Duran (Peterson) v. Grisham ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 22, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DWIGHT DURAN,
Plaintiff - Appellee,
v. No. 20-2033
(D.C. No. 1:77-CV-00721-KK-SCY)
MICHELLE LUJAN GRISHAM; (D. N.M.)
ALISHA TAFOYA LUCERO,
Defendants - Appellees.
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DAVID S. PETERSON,
Objector - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH, Circuit Judges.
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David S. Peterson, an inmate proceeding pro se, appeals the district court’s
order approving the parties’ Second Revised Settlement Agreement (SRSA). The
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
SRSA modified a 1991 Consent Decree governing conditions in New Mexico’s state
prisons. We have jurisdiction, see 28 U.S.C. § 1291, and we affirm.
BACKGROUND
The district court summarized the extensive history of this litigation as
follows:
This is a class action originally brought in 1977 alleging violations of the
federal constitutional rights of certain inmates in the State of New Mexico’s
custody. By the parties’ agreement, the Court entered an order on July 15,
1980, noting that the Plaintiff class had been certified under Federal Rule of
Civil Procedure 23(b)(1) and (2), and redefining the class as:
all those inmates who are now, or in the future may be,
incarcerated in the Penitentiary of New Mexico at Santa Fe or
at any maximum, close, or medium security facility open for
operation by the State of New Mexico after June 12, 1980.
After extensive litigation, on June 10, 1991, the parties entered into a
settlement agreement resolving all then-pending motions. The Court issued
an order (“1991 Consent Decree”) adopting the parties’ agreement on
September 20, 1991. By July 16, 1999, all of the substantive requirements
in the 1991 Consent Decree had been satisfied and vacated, except for
certain restrictions on overcrowding. According to the decree, these
overcrowding restrictions were to remain in place in perpetuity.
The litigation was dormant from late 1999 to late 2015, when a class
member revived it by filing pro se motions for an emergency injunction and
a contempt order. Class counsel resumed active representation of the
Plaintiff class, and on August 5, 2016, with the assistance of [a magistrate
judge], the parties reached a settlement of the then pending disputes. The
Court approved this settlement on August 31, 2016.
Almost a year later, on July 5, 2017, class counsel filed Plaintiffs’ Motion
for Declaratory, Injunctive, and Remedial Relief regarding Violations of the
Court’s Stipulated Orders, alleging that Defendants were violating the 1991
Consent Decree and the parties’ 2016 settlement agreement. That motion
remains pending, as do two additional motions for declaratory, injunctive,
and remedial relief that class counsel later filed.
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The Plaintiff class has alleged ongoing violations of the Eighth and
Fourteenth Amendments to the United States Constitution, including
unreasonable risks to class members’ health and safety due to
overcrowding, violence, misclassification, disproportionate discipline,
understaffing, environmental conditions including vermin and
constitutionally inadequate bathroom facilities and plumbing,
constitutionally inadequate healthcare, and failure to timely release inmates
at prison facilities operated by the New Mexico Corrections Department
(“NMCD”).
Defendants opposed Plaintiffs’ motions. They also filed motions to dismiss
seeking termination of all prospective relief and an automatic stay on
December 5, 2018. However, Defendants subsequently withdrew these
motions without prejudice to allow the parties to pursue settlement
negotiations. The parties have conducted extensive investigation and
discovery regarding the claims and defenses raised in their respective
motions.
...
The parties . . . filed a second Joint Motion for Preliminary Approval of
Settlement Agreement on August 21, 2019. . . .
On August 28, 2019, the Court held a hearing on the parties’ August 21,
2019 motion. At the hearing, counsel and NMCD Cabinet Secretary Alisha
Tafoya Lucero made presentations and responded to the Court’s questions
regarding the parties’ agreement.
