the Para-Professional Law Clinic at Sci-Graterford v. Jeffrey A. Beard, Secretary of Corrections of the Commonwealth of Pennsylvania

PRECEDENTIAL
Filed July 1, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2788
THE PARA-PROFESSIONAL LAW CLINIC AT
SCI-GRATERFORD; H. WILLIAMS, AF-2935; WALTER
DOBSON, AF-4135; D. GREENE, AF-5712; M. TWIGGS,
AF-6967; C. DIGGS, AK-7945; R. WILLIAMS, AM-1008; C.
BOYD, AM-9051; C. JOHNSON, AP-2785; W. FINNIGAN,
AS-0826; A. PHILLIPS, AS-1767; K. MINES, AY-5941; J.
PACE, AY-6445; R. WALKER, AY-8060; R. ORTIZ,
BL-0305; C. BASSETT, BV-2576; J. ANDERSON,
BW-7671; T. HENDERSON, CP-0814; W. DURHAM,
DB-6750; T. MOTT, DE-1624; J. FIGUEROA, DZ-5832;
ZEBBIE CLIFTON, AF-5043; BEBLEY WELLS, AM-0253
v.
JEFFREY A. BEARD, SECRETARY OF CORRECTIONS OF
THE COMMONWEALTH OF PENNSYLVANIA; DONALD T.
VAUGHN, SUPERINTENDENT OF THE STATE
CORRECTIONAL INSTITUTION AT GRATERFORD (SCI-
GRATERFORD); MANUEL A. ARROYO, DEPUTY
SUPERINTENDENT FOR CENTRALIZED SERVICES AT
SCI-GRATERFORD
THE PARA-PROFESSIONAL LAW CLINIC AT
SCI-GRATERFORD; H. WILLIAMS, AF-2935; WALTER
DOBSON, AF-4135; D. GREENE, AF-5712; M. TWIGGS,
AF-6967; C. DIGGS, AK-7945; R. WILLIAMS, AM-1008; C.
BOYD, AM-9051; C. JOHNSON, AP-2785; W. FINNIGAN,
AS-0826; A. PHILLIPS, AS-1767; K. MINES, AY-5941; J.
PACE, AY-6445; R. WALKER, AY-8060; R. ORTIZ,
BL-0305; C. BASSETT, BV-2576; J. ANDERSON,
BW-7671; T. HENDERSON, CP-0814; W. DURHAM,
DB-6750; T. MOTT, DE-1624; J. FIGUEROA, DZ-5832;
Appellants

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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 78-cv-00538
District Judge: The Honorable Berle M. Schiller
Argued April 8, 2003
Before: BECKER,* BARRY and BRIGHT,** Circuit Judges
(Opinion Filed: July 1, 2003)
Angus R. Love, Esq. (Argued)
Pennsylvania Institutional Law
Project
924 Cherry Street, Suite 523
Philadelphia, PA 19107
Attorney for Appellants
John O.J. Shellenberger, III, Esq.
(Argued)
Office of Attorney General of
Pennsylvania
21 South 12th Street
Philadelphia, PA 19107
Attorney for Appellees
OPINION OF THE COURT
BARRY, Circuit Judge:
At issue in this appeal is whether a permanent
injunction, currently in effect and requiring that the Para-
Professional Law Clinic (“Clinic”) at the State Correctional
Institute at Graterford, Pennsylvania (“Graterford”) remain
* Judge Becker completed his term as Chief Judge on May 4, 2003.
** The Honorable Myron H. Bright, Senior Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
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open, is necessary to correct “current and ongoing”
violations of the inmates’ constitutional right of access to
the courts. The plaintiffs — the Clinic and 22 inmates all
but one of whom are members of the Clinic — concede that
the rights of inmates at Graterford are not currently being
violated. They argue, instead, that those rights will be
violated if the injunction is lifted, because they predict that
the defendant state officials will then proceed to abolish the
Clinic. A prediction, however, is not enough to forestall the
termination of the injunction because the defendants’
future plans, if plans they be, do not constitute a current
and ongoing violation of the inmates’ rights as required by
the Prison Litigation Reform Act of 1995 (“PLRA”). Moreover,
even if the defendants do abolish the Clinic, the inmates’
constitutional right to access the courts will not necessarily
be violated. We, therefore, will affirm the order of the
District Court granting defendants’ motion to terminate the
injunction.
I.
The Para-Professional Law Clinic at the State
Correctional Institute at Graterford was founded by a group
of inmates in 1971 to provide other inmates, primarily
those who were illiterate, with legal assistance. It was
incorporated in 1976 as a non-profit corporation under
Pennsylvania law for the purpose of providing legal services
to Graterford inmates.
The Clinic is governed by a board of directors composed
largely of inmate officers elected by the Clinic’s inmate
members. The twenty-one inmates who currently work for
the Clinic assist other inmates with legal matters including
post-conviction relief and habeas petitions, parole matters
and civil rights actions. They are compensated for this work
as they would be for any other Department of Corrections
work assignment.
