author: GODBOLD, Circuit Judge:

text:
    Robert G. McCRAY, Plaintiff-Appellant, v. L. B. SULLIVAN, as Commissioner of the Alabama State Board of Corrections, et al., Defendants-Appellees. Jerry WHITE and Alvin Claybrone, Plaintiffs-Appellants, v. COMMISSIONER OF ALABAMA BOARD OF CORRECTIONS et al., Defendants-Appellees.
    Nos. 73-2744, 73-3404.
    United States Court of Appeals, Fifth Circuit.
    March 19, 1975.

      William R. Lauten, Mobile, Ala. (Court appointed) for plaintiffs-appellants.
    William J. Baxley, Atty. Gen., Don Dickert, Asst. Atty. Gen., Montgomery, Ala., Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., for defendants-appellees.

      Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   GODBOLD, Circuit Judge:

These are consolidated appeals from decisions in favor of defendants in several § 1983 actions by prisoners incarcerated in the Alabama state penal system. Each appeal presents a variety of issues concerning conditions in Alabama prisons which plaintiffs-appellants contend are violative of either prior injunctions issued by the District Court in Beard v. Lee, Civil No. 4345-66 (S.D. Ala., filed Jan. 24, 1969), and Lake v. Lee, 329 F.Supp. 196 (S.D.Ala., 1971), or the Eighth Amendment to the United States Constitution. The two appeals present distinct issues and will be discussed separately.

McCray v. Sullivan

Appellant McCray is a prisoner in the Holman Unit of the Alabama State Penitentiary. During the period of his incarceration in Holman he has been in administrative segregation with brief periods of confinement in punitive isolation. Seeking injunctive relief, he raises a number of issues relating to the conditions of his confinement.

(1). Segregation of homosexuals. The District Court determined that this issue had been raised in Beard and Lake and therefore would not be considered. The federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they in their broad discretion determine appropriate. Young v. Wainwright, 449 F.2d 338 (CA5, 1971). However, where prison officials have failed to control or separate prisoners, whether homosexual or not, who endanger the physical safety of other prisoners, prison officials may be required to take steps to protect the prison population from those dangerous prisoners. See Gates v. Collier, 501 F.2d 1291, 1308-10 (CA5, 1974); Holt v. Sarver, 309. F.Supp. 362 (E.D.Ark., 1970), aff’d 442 F.2d 304 (CA8, 1971). McCray’s complaint alleges such extreme circumstances. He claims that homosexuals frequently are the cause of violent assaults causing injury and death and that prison authorities condone many such occurrences. Although Lake did address this issue, McCray appears to allege further occurrences of violence which require consideration by the District Court. The District Court’s dismissal of this issue must be reversed, and this portion of the cause remanded for further proceedings. The District Court on remand should determine whether prison practices in this regard do in fact violate the constitution and what corrective measures, if any, must be required of the defendants.

(2). Conjugal visits by spouses. The District Court dismissed this contention on the ground it had been resolved in Beard and Lake. Although we are unable to see that it was addressed in either Beard or Lake, the dismissal was proper. Failure to permit conjugal visits does not deny an inmate a federal constitutional right. Tarlton v. Clark, 441 F.2d 384 (CA5), cert. denied 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). Visitation privileges are a matter subject to the discretion of prison officials. See Walker v. Pate, 356 F.2d 502 (CA7), cert. denied 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d. 678 (1966); Payne v. District of Columbia, 102 U.S.App.D.C. 345, 253 F.2d 867 (1958); Queen v. South Carolina Dept. of Corrections, 307 F.Supp. 841 (D.S.C., 1970).

(3). Failure to provide a reasonable rehabilitation program. This was dismissed on the same ground as (2), and we reach the same conclusion as we did for (2). In the context of extreme conditions the failure to provide a rehabilitation program has been held to violate the Eighth Amendment. See Holt v. Sarver, supra; Finney v. Arkansas Board of Corrections, 505 F.2d 194 (CA8, 1974). We decline to find that the failure of the Alabama prison system to provide a rehabilitation program, by itself, constitutes cruel and unusual punishment. See Smith v. Schneckloth, 414 F.2d 680 (CA9, 1960). See also Diehl v. Wainwright, 419 F.2d. 1309 (CA5, 1970); United States v. Pate, 229 F.Supp. 818 (N.D.Ill., 1964).

(4). Bathing and exercise. The appellant, conceding that these items had been covered in the injunction in Lake, argues that the Lake injunction was insufficient, to insure compliance with the Eighth Amendment. We agree with the District Court that these matters were settled in Lake. Appellant fails to allege the existence of new circumstances which would justify reconsideration of these issues, and therefore these portions of the complaint were properly dismissed.

(5). Violations of the Beard and Lake injunctions. The Beard and Lake injunctions are allegedly being violated in three respects. First Lake requires that “inmates are to have daily access to materials for brushing or cleaning their teeth.” The District Court found that the prison policy, at the time of trial, was to issue toothbrushes free of charge and to provide inmates with 50 cents every two weeks from which toothpaste, as well as other personal needs, could be purchased. We find no error in the District Court’s determination that the defendants were in compliance.