The Court entered an Order Granting Preliminary Approval of Class Action
Settlement Agreement, and Approving and Directing the Issuance of Notice
to Plaintiff Class Members (“Order Granting Preliminary Approval”) on
September 5, 2019. In its Order Granting Preliminary Approval, the Court
preliminarily held that the Revised Settlement Agreement was fair,
adequate, reasonable, and likely to meet the requirements of Federal Rule
of Civil Procedure 23(e) and the Prison Litigation Reform Act (“PLRA”),
18 U.S.C. § 3626.
The Court also approved the Notice to Plaintiff Class Members (“Notice”)
attached to the Order Granting Preliminary Approval and found that it
satisfied the requirements of Rule 23 and due process. The Court directed
Defendants to provide the Notice and Revised Settlement Agreement to
class members by posting them in English and Spanish in the law library,
general library, dining facilities, recreational facilities, and on a bulletin
board in every unit in every NMCD facility in New Mexico, from
September 24, 2019 through December 23, 2019. The Court further
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directed Defendants to provide the Notice and Revised Settlement
Agreement to each inmate housed in any segregated housing unit between
September 24, 2019 and December 23, 2019, in English or Spanish at the
inmate’s election.
Defendants provided notice of the proposed settlement to the Plaintiff class
as the Court directed, including at covered NMCD facilities operated by
private contractors. Defendants monitored whether the Notice and Revised
Settlement Agreement remained posted as prescribed during the objection
period and, when inmates at the Guadalupe County Correctional Facility
(“GCCF”) removed some posted copies, replaced them reasonably
promptly. In fact, Defendants went beyond the Court’s requirements to
ensure that all class members at GCCF received notice of the proposed
settlement, posting extra copies of the Notice and Revised Settlement
Agreement in the required locations and placing these documents on an
“inmate television systems information channel.”
In its Order Granting Preliminary Approval, the Court directed any class
member who wished to object to the Revised Settlement Agreement to file
his or her objections in writing by December 23, 2019 and directed
Defendants to allow class members to submit timely objections free of
charge.
Between September 12, 2019 and January 27, 2020, approximately 152
members of the Plaintiff class filed objections to the Revised Settlement
Agreement. . . .
The court has also carefully reviewed and considered the objections that
seven class members sent to class counsel between September 24, 2019 and
December 23, 2019 and later directed counsel to file.
R. at 89-94 (paragraph numbering, record citations and footnotes omitted).
The SRSA contained minor revisions to the Revised Settlement Agreement.
The district court determined the SRSA should be finally approved under the
standards set forth in Rule 23(e) and the PLRA. It made extensive findings in
support of approval of the settlement and found that none of the objections warranted
its disapproval. Peterson, who objected to the settlement, filed this pro se appeal.
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DISCUSSION
On appeal, Peterson raises six objections to the order approving the SRSA. He
argues that (1) the notice provided to class members under Fed. R. Civ. P. 23
contained inadequate information; (2) the 1991 Consent Decree was not terminable
under the PLRA; (3) the state violated the 1991 Consent Decree, because the cells at
the Clayton Prison do not provide 60 square feet of space per prisoner; (4) the SRSA
violates a New Mexico statute that limits prison population; (5) the Plaintiffs’ Class
Counsel abandoned the class by failing to make or support the arguments he now
raises; and (6) the district court lacked personal and subject-matter jurisdiction to
resume enforcement of this case in 2015.
Most of these arguments involve issues of law, which we review de novo. See
United States v. Finnesy, 953 F.3d 675, 682 (10th Cir. 2020) (district court’s
jurisdiction), cert. denied, ___S. Ct.___, 2021 WL 78262 (U.S. Jan. 11, 2021)
(No. 20-5746); C5 Medical Werks, LLC v. CeramTec GMBH, 937 F.3d 1319, 1322
(10th Cir. 2019) (personal jurisdiction); DeJulius v. N. Eng. Health Care Empls.
Pension Fund, 429 F.3d 935, 942 (10th Cir. 2005) (adequacy of settlement notice to
class members); May v. Segovia, 929 F.3d 1223, 1227 (10th Cir. 2019) (questions of
statutory interpretation, including proper interpretation of the PLRA); Jordan v.
