Cheryl Klinger v. Dept. of Corrections , 107 F.3d 609 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
____________
No. 96-1241
____________
Cheryl Klinger; Linda Lange; *
Gweniver Lay; Stacy Finn, *
*
Appellants, *
*
v. *
*
Department of Corrections; *
Harold W. Clarke, Director; *
Larry Tewes, Assistant *
Director, Nebraska Department *
of Correctional Services and *
former Acting Superintendent *
of Nebraska Center for Women; *
Victor Lofgreen, Former *
Superintendent of Nebraska *
Center for Women; Larry Wayne, * Appeals from the United States
Superintendent of Nebraska * District Court for the
Center for Women; Judith * District of Nebraska
Danielsen, Psychologist, *
Nebraska Center for Women; *
Margaret Wehland, Medical *
Nurse, Nebraska Center for *
Women, *
*
Appellees. *
*
------------------------------- *
*
State of Alabama; State of *
California; State of Louisiana; *
State of Maryland; State of *
Minnesota; State of Missouri; *
State of Nevada; State of New *
Mexico; State of North Dakota; *
State of South Dakota; State *
of Vermont, State of Alaska, *
*
Amici Curiae. *
____________
No. 96-1243
____________
Cheryl Klinger; Linda Lange; *
Gweniver Lay; Stacy Finn, *
*
Appellees, *
*
v. *
*
Department of Corrections; *
Harold W. Clarke, Director, *
*
Defendants. *
*
Larry Tewes, Assistant *
Director, Nebraska Department *
of Correctional Services and *
former Acting Superintendent *
of Nebraska Center for Women; *
Victor Lofgreen, Former *
Superintendent of Nebraska *
Center for Women, *
*
Appellants, *
*
Larry Wayne, Superintendent of *
Nebraska Center for Women; *
Judith Danielsen, Psychologist, *
Nebraska Center for Women; *
Margaret Wehland, Medical *
Nurse, Nebraska Center for *
Women, *
*
Appellees. *
*
------------------------------- *
*
State of Alabama; State of *
California; State of Louisiana; *
State of Maryland; State of *
Minnesota; State of Missouri; *
State of Nevada; State of New *
Mexico; State of North Dakota; *
State of South Dakota; State *
of Vermont, State of Alaska, *
*
Amici Curiae. *
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____________
Submitted: September 9, 1996
Filed: February 25, 1997
____________
Before McMILLIAN, MAGILL and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
____________
McMILLIAN, Circuit Judge.
Women prisoners, incarcerated at the Nebraska Center for Women
(NCW), brought this § 1983 action in the United States District
Court1 for the District of Nebraska, alleging, among other things,
that defendants, the Nebraska Department of Correctional Services
(DCS) and several DCS officials, violated their rights under the
equal protection clause and Title IX of the Education Amendments,
20 U.S.C. §§ 1681-1688, by failing to provide equal educational
opportunities for male and female Nebraska prisoners, and that
defendants violated their constitutional right of meaningful access
to the courts by failing to provide an adequate law library at NCW.
After holding a bench trial on liability issues, the district court
issued an opinion in Klinger v. Nebraska Dep't of Correctional
Servs., 824 F. Supp. 1374 (D. Neb. 1993) (Klinger I), rev'd, 31
F.3d 727 (8th Cir. 1994) (Klinger II), cert. denied, 115 S. Ct.
1177 (1995), and certified certain questions to this court for
interlocutory review. On appeal in Klinger II, we reversed the
district court's finding of an equal protection violation and
remanded the case to the district court, which thereafter issued
three more opinions. Id., 887 F. Supp. 1281 (D. Neb. 1995)
(Klinger III); id., 902 F. Supp. 1036 (D. Neb. 1995) (Klinger IV);
id., 909 F. Supp. 1329 (D. Neb. 1995) (Klinger V). Following the
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.
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district court's entry of final judgment, the parties filed the
present appeal and cross-appeal. Plaintiffs appeal from the
district court's judgment in favor of defendants on plaintiffs'
Title IX claim. For reversal, plaintiffs argue that the district
court erroneously concluded that our decision in Klinger II
required judgment in favor of defendants on the Title IX claim.