Second, Beard requires that “medical attention will be available whenever needed and the doctor will visit the unit at least once every three days.” Appellant contends that this requires the doctor to personally visit the punitive isolation cells three times per week. The prison’s policy was to send a medical assistant to visit punitive isolation who would determine which inmates sought medical attention. Those inmates would then be able to see the doctor who visited the prison infirmary three times per week. We find no error in the . District Court’s determination that this procedure complies with the injunction in Beard.

Third, the Lake injunction requires:

(3) Mail to and from any attorney at law, licensed to practice in the State of Alabama, will not be opened except where there is reasonable cause to believe sealed communications are enclosed.
(4) Mail to and from public officials is not to be opened.

The District Court found that mail to and from attorneys had been opened and read by prison authorities. The court found, however, that no injury had resulted to appellant and further found that the defendants had adopted and implemented “a strict policy of having all official incoming mail delivered to and receipted by the inmates and is ensuring that all outgoing mail, whether of an official nature or not, is sealed by the prisoner who desires it sealed.” These findings support the District Court’s denial of further injunctive relief. Although we agree with the District. Court’s conclusion that defendants were not violating the mail requirements of Lake, the District Court did not have the benefit of two recent Supreme Court decisions, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), delineating the constitutional minimums for procedures employed in the processing of prisoner mail. A remand for consideration of these regulations in light of these decisions is necessary. Mills v. Sullivan, 501 F.2d 939 (CA5, 1974).

White v. Commissioner

Appellants Claybrone and White are presently incarcerated in the Atmore prison farm unit of the Alabama State Penitentiary. In a series of five complaints they seek damages and injunctive relief for violations of the injunctions in Beard and Lake and for violations of various of their federal constitutional rights. The District Court found that the defendants were in compliance with the Beard and Lake injunctions and that no constitutional rights of appellants were being violated.

We agree with appellants that conditions in punitive isolation in Atmore violate the Eighth Amendment. A brief summary of the evidence demonstrates' the inhuman conditions to which inmates in punitive isolation are subjected. Punitive isolation prisoners are segregated from the general prison population. As many as seven of them are placed in a cell which measures six feet by eight feet. These cells are essentially concrete boxes with no bunks, toilets, sinks or other facilities. A hole in the cell floor serves as a toilet. This is flushed four times per day by a guard who has access to the flushing mechanism. Flushing frequently causes the waste to back up onto the floor of the cell. Inmates placed in punitive isolation live in these conditions day and night for as long as 21 days.

Punitive isolation per se is not unconstitutional. Novak v. Beto, 453 F.2d 661 (CA5, 1971), cert. denied 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972). We noted in Novak that the common element in cases finding a violation of the Eighth Amendment is the deprivation of the basic elements of hygiene. See Gates v. Collier, 501 F.2d 1291, 1300-04 (CA5, 1974). This case shares that common element. Seven persons of normal size cannot even lie down on a six by eight floor. The punitive isolation conditions which we have described rise to the level of constitutional violations. We reverse the findings of the District Court with respect to punitive isolation and remand for entry of an appropriate injunctive order.

The appellants raise other contentions concerning conditions in punitive isolation relating to ventilation, bathing, exercise, and clothing. There is conflicting testimony on these issues. The District Court’s determination that the injunction in Beard was being obeyed in these respects is not clearly erroneous.

Appellant McCray also attacks the policy of the prison regarding the opportunity of prisoners in punitive isolation to obtain access to the courts. The District Court found that “[ijnmates in isolation are not permitted to receive mail or to write writs, but confinement cannot last over twenty-one (21) days.” The District Court found these restrictions were reasonable. “An inmate’s right of unfettered access to the courts is as fundamental a right as any other he may hold. . . . All other rights of an inmate are illusory without it ..” Adams v. Carlson, 488 F.2d 619, 630 (CA7, 1973). This court has frequently recognized the special protection due the right to access to the courts. See Eisenhardt v. Britton, 478 F.2d 855 (CA5, 1973); Barlow v. Amiss, 477 F.2d 896 (CA5, 1973); Frye v. Henderson, 474 F.2d 1263 (CA5, 1973); Schack v. Wainwright, 391 F.2d 608 (CA5), cert. denied 392 U.S. 915, 88 S.Ct. 2078, 20 L.Ed.2d 1375 (1968). The. restrictions in the present case may amount to an unconstitutional infringement on this right. Prison authorities have the authority to impose regulations on the time, place and manner in which punitive isolation inmates communicate with attorneys and courts. These regulations, however, must be based on compelling needs of prison administration and discipline. The purpose of the regulation must not be interference with an inmate’s communication with the courts and attorneys. We are unable to find any evidence in the present record directed toward these considerations. Before the constitutionality of these restrictions is determined, the parties should have the opportunity to present further evidence concerning the justifications, or lack thereof, for these restrictions on the right to access to the courts. This portion of the decision of the District Court must be reversed and remanded for reconsideration of this issue.