Maxim Healthcare Servs., Inc., 950 F.3d 724, 730 (10th Cir. 2020) (district court’s
interpretation of state law). But, “[w]e review the district court’s decision to approve
a class settlement for an abuse of discretion.” Tennille v. W. Union Corp., 785 F.3d
422, 434 (10th Cir. 2015). This includes the issue of whether class counsel
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adequately represented the interests of the class. See Radcliffe v. Experian Info.
Sols., Inc., 715 F.3d 1157, 1168 (9th Cir. 2013).
1. Jurisdictional Issues
We begin with Peterson’s threshold challenges to personal and subject-matter
jurisdiction. He first argues that once the 1991 Consent Decree’s relief provisions
were satisfied, ongoing federal-court jurisdiction over the decree terminated. This
argument lacks merit. This case was reactivated in 2015 in response to a class
member’s complaint about alleged overcrowding. The Consent Decree itself had not
been vacated and its overcrowding provisions had never been terminated. Those
provisions were to exist in perpetuity and to remain “enforceable in any federal or
state court of competent jurisdiction.” Supp. R., Vol. 1 at 255. Although the parties
ultimately agreed through the SRSA to settle their differences on a wide range of
issues, the district court’s power to approve the SRSA arose from a permissible
exercise of the retained jurisdiction specified in the parties’ settlement agreement and
incorporated in the 1991 Consent Decree.
Peterson next argues that the class member who complained in 2015 failed to
exhaust his prison remedies, as the PLRA requires. But he fails to show that the
PLRA’s exhaustion requirement applies to Class Counsel’s subsequent efforts to
enforce the Consent Decree. See 42 U.S.C. § 1997e(a) (“No action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” (emphasis added)); see, e.g.,
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Clark v. California, 739 F. Supp. 2d 1168, 1232 (N.D. Cal. 2010) (concluding neither
defendants’ motion to terminate a pre-PLRA consent decree, nor inmates’ motion to
enforce it, triggered PLRA’s exhaustion requirement).1
Peterson also asserts that the district court lacked personal jurisdiction over the
defendants and the class members, because no new complaint was filed or served.
But Class Counsel’s efforts to enforce the Consent Decree did not require service of a
new complaint. See Floyd v. Ortiz, 300 F.3d 1223, 1227 (10th Cir. 2002) (holding
motion seeking to enforce consent decree did not require service of a new complaint).
Peterson next contends no statute or constitutional provision grants
subject-matter jurisdiction over this proceeding. We previously recognized that the
underlying action that produced the 1991 Consent Decree was founded on
federal-question jurisdiction. See Duran v. Carruthers, 885 F.2d 1485, 1486
(10th Cir. 1989) (noting jurisdiction was based on 28 U.S.C. § 1331). Peterson fails
to show that this recognition was erroneous. And, as we have noted, the district court
exercised its retained jurisdiction to approve the SRSA.
Finally, Peterson argues the Eleventh Amendment bars this action to enforce
what he refers to as a settlement contract between the class members and the State of
New Mexico. We previously held that the Eleventh Amendment did not require the
1
In a single sentence, Peterson complains that “[n]o free process was
requested nor a filing fee paid” in connection with the reactivation of the case. Aplt.
Opening Br. at 11. Even if we were to consider this undeveloped argument, Peterson
fails to show that Class Counsel was required to pay a filing fee in order to seek
reactivation or enforcement within this action of the 1991 Consent Decree.
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district court to vacate a previous consent decree entered in this case on July 14,
1980. See Duran, 885 F.2d at 1489-91 (rejecting Eleventh Amendment challenge to
1980 consent decree under doctrine of Ex parte Young, 209 U.S. 123 (1908)). The
same rationale applies to enforcement of the 1991 Consent Decree.
2. Notice to Class Members
The district court approved “the form and content of the notice as satisfying
the requirements of [Rule 23] and due process.” R. at 86 (internal quotation marks
omitted). But Peterson complains that the Rule 23 notice failed to provide class
members with adequate historical facts and legal analysis to permit them to make a
knowing and intelligent decision concerning the settlement. Specifically, he
contends the notice failed to (1) include a copy of the 1991 settlement agreement;
(2) discuss a PLRA provision concerning private settlement agreements; (3) identify
or discuss a New Mexico statute concerning prison overcrowding; (4) provide copies
of the documents or pleadings filed in this case; and (5) discuss alternatives to
settlement, given the defendants’ alleged violations of the Consent Decree.