Individual defendants Victor Lofgreen and Larry Tewes cross-appeal
from the district court's judgment in favor of plaintiffs on
plaintiffs' access-to-courts claim, for which defendants Lofgreen
and Tewes were held personally liable to pay $2.00 in nominal
damages and plaintiffs were awarded $40,642.44 in attorneys' fees
and expenses. For reversal, defendants Lofgreen and Tewes argue
that (1) plaintiffs failed to establish a constitutional violation
as a matter of law because there was no complete and systemic
denial of access or because plaintiffs suffered no actual injury,
(2) they are protected by qualified immunity from personal
liability for damages, and (3) the award of attorneys' fees and
expenses is unreasonable under Farrar v. Hobby, 506 U.S. 103
(1992). Upon careful review and for the reasons set forth below,
we now affirm the district court's judgment in favor of defendants
on plaintiffs' Title IX claim, reverse the district court's
judgment in favor of plaintiffs on their access-to-courts claim,
and vacate the award of attorneys' fees and expenses.
Background
The background facts of this case are set forth in detail in
the district court's opinion in Klinger I, 824 F. Supp. at 1380-86,
and are partially and more briefly summarized in the remaining
opinions cited above. For purposes of this appeal, the following
is a summary of the procedural history of this case. In 1988, four
NCW inmates, acting pro se, initiated this § 1983 action. The
district court appointed counsel and certified the plaintiff class,
which includes all persons incarcerated at NCW on or after
January 1, 1988. NCW is the only Nebraska prison for women;
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accordingly, all women incarcerated in Nebraska are housed at NCW.2
In their amended complaint, plaintiffs alleged that the educational
and vocational training opportunities at NCW were inferior to those
of male inmates at the Nebraska State Penitentiary (NSP).
Consistent with plaintiffs' limited factual allegations, the
district court confined plaintiffs' equal protection and Title IX
claims to a comparison between NCW and NSP. Klinger I, 824
F. Supp. at 1388 & n.14. Plaintiffs also alleged, among other
things, that defendants had failed to provide NCW inmates with an
adequate law library or assistance from persons trained in the law.
After the district court granted partial summary judgment to
defendants, the case proceeded to trial, which the district court
had bifurcated into a liability phase and a remedial phase.
Following a four-week trial on liability issues, the district court
concluded that plaintiffs had proven an equal protection violation,
a Title IX violation, and a deprivation of their right of
meaningful access to the courts. Id. at 1466-69. The district
court found defendants Frank Gunter and Harold Clarke personally
liable for the equal protection and Title IX violations, id. at
1466, and defendants Lofgreen and Tewes personally liable for the
access-to-courts violation, notwithstanding their claims of
qualified immunity, id. at 1468-69.
Pursuant to 28 U.S.C. § 1292(b), the district court then
certified to this court three issues of law related to the equal
protection claim. On interlocutory appeal, this court reversed the
district court's finding of liability on the equal protection claim
and dismissed that claim. Klinger II, 31 F.3d at 734. This court
reasoned that "NSP and NCW are different institutions with
DCS also runs two co-ed work release centers which are not
enclosed secured prisons and which the district court determined
were not relevant to the issues in this litigation. See Klinger v.
Nebraska Dep't of Correctional Servs., 887 F. Supp. 1281, 1282 n.2
(D. Neb. 1995).
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different inmates each operating with limited resources to fulfill
different specific needs. Thus, whether NCW lacks one program that
NSP has proves almost nothing." Id. at 732 (citation omitted).
"[C]omparing programs at NSP to those at NCW is like the proverbial
comparison of apples to oranges." Id. at 733. This court thus
concluded that plaintiffs' equal protection claim failed as a
matter of law because inmates at NCW and inmates at NSP are not
"similarly situated." Id.
After the case was remanded to the district court, plaintiffs
sought permission to recharacterize their equal protection claims
as Title IX claims. Klinger III, 887 F. Supp. at 1285. The
district court instead sua sponte elected to reverse its earlier
finding of a Title IX violation. Id. The district court reasoned
that the holding of Klinger II destroyed the probative force of the
evidence upon which it relied in deciding both the equal protection
and the Title IX claims (i.e., the comparative inequality between
NSP and NCW educational and vocational training programs). Id.