The District Court’s finding of no discrimination against Black Muslim inmates in favor of Christian inmates must be affirmed. The evidence indicates that prison authorities have made major efforts to meet the needs and requests of Black Muslims. Black Muslim inmates have clearly been provided “a reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263, 268 (1972).

Appellants contend that prison mail is censored in violation of the Lake injunction. There is conflicting testimony on this issue, and the District Court’s finding in favor of defendants must be affirmed. It is appropriate, however, for the mail regulations at Atmore to be reconsidered in the light of recent Supreme Court decisions. See discussion supra. This portion of the cause must therefore be remanded.

Appellants have made numerous other claims, the denial of which must be affirmed because the evidence with respect to each was in conflict or the District Court could properly find that the evidence offered by the plaintiffs was not credible. These are: that in proceedings by which prisoners are assigned to punitive isolation they are not given sufficient notice and opportunity to present witnesses and cross-examine witnesses; that inmates in punitive isolation are provided with insufficient medical care; that appellant Claybrone was forced to work when sick; that the prison administrators discriminate against black inmates; that prison guards have at various times capriciously mistreated Claybrone and other inmates; and that certain defendants conspired to murder appellant Claybrone.

Affirmed in part, reversed and remanded in part.

      . Defendants in McCray are the Commissioner of the Alabama State Board of Corrections, the Warden of the Holman Unit of the Alabama State Penitentiary, and the Alabama State Board of Corrections. Defendants in White include the Commissioner, the Warden of the Atmore Unit of the Alabama State Penitentiary, and various officers and administrative personnel at Atmore.

      . 42 U.S.C. § 1983.

      . The injunction in Beard is set forth in Lake. 329 F.Supp. at 198.

      . No class allegations are involved.

      . The earlier policy had been that inmates were to purchase both toothbrushes and toothpaste from this money.

      . It is unclear the degree of discretion vested in the medical assistant to determine who would have the opportunity to see the doctor. The District Court determined that this system was providing adequate opportunity for treatment by a physician. This finding is not clearly erroneous. The prison now has a full time physician, and it appears that the prison is well within the requirements of the injunction in Beard.

      . The evidence indicates that the District Court was referring to mail from attorneys as well as mail from public officials.

      . The evidence further indicates that mail is not opened or read by the prison authorities under this receipt system.

      . One complaint was filed by White and Claybrone jointly. The remaining complaints were filed by Claybrone alone.

      . There is testimony that this is caused by prisoners clogging the toilet with toilet paper. Assuming this is true, a method must be found by which as many as seven men, some of whom presumably did not clog up the toilet, will not have to live and sleep on a floor that has waste on it.

      . Despite the conditions we have described the defendants were in compliance with the literal language of the Beard injunction which permitted as many as eight persons in a punitive isolation cell and required that toilets be flushed a minimum of three times per day. It is inconceivable to us, however, that in Beard the District Court intended the limits it prescribed to be permissible in other than exceptional circumstances and then only for brief periods of time, and not when toilets are failing to operate properly in an overcrowded cell. Our decision that the conditions we have described violate the Eighth Amendment and must be enjoined is not intended to have retroactive effect.


source: Caselaw Access Project

author: COLEMAN, Circuit Judge. JOHN R. BROWN, Chief Judge

license: Public Domain

text:
    Johnny CLEMMONS, Plaintiff-Appellant, v. Officer GREGGS et al., Defendants-Appellees.
    No. 74-2137.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1975.
    Cooper C. Thurber, Mobile, Ala. (Court-appointed not under Act), for plaintiff-appellant.
    Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., William J. Baxley, Atty. Gen., Calvin M. Whitesell, William R. Gordon, Montgomery, Ala., for defendants-appellees.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge.

Johnny Clemmons lost a suit for damages for an alleged infliction of cruel and inhuman punishment by an Alabama state prison guard and he appeals.

The case was tried to the District Judge, without a jury. The Court found that “the defendant Greggs’ conduct was not motivated by malice or ill will, nor did he intend by his action to punish the plaintiff. He probably overreacted and exercised poor judgment for which he has been disciplined”.

The Court further held, “This court is unable to find an intentional infliction of a penalty or harm upon the petitioner. It appears Greggs’ conduct was a spontaneous reaction that does not constitute the infliction of punishment”.

Judgment went against the plaintiff-appellant and upon briefs and oral argument we affirm.

Clemmons was sentenced to the Alabama state penitentiary (Atmore Prison Farm) for assault with intent to rob and murder. He soon stabbed a fellow prisoner, which landed him in the prison segregation unit. There, on the evening of July 16, 1972, prison officers Greggs, Jackson, and Brady were making a second head count of the inmates because a previous one had turned out one man short. Jackson and Brady were doing the counting while Greggs, as a precautionary measure, stood at the main cell block door. Between him and the prisoners there was a double locking system composed of the doors to the individual cells and the door to the central entrance.