None of these arguments has merit. The notice informed class members about
the 1991 settlement agreement, its overcrowding provisions that were intended to be
perpetual, and the risk that these provisions could be terminated under the PLRA if a
settlement were not achieved. See Supp. R., Vol. 2 at 29-30. Also, for reasons we
discuss elsewhere in this order and judgment, Peterson misunderstands the effect of
the statutes he cites—the PLRA provision concerning private settlement agreements
and a New Mexico statute concerning overcrowding. The notice was not deficient
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for failing to discuss these provisions. The notice provided to class members was
adequate.
3. Consent Decree and PLRA
Peterson argues that the 1991 Consent Decree was “ended” or “wiped out,”
Aplt. Opening Br. at 3, 5, leaving only “a contract between the State and its
prisoners,” id. at 5. He contends this contractual agreement is exempt from PLRA’s
termination provisions, citing 18 U.S.C. § 3626(c)(2), which exempts private
settlement agreements from PLRA’s limitations on relief.
First, his contention that the 1991 Consent Decree was terminated is incorrect;
as we have noted, its overcrowding provisions were designed to remain in effect even
after the other provisions were vacated. More importantly, although the parties did
reach a settlement agreement in 1991, which was incorporated into the 1991 Consent
Decree, the Consent Decree does not meet the PLRA’s definition of a “private
settlement agreement,” which only applies to agreements that are not generally
subject to judicial enforcement, see id. § 3626(g)(6). Rather, it is a “consent decree”
under the statute, because it provides “relief entered by the court that is based in
whole or in part upon the consent or acquiescence of the parties,” id. § 3626(g)(1)
(emphasis added). Because the 1991 Consent Decree was entered by the court and
provided for prospective relief, it is subject to the PLRA’s termination provisions.
Peterson’s argument therefore lacks merit.
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4. Size of Cells at Clayton Prison
Peterson contends the State of New Mexico breached the 1991 Consent Decree
by providing less than 60 square feet per prisoner at the Northeastern New Mexico
Correctional Facility in Clayton. But the factual record presented in this case
disproves his argument. See Supp. R., Vol. 3 at 20 (stating that double-celled
inmates at Clayton Prison are provided with over 120 square feet of space). To the
extent Peterson argues that each inmate in double cells has only approximately
51 square feet of unencumbered space, he fails to show that the 60-foot requirement
in the 1991 Consent Decree applies to unencumbered space.
5. New Mexico Corrections Population Control Act
The SRSA limits prison population to 120 percent of capacity. Peterson
argues this violates the Corrections Population Control Act, a New Mexico statute
that he claims limits a prison’s population to 100 percent of its capacity. See N.M.
Stat. Ann. § 33-2A-6 (2002). But as the district court noted, § 33-2A-6 does not
actually limit New Mexico prisons to 100 percent of capacity. Instead, the statute
provides certain mechanisms that “shall be taken to reduce capacity” where the
inmate population “exceeds one hundred percent of rated capacity for a period of
thirty consecutive days.” Id. The district court correctly interpreted New Mexico
law to reach its conclusion that “far from conflicting with the [SRSA], [§ 33-2A-6]
actually provides a mechanism Defendants may use to reduce excessive prisoner
population and thereby remain in compliance with the [SRSA’s] cap” and the SRSA
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“in no way purports to override or abrogate [§ 33-2A-6’s] requirements.” R. at 86.
Peterson’s challenge lacks merit.
6. “Abandonment” by Plaintiffs’ Class Counsel
The district court determined that Class Counsel adequately represented the
class. See Fed. R. Civ. P. 23(e)(2)(A). Peterson disagrees; he argues instead that
counsel abandoned the class. He complains, first, that counsel failed to raise the
square-feet-per-prisoner issue at Clayton Prison. But, as we have seen, that issue
lacks merit. Counsel’s failure to raise it therefore did not amount to inadequate
representation.