The case then proceeded to the second phase of the trial (the
remedial phase) which, by this time, had been narrowed to assessing
damages resulting from the access-to-courts violation. Following
a bench trial, the district court set forth findings of fact and
conclusions of law, Klinger IV, 902 F. Supp. at 1039-45, and
established a schedule for resolving the issue of attorneys' fees,
id. at 1045-46. On the access-to-courts issue, the district court
found that the general inmate population at NCW had been completely
and systematically denied meaningful access to the courts for the
time period prior to January 1989. Id. at 1043. However, because
there was no evidence that anyone suffered any actual injury as a
result of the deprivation, and there was no evidence to show that
defendants Lofgreen or Tewes acted deliberately or with reckless
indifference to the rights of the general population prisoners, the
district court awarded only $1.00 in nominal damages. Id. at
1043-44. The district court separately found that segregation and
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orientation inmates were also completely and systematically denied
meaningful access to the courts. Id. at 1044-45. The district
court reasoned that, although those inmates theoretically could
order law books, the privilege was meaningless because those
inmates were not provided any legal assistance or access to a law
library. Id. at 1045. The district court then awarded the
segregation and orientation inmates $1.00 in nominal damages. Id.
Citing Bounds v. Smith, 430 U.S. 817 (1977), and Reutcke v. Dahm,
707 F. Supp. 1121 (D. Neb. 1988), the district court also
reaffirmed its earlier rejection of Lofgreen's and Tewes's
qualified immunity defense. Klinger IV, 902 F. Supp. at 1040
(citing Klinger I, 824 F. Supp. at 1469).
Following the parties' submission of briefs on the attorneys'
fees issue, the district court filed a written decision awarding
plaintiffs $37,084.92 in attorneys' fees and $3,557.52 in expenses.
Klinger V, 909 F. Supp. at 1342. The district court reasoned that,
notwithstanding plaintiffs' recovery of only $2.00 in nominal
damages, their success was not merely technical or de minimis and
therefore they were not precluded from recovering attorneys' fees
under Farrar v. Hobby. Klinger V, 909 F. Supp. at 1334.
Thereafter, final judgment was entered. Plaintiffs timely
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appealed, and defendants cross-appealed.
After the parties filed their appeals, the Prison Litigation
Reform Act (PLRA) was signed into law. Defendants requested
permission to file supplemental briefs addressing the applicability
of the PLRA to the present case. Permission was granted. An
amicus brief on this issue was also filed by the State of Missouri
on behalf of numerous states which support defendants' position
regarding the applicability of the PLRA. In addition, plaintiffs
and defendants submitted letters to this court pursuant to
Rule 28(j) of the Federal Rules of Appellate Procedure, bringing to
our attention two recent Supreme Court decisions. Plaintiffs have
cited United States v. Virginia, 116 S. Ct. 2264 (1996), and
defendants have cited Lewis v. Casey, 116 S. Ct. 2174 (1996).
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Discussion
Title IX claim
Plaintiffs argue that the district court erred when it sua
sponte reversed its finding of a violation under Title IX, 20
U.S.C. § 1681(a),4 upon concluding that such reversal was mandated
by our equal protection analysis in Klinger II. The district court
reasoned as follows.
Because the Court of Appeals has held as a matter of
law that "comparing programs at NSP to those at NCW is
like the proverbial comparison of apples to oranges,"
Klinger II, 31 F.3d at 733, the evidence in this case,
when reexamined in light of Klinger II, fails to
establish a Title IX violation. This is specifically
true because (1) the evidence of discrimination,
intentional or otherwise, and whether viewed in light of
the Equal Protection Clause or Title IX, is largely (if
not totally) dependent upon a factual comparison of NSP
with NCW to the exclusion of all other Nebraska prisons,
Klinger II, 31 F.3d at 729; Klinger I, 824 F. Supp. at
1384 n.6 & 1388 n.14; and (2) Plaintiffs do not claim
that the allegedly inferior programs at NCW result from
discriminatory funding, since Nebraska spends more money
per capita at NCW than at any other adult prison in its
system. Klinger II, 31 F.3d at 731 n.2; Klinger I, 824
F. Supp. at 1392-93.
In sum, if NSP is not factually comparable to NCW,
then "[d]ifferences between challenged programs at the
two prisons are virtually irrelevant because so many
variables affect the mix of programming that an
institution has." Klinger II, 31 F.3d at 733.