There were about nine or ten prisoner-occupants. They began to rattle their cell doors, to curse the officers, and to throw various solids and liquids. This frightened Greggs. From where he stood he could not tell whether the men were in or out of their cells.

One of the counting officers yelled, “get the gas”. Greggs swiftly complied, obtaining two cannisters from the supply kept about forty feet away. Running back to the cell block he saw Clemmons, from within his cell, throw a cup of urine into officer Brady’s face. Brady and Jackson ran from the cell block. Greggs then threw the cannisters inside, one of them landing in front of a cell next to the one holding Clemmons. Greggs then locked the main cell block door and followed his departing associates.

For about thirty minutes, prior to the arrival of other prison officials, the men were left to the gas. Four of them were ill enough to have medical attention. The next day Clemmons was examined by a prison doctor, who diagnosed him to be suffering from “inflammatory reaction in the bronchial tubes — going into the lungs”, but he further stated that the condition was not necessarily caused by the tear gas. Clemmons remained in the hospital for nine days.

An investigating deputy warden was of the opinion that the use of the gas was unwarranted and unnecessary, so Greggs was disciplined by suspension for a week without pay.

The day after his release from the hospital, Clemmons filed this suit for damages, asserting that cruel and inhuman punishment had been inflicted upon him. Counsel was appointed for him.

The sole issue on this appeal is ' whether, under the facts, Greggs’ conduct amounted to the infliction of cruel and inhuman punishment within the meaning of the Eighth Amendment.

In resolving the issue we look first to the basic facts: what Greggs did was not the result of prison policy nor was it the product of a long standing prison condition or practice. The episode was instigated by the disruptive behavior of prisoners sufficiently fractious to be in segregative incarceration. All the prison officers at the scene were so frightened that they reacted, justifiably or not, by leaving the scene. An officer shouted for the gas; Greggs reacted almost by reflex. While the pouring of the urine cannot be' said to have justified the throwing of gas, it quite obviously was not done for the purpose of pouring oil on troubled waters. It could have done little to soothe the already aroused fears of the head counters. In any event, the whole thing boils down to a single act of a minor prison functionary. It was not the result of prior plan or deliberation. At most, it was an ill advised spontaneous reaction to the disturbing behavior of men in prison, who at that point were not noted for non-violent behavior.

The use of tear gas when reasonably necessary to prevent riots or escapes or to subdue recalcitrant prisoners does not constitute cruel and inhuman punishment, Landman v. Peyton, 4 Cir., 1966, 370 F.2d 135.

Assuming, as the District Court appears to have done, that the use here was not reasonably necessary, we apply the law to what actually happened.

In Roberts v. Williams, 5 Cir., 1972, 456 F.2d 819, cert. denied 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110, we affirmed a finding of infliction of cruel and inhuman punishment in the infliction of blindness and other grievous personal injuries on a county farm prisoner by a mentally unbalanced, grossly incompetent guard. We did' so because the occurrence resulted from the “sustained maintenance over a period of time of a needlessly hazardous condition”. But we were careful to distinguish this from the errors in judgment of a prison guard or the casual derelictions of minor prison employees.

Moreover, the finding, here, of the District Court that there was no intent to punish is supported by the evidence credited by the trier of the fact. Three minor prison officers were precipitately confronted with a disturbance, if not a minor riot. Until they abandoned the field, their activities were not inconsistent with a bona fide effort to bring the situation under control. As Judge Simpson wrote in Roberts v. Williams, supra, “The essence of punishment is the intentional infliction of penalty or harm upon another. At the very least punishment comprises conduct so grossly negligent that intent may be inferred from its very nature * * * ”.

Without further elaboration, see also the opinion of the same Judge, speaking for a majority of the Judges of this Court in active service, in Anderson v. Nosser, en banc, 5 Cir., 1972, 456 F.2d 835, cert. denied 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89.

Affirmed.

JOHN R. BROWN, Chief Judge

(dissenting in part):

On this record and at this point in time I do not differ with the Court’s holding no Eighth Amendment violation occurred, because I am not sure an isolated incident such as this — in violation of established prison regulations — should come within that Amendment. See, e.g., Anderson v. Nosser, 5 Cir., 1972, 456 F.2d 835, 842 (Simpson, J., concurring specially), incorporationg by reference Roberts v. Williams, 5 Cir., 1972, 456 F.2d 819, 834 (Simpson, J., specially concurring).

Instead, my dissent is focused on the Court’s erroneous assertion the Eighth Amendment is the only issue before this Court. Completely forgotten was the due process clause under the Fourteenth Amendment. The complaint alleged a Civil Rights Action under 42 U.S.C.A. § 1983. The plaintiff sought recovery for the action of the prison guards under the Fourteenth Amendment as well as the Eighth Amendment. And in this Court appellant continues to urge the Fourteenth Amendment as an alternate ground for relief — citing Johnson v. Glick, 2 Cir., 1973, 481 F.2d 1028.

