no accompanying standards or limitations, could amount, in practical effect, to turning the administration of the prisons over to the Committee, as, in some respects, appears to have occurred.

559 F.2d at 289.

Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) approved the establishment of a magistrate as ombudsman to act as a middleman between the inmates and the correctional staff. However, the court found that the trial court had erred in ordering that the ombudsman have permanent office. 563 F.2d at 753. The court also commented that the ombudsman should not have authority to intervene in daily prison operations.

The plaintiffs in Bolding v. Holshouser, 575 F.2d 461 (4th Cir. 1978), were twenty-nine prisoners incarcerated in thirteen penal institutions in various cities and towns in the state. Plaintiffs sought comprehensive declaratory and injunctive relief. The district court dismissed the complaint for failure to state a claim, further commenting that it was unwilling to "take under its control and management the

prison system (of North Carolina)." 575 F.2d at 463.
The court of appeals reversed. The court noted that
in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976), the Supreme Court had cautioned
against sweeping injunctions directed at state execu-
tive officials. However, the court found that Rizzo
did not preclude recourse to broad injunctions when
a clear pattern of unconstitutional conduct has been
established. The court stated: "We agree with the
holding in Newman v. Alabama,

that, notwithstanding Rizzo, class relief requiring sweeping changes in a state prison system may still be mandated when the proof requires such relief." 575 F.2d at 466.

Lewis v. Hyland, 554 F.2d 93 (3d Cir. 1977) affirmed the district court's denial of injunctive relief to plaintiffs, discrete classes of travelers upon New Jersey roads, who had shown they were subjected to callous indifference by the New Jersey State Police. The court noted that prior to the Supreme Court's opinion in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), it would have reversed the district court's denial of injunctive relief in light of plaintiff's demonstration of numerous violations of their constitutional rights. The court stated:

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Rizzo's focus was on the absence of any evidence of participation by the named defendants in a plan or scheme to suppress constitutional rights. Such a plan, once proved, could be enjoined in a federal court.

The Rizzo court refused to infer the existence of a plan of concerted action from the facts before it. A mere "failure to act [by responsible authorities) in the face of a statistical pattern" was found to provide no basis for injunctive relief.

554 F.2d at 98.

The court further stated:

Plaintiff's evidence here demonstrated at most an unfortunate insensitivity on the part

498

of responsible officials toward
reports of abuses by individual
Troopers. The department's
apparent obliviousness to citizens
complaints reinforces an impression
of official indifference. Beyond
these factors, however, and aside
from the statistical number of
incidents proved, there is no
evidence of a causal link between,
on the one hand, either the State
Police hierarchy or any department-
wide directive, and, on the other,
the constitutional violations.

554 F.2d at 101.

There was no error in denying injunctive relief in Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, 567 F.2d 1381, 1383 (8th Cir. 1977), where the court found no credible evidence that the defendant's former institutional policy of refusing to consider discretionary parole for an inmate with a legal action pending in the courts was being applied or would be applied in the future. However, present compliance with constitutional standards does not necessarily moot an injunction if the court determines that prior wrongful behavior is likely to recur. In Campbell v. McGruder, 580 F.2d 521, 543 (D.C. Cir. 1978), the court remanded for a determination if the anticipated overcrowding had in fact occurred. The court stated: "The decision whether defendants' illegal conduct is likely to recur lies in the equitable discretion of the District Court." 580 F.28 at 541. The court further said:

Given the history of defendants'
grudging resistance, the ineffec-
tiveness of their previous efforts
at compliance, and the "flagrant
and shocking" character of their
past violations, the District
Court was fully justified in
concluding that this case was
not moot.

580 F.2d at 541.

The court of appeals in Wolff v. McDonnell, 418 U.S. 539, 573, 94 S.Ct. 2963, 2983, 41 L.Ed.2d 935, 961 (1974) erred in holding that the due process requirements in prison disciplinary proceedings were to apply retroactively and that prior prison records containing determinations of misconduct were to be expunged. The Supreme Court determined that its decision should not receive retroactive application and that prior records need not be expunged. Similarly, there was no error in refusing to expunge from plaintiff's prison records disciplinary proceedings in which their constitutional rights were violated in that they were not given advance notice of the charges prior to their hearings in McKinnon v. Patterson, 568 F.2d 930, 935 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). The court stated that "the fact that the due process rights asserted by plaintiffs were not clearly established in 1973 cautions us against applying present standards 'so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged.'" 568 F.2d at 935.

The record considered on the motion for summary judgment in Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975) did not support the district court's order that plaintiff's FBI file be destroyed. Plaintiff, a sixteen-year-old high school student, had written a letter to the Socialist Labor Party seeking information about its policies as part of an assignment for a social studies course. She inadvertently addressed it to the Socialist Workers Party. The Assistant Postmaster General had placed a mail cover upon the Socialist Workers Party headquarters in New York City pursuant to a written request of the FBI. The foreman of delivery would record information appearing on the exterior of letters addressed to the Socialist Workers Party and forward the information to the FBI. The FBI was notified of plaintiff's letter and conducted an investigation which included interviews with the principal and vice-principal of plaintiff's school. Although it was subsequently recommended that the case be closed administratively, the investigation became well known in the school, the community, and the country. In ordering plaintiff's file destroyed the district court granted partial summary judgment in favor of plaintiff. The court found that plaintiff had standing to seek expungement of her file but the record compiled on the motion for summary judgment did not support the district court's order of expungement.

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