Therefore, since the plaintiffs have presented no other
relevant or persuasive evidence tending to prove a Title
20 U.S.C. § 1681(a) provides:
No person in the United States shall, on the basis
of sex, be excluded from participation in, be
denied the benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance,
except that . . . [listing exceptions which do not
apply in the present case].
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IX violation, it follows that the plaintiffs have failed
in their burden to prove that the NCW women were denied
educational opportunities in violation of Title IX "on
the basis of sex."
Klinger III, 887 F. Supp. at 1286-87.
We agree with plaintiffs insofar as they assert that the
standard for finding a Title IX violation differs from the standard
applicable to a constitutional equal protection claim. See, e.g.,
Jeldness v. Pearce, 30 F.3d 1220, 1226-27 (9th Cir. 1994), citing
Canterino v. Wilson, 546 F. Supp. 174, 210 (W.D. Ky. 1982) (Title
IX standard is "equality" as compared with the equal protection
standard of "parity"), vacated on other grounds, 869 F.2d 948 (6th
Cir. 1989). In other words, plaintiffs are correct to assert that
their failure to prove an equal protection violation does not
preclude their Title IX claim as a matter of law. See, e.g.,
Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265 (6th Cir.
1994) (reversing grant of summary judgment for defendants on Title
IX claim but affirming summary judgment for defendants on similar
equal protection claim where facially neutral rule disparately
impacted boys' and girls' interscholastic athletic programs but
there was no evidence of discriminatory intent). We further agree
with plaintiffs' argument that the "similarly situated" requirement
applied in equal protection cases does not apply to Title IX
analyses. Title IX provides, in pertinent part: "No person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance, except that [listing exceptions]."
20 U.S.C. § 1681(a).5 In our opinion, Congress has indicated, by
To the extent that exceptions are to be recognized, Congress
has specifically enumerated certain exemptions in 20 U.S.C.
§ 1681(a)(2)-(9). Notably, the statute does not exempt
correctional institutions, although it does expressly exempt --
among other types of entities -- religious schools, military
schools, fraternities, sororities, voluntary youth organizations,
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its enactment of § 1681(a) and by the specific language employed
therein, that female and male participants within a given
federally-funded education program or activity are presumed
similarly situated for purposes of being entitled to equal
educational opportunities within that program or activity. Because
Title IX is only concerned with conditions of gender discrimination
and inequality within federally-funded educational programs or
activities, the question of whether males, as a group, are
otherwise similarly situated to females, as a group, need not be
considered in this narrow context.6
Nevertheless, we disagree with plaintiffs' assertion that, in
the present case, they may properly assert a Title IX claim by
comparing educational opportunities available to female prisoners
at NCW with educational opportunities available to male prisoners
only at NSP. Title IX prohibits gender-based inequality or
discrimination "under any education program or activity receiving
Federal financial assistance." Title IX's definition of "program
or activity," 20 U.S.C. § 1687, provides in pertinent part:
and beauty pageants. "When a statute lists specific exemptions,
other exemptions are not to be judicially implied." Jeldness v.
Pearce, 30 F.3d 1220, 1225 (9th Cir. 1994) (referring to exemptions
in 20 U.S.C. § 1687(a)(3)-(9)); see also Canterino v. Wilson, 546
F. Supp. 174, 210 (W.D. Ky. 1982) (noting that Congress was
"certainly aware" that non-discrimination statutes such as Title IX
"could result in administrative problems in many areas" and,
accordingly, some exceptions were made in 20 U.S.C. § 1687(a)(1)-
(9); under these circumstances, a court cannot impose a special
exception for correctional institutions), vacated on other grounds,
869 F.2d 948 (6th Cir. 1989).
Accordingly, we disagree with the D.C. Circuit's assumption in
Women Prisoners v. District of Columbia, 93 F.3d 910, 927 (D.C.