Two distinctive operational facts are presented. The first, on which the Court focuses, is the decision to use tear gas to allay a possible riot. The second, is whether suitable steps were taken to overcome the harmful effects of the gas once order was in hand. Just from reading the Court’s account of the officers’ “justifications” a trial court facing up to this issue might well find that the guards were consciously taking no action out of retaliatory or retributive motives. They must be charged with actual notice of the regulation Greggs was suspended for violating. Further, at least 40%— four out of nine or ten — of those occupying the area required medical attention. On Due Process the issue is not whether it is enough to find justification for the initial teargassing, but whether there was any justification for failing to vent the area during the ensuing 30 minutes.

“Section 1979 [now 42 U.S.C.A. § 1983]' should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 1961, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505. Of course, the right of action, as a Congressional expression of policy, should not be read to include merely technical torts, such as inoffensive— though unprivileged — touchings. Nevertheless, several of our Sister Circuits have recognized Civil Rights Actions under the Due Process clause in cases similar to this, without relying on any more specific constitutional provision (such as the Eighth Amendment). Draeger v. Grand Central, Inc., 10 Cir., 1974, 504 F.2d 142; Gregory v. Thompson, 9 Cir., 1974, 500 F.2d 59; Curtis v. Everette, 3 Cir., 1973, 489 F.2d 516, cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774; Johnson v. Glick, 2 Cir., 481 F.2d 1028, cert. denied sub nom. Employee-Officer John v. Johnson, 1973, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324.

Our own Circuit has indicated acceptance of this rule, and in' my view the Court errs today by falling away from it. Anderson v. Nosser, 5 Cir., 1972, 456 F.2d 835 (en banc); Hamilton v. Chaffin, 5 Cir., 1975, 506 F.2d 904; Tolbert v. Bragan, 5 Cir., 1971, 451 F.2d 1020; cf. Rodriguez v. Jones, 5 Cir., 1973, 473 F.2d 599, cert. denied, 1973, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007.

What — and all — I am saying at this juncture is that the District Judge did not pass upon the due process claim. The plaintiff has not had a trial on a vital part of his case. He is entitled to that even though the Judge might conclude that there was no denial of due process. My dissent does not forecast what that decision should be or what I would do with it if it came back to me on appeal. Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505; Barber v. Motor Vessel “Blue' Cat”, 5 Cir., 1967, 372 F.2d 626.

      . In its findings of fact and conclusions of law, the District Court noted the following:
      “January 18, 1974, while this matter was under advisement by the Court, inmates in segregation at this institution seized guards as hostages and before they were released one guard and one inmate were killed and a second guard critically injured”.

      . FROM: Walter T. Capps, Warden
      TO: Atmore & Holman Lieutenants & Sergeants
      IN RE: MACE & TEAR GAS
      This is to advise that it has been brought to my attention that some of the Officers have used Mace and Tear Gas on occasions when it may not have been necessary.

        In the future, Mace and Tear Gas will be used only in case of an emergency. Such as when an 'inmate is destroying State property, endangering the life of another inmate or Correctional Officer.
      Mace and Tear Gas have been placed in the Central Control Station at the Holman Unit and in the Main Cubical [sic] at Atmore Prison Farm for the purpose of an emergency.
      Any time that a Correctional Officer is forced to use Mace or Tear Gas, he is to write a report on the details and send it to me.
      You are not to use Mace or Tear Gas unless it is absolutely necessary.
      Your cooperation in this matter is expected. Plaintiffs Exhibit No. 4.

      . In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
      481 F.2d at 1033.
      Assuming (without deciding in this dissenting opinion) Judge Friendly’s analysis is correct, a trial court, facing up to the issue as framed by pleadings and the evidence, F.R. Civ.P. 15(b), might have held the line to have been crossed in this case. On this approach, not only was Greggs suspended for violating a regulation he had to know about, but at least 40% of the prisoners subjected to the gas needed medical attention. Balanced against these injuries, which were substantial, was the fact that from the standpoint of prison security at that stage the guards conceded that they were in no physical danger because of the double-lock system in the cellblock.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank RODRIGUEZ, Defendant-Appellant.
    No. 74-3031.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1975.

      William A. Daniel, Jr., Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Charles Jaffe, Asst. U. S. Atty., Miami, Fla., Karen L. Atkinson, Crim. Div., U. S. Dept, of Justice, Miami, Fla., for plaintiff-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

In this case appellant, convicted of conspiracy to import cocaine, charges that certain errors were committed during the course of his trial. Finding his allegations meritless, we affirm his conviction.

I.

Viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941), the facts are these. In January, 1971, Al Nardone, a confidential informant, met Jaime Castello-Yepez (hereinafter “Yepez”) on an airplane flight from New York to Miami. In response to Nardone’s inquiry, Yepez indicated that a' “kilo” of cocaine could be purchased in the United States for about $8,000, gave Nardone his card, and told Nardone to contact him at the Hotel Bradford in Miami.