Peterson next complains that Class Counsel “refused to defend the 1991
settlement contract” and failed to react “when the state violated the 1991 settlement
contract [by using] a 1996 law to attack the contract,” presumably referring to the
PLRA’s termination provision. Aplt. Opening Br. at 10. This argument appears to
rest on Peterson’s mistaken belief that the 1991 Consent Decree was exempt from
termination under the PLRA. To the contrary, Class Counsel correctly informed
class members of the high risk that the Consent Decree could be terminated under the
PLRA and negotiated the binding and enforceable benefits for the class contained in
the SRSA.
Peterson also argues that Class Counsel failed to assert the district court’s lack
of jurisdiction under the Eleventh Amendment, failed to raise the alleged violation of
the New Mexico Corrections Population Control Act, and failed to allow the class to
make a knowing and intelligent decision concerning the SRSA. But as we have seen,
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these issues also lack merit, and class counsel did not behave inadequately insofar as
they are concerned. Peterson fails to show the district court erred in concluding that
Class Counsel “fairly, adequately, zealously, and effectively” represented the class.
R. at 87.
CONCLUSION
We affirm the district court’s decision approving the SRSA.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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20-2033, Duran v. Grisham
TYMKOVICH, Chief Judge, dissenting.
I dissent from the majority’s order and judgment because I believe the
district court did not have subject-matter jurisdiction to approve the Second
Revised Settlement Agreement (“SRSA”).
“Federal courts are courts of limited jurisdiction . . . . It is to be presumed
that a cause lies outside this limited jurisdiction, and the burden of establishing
the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).
District courts retain jurisdiction under federal law to enforce their consent
decrees, but this does not give them “free-ranging ancillary jurisdiction” to do as
they please. Keepseagle v. Vilsack, 815 F.3d 28, 33 (D.C. Cir. 2016) (internal
quotation marks omitted). Instead, district courts possess only two types of
authority over consent decrees: (1) to “interpret and enforce a decree to the extent
authorized either by the decree or by the related order” and (2) to “modify a
decree pursuant to Federal Rule of Civil Procedure 60(b)(5).” Pigford v.
Veneman, 292 F.3d 918, 923 (D.C. Cir. 2002).
The district court certainly had jurisdiction to enforce the extant provisions
of the 1991 Consent Decree. This was the sole jurisdictional basis on which the
district court justified returning to the case in 2016. The scope of this jurisdiction
is narrow: to enforce the overcrowding provisions that were set to last in
perpetuity. See Keepseagle, 815 F.3d at 36 (warning an agreement does not
“confer[] jurisdiction on the District Court unless the conduct at issue involves
one of the specified, narrow ways in which the Court maintained jurisdiction”
over that agreement). The SRSA, however, reaches out and touches on a wide
range of unrelated topics—cleanliness, toilet-to-inmate ratios, job fairs, and
calculation of good time, just to name a few. It far exceeds the court’s
enforcement authority.
Furthermore, the district court was not exercising its authority to modify
the decree pursuant to Rule 60(b)(5). Rule 60 allows courts “[o]n motion and
just terms” to “relieve a party . . . from a[n] . . . order” if applying it
prospectively is no longer equitable. Fed. R. Civ. P. 60(b)(5) (emphasis added).
But neither of the parties brought a motion for modification of the consent decree
here. Instead, the class sought to enforce the overcrowding provisions from the
1991 Consent Decree. Then, under the auspices of enforcement, the parties
engaged in settlement negotiations stretching far beyond the district court’s
limited jurisdiction. In seeking approval of the SRSA, the parties side-stepped
the proper process under Rule 60, using the court’s enforcement jurisdiction to
resolve claims unrelated to the 1991 Consent Decree.
If the parties want to settle new claims, they can contract and then seek
enforcement in state court. But simply because the federal district court retained
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jurisdiction over the 1991 Consent Decree does not justify the court now giving
its imprimatur to the new issues addressed in the SRSA.
For the foregoing reasons, I respectfully dissent from the majority’s order
and judgment.
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