Cir. 1996), that "the court's Title IX and equal protection
analyses both depend on findings that [female prisoners and male
prisoners to whom they were compared] were similarly situated."
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For the purposes of this chapter, the term "program
or activity" and "program" mean all of the operations
of --
(1)(A) a department, agency, special purpose
district, or other instrumentality of a State or of
a local government; or
(B) the entity of such State or local government
that distributes such assistance and each such
department or agency (and each other State or local
government entity) to which the assistance is
extended, in the case of assistance to a State or
local government;
. . . .
any part of which is extended Federal financial
assistance, except that [stating an exception that does
not apply in the present case].
The legislative history of § 1687 contains the following
explanation:
For education institutions, the bill provides that
where federal aid is extended anywhere within a college,
university, or public system of higher education, the
entire institution or system is covered. If federal aid
is extended anywhere in an elementary or secondary school
system, the entire system is covered.
For State and local governments, only the department
or agency which receives the aid is covered. Where an
entity of state or local government receives federal aid
and distributes it to another department or agency, both
entities are covered.
. . . .
For other entities established by two or more of the
above-described entities, the entire entity is covered if
it receives any federal aid.
S. Rep. No. 100-64, 100th Cong., 2d Sess. 4 (1988), reprinted in
1988 U.S.C.C.A.A.N. (Legislative History) 3, 6 (summary of the
bill). In other words, the purpose of § 1687 was "to make clear
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that discrimination is prohibited throughout entire agencies or
institutions if any part receives Federal financial assistance."
Id.7
In the present case, the subset of Nebraska prisons comprised
of NCW and NSP, clearly does not constitute a "program or activity"
within the meaning of § 1687. The Nebraska prison system as a
whole, however, does qualify as a "program or activity" within the
statutory definition. See 20 U.S.C. § 1687(1)(A) (the term
"program or activity" means "all of the operations of . . . a
department, agency, special purpose district, or other
instrumentality of a State or of a local government" which receives
federal funds). It is undisputed that DCS is the recipient of
federal funds. See Klinger I, 824 F. Supp. at 1432 (noting
parties' stipulation).
It is beyond controversy that male and female prisoners may
lawfully be segregated into separate institutions within a prison
system. Gender-based prisoner segregation and segregation based
upon prisoners' security levels are common and necessary practices.
When considering single-sex prisons, the only logical and workable
application of the definition of "program or activity" under Title
IX requires comparison of educational opportunities for female and
male prisoners within the entire system of institutions operated by
a state's federally-funded correctional department or agency,
taking into account the objective differences between the male and
female prison populations and such penological and security
considerations as are necessary to accommodate in this unique
The legislation was deemed to reverse the Supreme Court's
decision in Grove City College v. Bell, 465 U.S. 555 (1984), which
had narrowed Title IX's application to only those specific
education programs and activities which directly received federal
funds. See S. Rep. No. 100-64, 100th Cong., 2d Sess. 5-6 & 11-16
(1988), reprinted in 1988 U.S.C.C.A.N. (Legislative History) 3, 7-8
& 13-18.
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context.8 See Jeldness v. Pearce, 30 F.3d at 1228-29 (taking into
consideration differences between circumstances of female and male
prison populations in Oregon prison system and holding that
"[a]lthough the programs need not be identical in number or
content, women must have reasonable opportunities for similar
studies and must have an equal opportunity to participate in
programs of comparable quality"). This is not to say that no
comparison can be made, consistent with Title IX, where there are
significant differences between male and female prison populations
within a state's correctional system, such as unequal population
sizes and lengths of stay. Rather, equal opportunities must be
afforded consistent with those differences. See id. Because
plaintiffs' comparison of the educational opportunities at NCW to
those at NSP fails to provide a meaningful comparison of
educational opportunities for male and female prisoners in the
Nebraska prison system as a whole, the district court correctly
concluded that plaintiffs' evidence was not sufficiently relevant
or persuasive to prove a violation of Title IX. See Klinger III,
887 F. Supp. at 1287. We therefore affirm the district court's
judgment on the Title IX claim.