In December of 1977, state officials decided to close the
Clinic, effective February 15, 1978. In the interim, the
Clinic was to accept no new cases and its work was to be
phased out. The then-plaintiffs, inmates at Graterford, went
to federal court to challenge the closing and, on February
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17, 1978, Chief Judge Joseph S. Lord, III issued a
preliminary injunction ordering that the Clinic be re-
opened. Wade v. Kane, 448 F.Supp. 678, 685 (D.C. Pa.
1978). On July 31, 1986, in a case consolidated with Wade,
Judge Lord held an evidentiary hearing and, on March 25,
1987, permanently enjoined the closing of the Clinic or any
of its facilities or offices. United States of America ex rel.
Para-Professional Law Clinic v. Kane, 656 F. Supp. 1099,
1108 (E.D. Pa. 1987). Judge Lord based the injunction on
his conclusion that the Clinic was integral to inmates’
access to the courts, in particular inmates who were
functionally illiterate or housed in administrative or
disciplinary custody.
Just over ten years later, on April 26, 1996, the Prison
Litigation Reform Act of 1995 was signed into law as Title
VIII of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996. Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). Congress
enacted the PLRA in an apparent effort (1) to discourage
prisoners from filing frivolous lawsuits which strain the
judiciary’s scarce resources and (2) to end the federal
courts’ perceived micro-management of our nation’s
prisons. Imprisoned Citizens Union v. Ridge, 169 F.3d 178,
189 (3d Cir. 1999). The provision of the PLRA at issue in
this case, and we turn to that shortly, reduces the federal
courts’ oversight role by limiting the courts’ authority to
award prospective relief in cases challenging conditions at
prison facilities, as well as the courts’ continued ability to
enforce previously entered consent decrees and injunctions
in such cases. Miller v. French, 530 U.S. 327, 347 (2000);
Cason v. Seckinger, 231 F.3d 777, 780 (11th Cir. 2000).
According to the relevant House Conference Report, the
purpose of the provision is to ensure that “prison condition
remedies do not go beyond the measures necessary to
remedy federal rights violations and that public safety and
criminal justice needs are given appropriate weight in
framing such remedies.” H.R. Conf. Rep. No. 104-378, at
166 (1995).
On February 14, 2001, the defendants moved to
terminate Judge Lord’s 1987 injunction pursuant to
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Section 802 of the PLRA, codified at 18 U.S.C. § 3626,
which provides in relevant part that “[i]n any civil action
with respect to prison conditions in which prospective relief
is ordered, such relief shall be terminable upon the motion
of any party or intervenor . . . in the case of an order issued
on or before the date of enactment of the Prison Litigation
Reform Act, 2 years after such date of enactment.” 18
U.S.C. § 3626(b)(1)(A)(iii).
Plaintiffs opposed the motion, arguing that the following
exception applied: “Prospective relief shall not terminate if
the court makes written findings based on the record that
prospective relief remains necessary to correct a current
and 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.” 18 U.S.C. § 3626(b)(3). Plaintiffs did not claim
that there was a current and ongoing violation of their right
of access to the courts; indeed, they conceded there was
not because, in their view, the Clinic prevented such a
violation from occurring. They argued that Section
3626(b)(3) nevertheless applied, because if the injunction
were lifted, defendants would close the Clinic and would fail
to replace it with an adequate substitute.1
District Court Judge Berle M. Schiller held an evidentiary
hearing on the motion to terminate the injunction and, in
a Memorandum and Order dated May 29, 2002, rejected
plaintiffs’ argument that the contemplated closure of the
Clinic established that there was a “widespread, current,
and ongoing” violation of inmates’ right of access to the
courts at Graterford as would be required to continue the
injunction. This appeal followed.
1. The only evidence of the defendants’ plans appears to be the
deposition testimony of Jeffrey A. Beard, Pennsylvania’s Secretary of
Corrections. Mr. Beard testified that he intended to close the clinic “[a]t
some point in time,” but that the closure would not be “precipitous.” He
explained that defendants planned to “take a look at what services
they’re providing, who they’re providing the services, what’s going on and
figure a way to phase them out, so to speak, and to move the service
over to the law library and to do it in a planned and in a structured
fashion.”
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II.
In order to prevail before us, plaintiffs would have to
show that the words “current and ongoing” in Section
3626(b)(3) encompass a situation such as theirs, in which
there is no current violation, but in which defendants have
acknowledged that they intend to make changes which
would be barred by the injunction put into place to prevent
such a violation.