In July of 1971; Nardone called the Hotel Bradford and a meeting was arranged between Aurelio Castro and Juan Arteaga, who claimed to be Yepez’s associates, and Nardone and Peter Scrocca of the Drug Enforcement Administration, working under cover. At the meeting on July 13, 1971, Scrocca told Castro and Arteaga that he wanted to buy 100 kilos of cocaine. Castro said that there would be no problem, but he would have to contact Yepez. During the conversation Castro gave Scrocca Frank Rodriguez’s name and phone number. He also said that Rodriguez was Yepez’s man in Miami and Scrocca should contact him if there were any problems.

After making arrangements by phone, Nardone, Scrocca, and Agent William D. Hudson met with Rodriguez on July 16, 1971. At this meeting Scrocca told Rodriguez that he (Scrocca) had made arrangements with Castro and Arteaga for the shipment of a quantity of cocaine but that they had departed prematurely, and he had no knowledge if the final arrangments had been made. Rodriguez replied that he did not know Castro or Arteaga, but that he represented Yepez in Miami and would contact Yepez in Ecuador to resolve Scrocca’s problem.

On July 20, 1971, Hudson and Nardone again met with Rodriguez who said that he was going to Ecuador and would have Yepez call Nardone to straighten the matter out. Within a day or two Yepez called Nardone to devise a method of payment for the cocaine. A period of negotiation followed. During one of the subsequent conversations, Yepez indicated that Nardone should pay Rodriguez for the drugs.

In late August Nardone met Yepez in Ecuador at the latter’s invitation. Yepez showed Nardone his cocaine laboratory. In March 1972, Nardone again returned to Ecuador to negotiate with Yepez who again indicated that payment should be made to Rodriguez.

On July 13, 1973, Scrocca and other agents met Yepez in Kingston, Jamaica. During this meeting, Scrocca made plans to purchase 100 kilos of cocaine a month from Yepez. Yepez indicated that Rodriguez was in narcotics traffic with him but would not take an “active, out-front part” in this deal because of Internal Revenue problems. Yepez also told the agents that a shipment of cocaine was to arrive in New York around June 29 by boat and that Scrocca could have part of the shipment. Yepez stated that the boat would make intermediate stops in Jacksonville and Baltimore.

At the end of June, 1973, Rodriguez contracted with Harold Wright to pick up cartons that were to arrive at the port of Baltimore on July 3, 1973, and transport them to New York. Rodriguez told Wright which broker to contact in Baltimore, gave him a bill of lading for the boxes, and $100 to cover the shipping charges. Rodriguez instructed Wright to pick out 30 of the boxes in the shipment of 450, explaining that these could be identified by the configuration of the staples holding the boxes together.

On July 3, 1973, cocaine was discovered during a customs search in the boxes Wright was to pick up. As a result, when he arrived at the pier and claimed the boxes, Wright was arrested.

On August 26, 1973, Scrocca met with Frank Rodriguez and asked him what had happened to the cocaine that Yepez had shipped. Rodriguez said that he would find out and suggested a meeting the next day. This meeting occurred on August 28, 1973, at' which time Rodriguez told Scrocca that Yepez had been arrested in Ecuador but would probably be released in the near future.

On February 25, 1974, Nardone, Scrocca, and Agent James Milford visited Rodriguez at his home. Scrocca told Rodriguez that he knew Rodriguez was Yepez’s partner and that he was shipping cocaine to New York. Rodriguez replied that all this was true. Rodriguez said that he “was aware of everything that Castello-Yepez told anyone, both in South America and in the United States, and he was well aware of the pending deal.” He also said that Yepez would probably be out of jail very soon and suggested that, when Yepez was released, they hold a meeting in Mexico or Panama to resolve all problems relative to both their current business and any future business they might conduct.

On March 14, 1974, Rodriguez, Yepez, Wright, Castro, Arteaga, and Piedad Romero de Herrera were charged in a one-count indictment with conspiracy. to import cocaine in violation of 21 U.S.C. §§ 952 and 963. Yepez, Castro, Arteaga, and de Herrera were never apprehended.

At the subsequent trial, Wright pleaded guilty and testified as to all of the instructions Rodriguez had given him. Nardone, Scrocca, Hudson, and Milford also testified as to their conversations with the named defendants, recounting both their comments and those of the alleged co-conspirators. The jury returned a verdict of guilty and appellant was sentenced to ten years imprisonment and a special parole term of three years.

Rodriguez appeals, alleging that certain errors were committed in his trial.

II.

Appellant first contends that extrajudicial statements made by co-defendants Castro, Arteaga, and Yepez, outside the presence of the appellant were improperly admitted into evidence. We hold that these statements, although hearsay, were properly admitted as declarations of co-conspirators made during the course of the conspiracy and in furtherance of it.

Of course, the government must introduce sufficient independant .evidence of the existence of a conspiracy and of appellant’s participation therein before the judge may allow declarations ;of the co-conspirator, made outside of the presence of the defendant, to go to the jury. United States v. Apollo, 476 F.2d 156, 157 (5th Cir. 1973); Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952). The test of sufficiency is whether the other evidence, aliunde the hearsay, would be sufficient to support a finding that the defendant himself is a conspirator — -that is, whether the government has established a prima facie case of the existence of a conspiracy and of defendant’s participation therein. United States v. Oliva, 497 F.2d 130, 132-33 (5th Cir. 1974).