Access-to-courts claim
On cross-appeal, defendants Lofgreen and Tewes argue that the
district court erred in holding that plaintiffs had been denied
meaningful access to the courts during the period of January 1988
to January 1989. They refer to the Supreme Court's 1977 landmark
decision in Bounds v. Smith, which essentially held that a state
could afford prisoners meaningful access to the courts by providing
either access to an adequate law library or adequate assistance
from persons trained in the law. 430 U.S. at 828. It is
In addition, co-ed institutions may not discriminate on the
basis of sex in providing educational opportunities to inmates
within a given institution.
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undisputed that NCW inmates were not provided any assistance from
someone with legal training until January 1989. The issue in this
case focuses on plaintiffs' access to an adequate law library.
Describing the purported law library as "a disorganized pile of
books stored in a small room," the district court held that "the
NCW law library at all pertinent times was so disorganized that the
condition of the law library amounted to a complete and systematic
denial of access to the courts under Bounds, even though the
general population inmates at NCW had physical access to the
library." Klinger IV, 902 F. Supp. at 1043. Thus, the district
court found a constitutional violation notwithstanding plaintiffs'
inability to show that any NCW inmate was hindered or precluded
from engaging in legal activity or suffered a monetary loss as a
consequence of the deprivation. Id. at 1043-45. Citing Jones v.
James, 38 F.3d 943, 945 (8th Cir. 1994), the district court
explained "[a] complete and systematic denial of an inmate's
constitutional right of access to the courts is such a fundamental
constitutional deprivation that it is injury in and of itself for
liability purposes without a showing of actual injury or actual
prejudice." Klinger IV, 902 F. Supp. at 1041.
Defendants Lofgreen and Tewes argue that the present case is
more like Schrier v. Halford, 60 F.3d 1309 (8th Cir. 1995), where
this court held that actual injury or prejudice must be shown if
the denial of access is not complete and systemic. They suggest
that there was at least some access to a law library because the
general population inmates had access to the "disorganized pile of
books stored in a small room," and the segregation and orientation
inmates could request books. Lofgreen and Tewes also rely on the
Supreme Court's very recent decision in Lewis v. Casey, 116 S. Ct.
2174 (1996), for the proposition that actual injury or prejudice
must be shown even if the denial of access is complete and
systemic.
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Upon careful review, we hold that plaintiffs' access-to-courts
claim fails as a matter of law under Lewis v. Casey, which was
decided after the district court rendered its decision in the
present case. In Lewis v. Casey, the Supreme Court held, based
upon principles of standing, that actual injury must be proven in
order to prevail on an access-to-courts claim. Id. at 2179-80
("[i]nsofar as the right vindicated by Bounds is concerned,
'meaningful access to the courts is the touchstone' . . . and the
inmate therefore must go one step further and demonstrate that the
alleged shortcomings in the library or legal assistance program
hindered his [or her] efforts to pursue a legal claim").
Accordingly, even though plaintiffs did show a complete and
systemic denial of access to a law library or legal assistance
prior to January 1989, plaintiffs' claim fails as a matter of law
because none of the inmates at NCW suffered actual injury or
prejudice as a result of that denial of access. See Klinger IV,
902 F. Supp. at 1043. We therefore reverse the district court's
judgment on the access-to-courts claim and vacate the award of
attorneys' fees and expenses.9
Conclusion
For the foregoing reasons, we affirm the district court's
judgment in favor of defendants on plaintiffs' Title IX claim,
reverse the district court's judgment in favor of plaintiffs on
their access-to-courts claim, and vacate the award of attorneys'
fees and expenses.
Because we hold that the district court erred in finding that
a constitutional access-to-courts violation had occurred, we need
not address the issues of qualified immunity, the excessiveness of
the award of attorneys' fees and expenses, or the applicability of
the Prison Litigation Reform Act.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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