We conclude that the plain meaning of the words
“current and ongoing” used in the PLRA does not
encompass future violations. This interpretation is
supported by the statute’s history. As originally enacted in
1996, Section 3626(b)(3) provided that courts could avoid
termination if the record showed a current or ongoing
violation. In 1997, the section was amended to require a
current and ongoing violation. The House of
Representatives Conference Report explains the reason for
the change as follows:
The provision also includes a change in subsection
(b)(3) that corrects the confusing use of the word “or”
to describe the limited circumstances when a court
may continue prospective relief in prison conditions
litigation to make clear that a constitutional violation
must be “current and ongoing.” These dual
requirements are necessary to ensure that court orders
do not remain in place on the basis of a claim that a
current condition that does not violate prisoners’
Federal rights nevertheless requires a court decree to
address it, because the condition is somehow traceable
to a prior policy that did violate Federal rights, or that
government officials are “poised” to resume a prior
violation of federal rights. If an unlawful practice
resumes or if a prisoner is in imminent danger of a
constitutional violation, the prisoner has prompt and
complete remedies through a new action filed in State
or Federal court and preliminary injunctive relief.
H.R. Conf. Rep. No. 105-405, at 133 (1997). According to
the Conference Report, then, the fact that Graterford may
be poised to eliminate the Clinic and, thus, at least
potentially to again violate federal rights, does not make the
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injunction necessary to correct a current and ongoing
violation. This comports with what the First Circuit has
characterized as Congress’ “ambient intent” in enacting the
PLRA, namely, “to truncate the federal judiciary’s
involvement in prison administration.” Inmates of Suffolk
County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997).
Other Courts of Appeals which have addressed this
question have similarly concluded that Section 3623(b)(3)
does not apply unless the defendants are currently violating
the plaintiffs’ rights. See Castillo v. Cameron County, Tex.,
238 F.3d 339, 353 (5th Cir. 2001); Cason, 231 F.3d at 784;
Inmates of Suffolk County Jail, 129 F.3d at 662.
Plaintiffs’ arguments fail for a second reason, a reason
related to the particular constitutional right involved,
namely the right of access to the courts. Even if defendants
were eventually to close the Clinic, the inmates’
constitutional rights will not be violated merely because of
the closure. Inmates do not have a constitutional right to
the Clinic per se. Lewis v. Casey, 518 U.S. 343, 350
(1996)(prisoners have a right of access to the courts, not to
a law library or to legal assistance). Should defendants
replace the Clinic with an alternative program, that
program “would remain in place at least until some inmate
could demonstrate that a nonfrivolous legal claim had been
frustrated or was being impeded.” Id. at 353.
All this having been said, and without minimizing
defendants’ expressed concerns about the potential security
problems posed by certain aspects of the Clinic’s current
operation, we encourage defendants in the strongest
possible terms to reconsider any plan they may have to
close the Clinic.2 The District Court summarized the
situation at Graterford as follows:
The record shows that Graterford’s two law libraries
are chronically under-staffed and intermittently subject
to closure. Despite the marked increase in inmate
2. The security concerns arise out of the relatively minimal staff
supervision of Clinic activities, the fact that the Clinic involves inmates
supervising other inmates, and the unsupervised mobility of Clinic
members.
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population, especially Hispanic inmates, since entry of
the preliminary injunction in 1978, there is no official
mechanism of language translation currently in use at
Graterford. The inmates in the Mental Health and
Special Needs Units receive virtually no legal assistance
through Graterford, other than from the [Clinic]. It is
unlikely that such inmates could submit written
requests for photocopies of specific documents from the
law library without assistance, and it is equally
unlikely that the “staff paralegal” would be able to help
them do so. Even if the current occupant of that
position were qualified for the job, she would have
trouble finding the time, since she is assigned to two
positions at Graterford and works at seven different
institutions in addition to her positions at Graterford.
U.S. ex rel. Paraprofessional Law Clinic v. Beard, No. 78-
538, 2002 WL 1160757, at *6 (E.D. Pa. May 30, 2002). The
District Court concluded that the Clinic is an integral part
of the system of access at Graterford, that both inmates
and staff rely on it heavily for legal assistance, including for
research and document production, and that the services
provided by the Clinic “supplement the otherwise
inadequate and unreliable services provided by Graterford
itself.” Id. In light of these findings, we urge the defendants
to pay close attention to the District Court’s prediction that,
if the defendants were to close the Clinic, they would need
to completely overhaul the system of legal assistance at
Graterford to ensure that inmates have the requisite access
to the courts. The Clinic provides a valuable service both to
the inmates whom it assists and to the courts before whom
the inmates’ cases come, including this Court. Indeed, it
points with pride to a list of 130 “Favorable Results,” a list
that we are told “is not exhaustive of the [Clinic’s] victories
or areas in which we provide legal help.” If the Clinic is
closed and that closure serves to adversely affect the
prisoners’ constitutional right of access to the courts, this
would likely cause more litigation and the intervention, yet
again, of the federal courts. We encourage the defendants
to bear this in mind as they weigh their options going
forward.
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The District Court’s order of May 29, 2002 will be
affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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