The trial judge below properly required that the government show the appellant’s participation in the conspiracy by evidence other than hearsay before allowing the jury to hear any of the extrajudicial statements of the co-conspirators. The government met this burden by having Agent Scrocca describe the 'July 16, 1971 meeting with Rodriguez. The judge then held that the government had made a sufficient showing that Rodriguez was a member of the conspiracy. We believe the judge’s ruling that sufficient evidence of a conspiracy and of defendant’s participation therein had been presented was correct.

Appellant next contends that the trial court erred in admitting into evidence extrajudicial declarations of co-conspirators which were not made in furtherance of the conspiracy charged in the indictment. Of course, declarations by co-conspirators are admissible under the conspiracy exception to the hearsay rule .only if they are made in furtherance of the conspiracy and during its pendency. Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1952); Holsen v. United States, 392 F.2d 292, 298 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 640, 21 L.Ed.2d 573 (1969).

Appellant claims that the references to Rodriguez made by Castro and Arteaga — although in furtherance of a conspiracy — were not made in furtherance of the conspiracy with which Yepez, Wright, and Rodriguez were charged because the two declarants left town before consummating the deal. The record indicates, however, that the meeting between the agents and Castro was but the first step in one continuous conspiracy to import cocaine. Rodriguez entered this conspiracy rather than undertaking a new one when he followed up the initial negotiations by putting the agents in touch with Yepez.

Appellant , also argues that it was improper to permit Agent Miller to testify as to statements^made by Wright after Wright’s arrest, since the conspiracy had been terminated by the seizure of cocaine in Baltimore, and Wright’s statements were therefore not made during the pendency of the conspiracy.

The indictment against Rodriguez, however, did not indicate that the conspiracy terminated with the seizure of cocaine; rather, it charged a conspiracy continuing until March 14, 1974. Plainly, Rodriguez’s actions in no way indicated a conclusion on his part that the conspiracy had terminated with the seizure in Baltimore. Rather, in the meeting of February 25, 1974, he indicated that he would arrange a future meeting between the agents and Yepez to discuss future transactions. The fact that one shipment had gone awry in no way terminated Rodriguez’s goal of dealing with the agents.

The appellant next argues that the trial court erred in admitting extrajudicial declarations of government agents who testified as to their own conversations with indicted co-conspirators. Appellant claims that the testimony of a government agent as to his own statements made outside the presence of the defendant are hearsay and therefore inadmissible.

Appellant relies upon United States v. Williamson, 450 F.2d 585 (5th Cir. 1971), but his reliance is misplaced. In Williamson one agent testified to the extrajudicial remarks made to him by another agent, and this testimony was introduced in order to prove the facts asserted in the extrajudicial statements. Here, however, each agent testified as to his own prior out-of-court' statements. Since the extrajudicial statements were introduced in the testimony of the extrajudicial declarant, and since each declarant could be cross-examined as to the statement he had made, the testimony was not hearsay. See 5 Wigmore, Evidence (3d ed.) § 1364. Moreover, it is doubtful that any of this testimony was used to prove the accuracy of facts asserted extrajudicially. ^Rather, the statements were used only to place the replies of the appellant in context ■

On several occasions, one agent was also permitted to corroborate the fact that a statement, already admitted into evidence in the testimony of the declarant, was made by another agent. Appellant’s counsel never objected to this corroborative testimony since it was apparent to him as it is to us, that the testimony was not used to prove facts asserted in the out-of-court statements. Of course, government agents were also permitted to testify to the out-of-court responses made by the co-defendants. While this testimony was used to prove the facts asserted in the extrajudicial responses, it was clearly admissible under the co-conspirator exception to the hearsay rule which we have discussed above.

Appellant’s final contention is that there is insufficient evidence to support the jury’s verdict. The verdict of the jury must be sustained on appeal if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Carlton, 475 F.2d 104, 105-106 (5th Cir. 1973); Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967).

Appellant first claims that the evidence shows several rather than one continuing conspiracy with various parties joining at different times. Whether a scheme is one conspiracy or several conspiracies is primarily a jury question. Koolish v. United States, 340 F.2d 513, 526 (8th Cir. 1965), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); United States v. Dardi, 330 F.2d 316, 327 (2nd Cir. 1964), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964). It is not necessary that Rodriguez know each of the other co-conspirators, Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947), or be aware of each part of the unlawful plan, United States v. Dardi, 330 F.2d 316, 327 (2nd Cir. 1964). It is only necessary that appellant know of the conspiracy and associate himself with it. Id. Here, the appellant had knowledge of the conspiracy and its essential objective — to buy cocaine — and he agreed to further the conspiracy by contacting Yepez in Ecuador. Without restating all of the evidence, we believe that the testimony, taken as a whole, justified the jury’s conclusion that there was one continuous conspiracy beginning with Nardone’s contact with Yepez and continuing through the February 24, 1974, meeting between the government agents and Rodriguez.

Appellant also claims that the evidence is insufficient because it fails to show an overt act done in pursuance of the conspiracy. See United States v. Carlton, 475 F.2d 104, 105 (5th Cir. 1973). Again, we believe that the evidence disclosed numerous overt acts performed in pursuance of the conspiracy. Moreover, each of the events submitted to the jury as overt acts done in furtherance of the conspiracy would support a finding of guilt if the jury believed the government’s evidence. By meeting with the agents and offering to contact Yepez in order to ameliorate the negotiations in July 1971, by dispatching Wright to pick up the cocaine, and by volunteering to organize a meeting in February 1974, the appellant acted in furtherance of the conspiracy.

We find other alleged errors, which the appellant asserts, to be without merit.

Affirmed.

      . There were, moreover, voluminous amounts of evidence subsequently admitted which established a prima facie case as to the existence of a conspiracy and Rodriguez’s participation. First, the testimony of Scrocca, Hudson, and Nardone established the existence of a conspiracy independent of any hearsay utterances. Second, Rodriguez’s own words and acts indicated his participation. For example, in addition to the July 16 meeting, Rodriguez spoke with Nardone and Agent Hudson on July 20, 1971, and indicated that he was going to Ecuador and would have Yepez contact Nardone. Wright, a co-defendant, testified that Rodriguez contracted him to pick up the cartons containing the cocaine. And, on February 25, 1974, Rodriguez indicated his knowledge of the “pending deal” and his intention to arrange a subsequent meeting.

      . In oral argument, appellant also contended that it was error to permit Agent William Miller to testify as to statements Wright made after his arrest because these were not made in furtherance of the alleged conspiracy.
      Miller was called as a witness by the appellant. Appellent’s counsel questioned Miller about a conversation with Wright on July 10, 1973, during which Wright told the agents that he was picking up the cartons for one Sergio Mareno and that he was not employed by Frank Rodriguez.
      On cross examination, the government attempted to show that in Wright’s subsequent conversations with Miller, Wright had admitted that he lied about his true employer in the conversation of July 10, 1973, and that Rodriguez employed him at the time of the seizure.
      During the cross examination, the following exchange occurred:
      Q. Agent Miller, did you have occasion to have subsequent discussions with Mr. Wright about this Sergio Mareno?
      A. Yes; I have.
      Q. And when was that?
      A. The other day, out here in the Marshal’s office.
      Q. And what did he tell you then?
      A. He had told us that what he had said before — Of course, we knew what he said before was basically—
      MR. DANIEL: Objection, Your Honor as to—
      THE COURT: Sustained. What did he tell you at this time?
      Appellant now argues that his objection to Miller’s testimony was sustained, and, consequently, that Miller should not have been permitted to testify as to Wright’s subsequent conversations because they were not in furtherance of the conspiracy.
      Appellant’s counsel assures us that he did not renew his objection as Miller continued to testify about Wright’s statements because he misunderstood the trial judge and thought his objection had been denied. However, a reading of the transcript convinces us that appellant objected — and the trial judge properly sustained the objection — only as to any testimony pertaining to what Miller knew rather than what Wright had told him.
      Moreover, had appellant’s counsel objected to the admission of Wright’s subsequent statement to Miller, we believe the district judge’s response would have still been in order. The government’s cross examination of Miller was clearly within the scope of the appellant’s direct examination, inasmuch as appellant first elicited testimony regarding Wright’s prior conversations with Miller. Furthermore, inasmuch as the appellant attempted to impeach Wright’s testimony by introducing evidence of prior inconsistent statements, it was proper for the government to introduce evidence of subsequent consistent statements. See, United States v. Jimenez, 496 F.2d 288, 292 (5th Cir. 1974); United States v. Gandy, 469 F.2d 1134 (5th Cir. 1972); United States v. Bays, 448 F.2d 977 (5th Cir. 1971), cert. denied, 405 U.S. 957, 92 S.Ct. 1186, 31 L.Ed.2d 234 (1972).

      . A hearsay statement is an extrajudicial declaration offered to prove the truth of the matter stated. See, McCormick, Evidence, § 246 (1972).

      . Even if the testimony was used to prove the facts asserted in out-of-court statements, any error in the admission of this evidence was not prejudicial since the declarant in all cases was present, gave testimony which was, in all respects, identical to that of the witness, and was subject to vigorous cross examination. United States v. Wilkerson, 469 F.2d 963, 968 (5th Cir. 1972); United States v. Williamson, 450 F.2d 585 (5th Cir. 1971).


author: DYER, Circuit Judge:

text:
    In re GRAND JURY PROCEEDINGS. Richard Stanley TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
    No. 75-1265.
    United States Court of Appeals, Fifth Circuit.
    March 5, 1975.
    James M. McEwen, Tampa, Fla., Daniel S. Pearson, Miami, Fla., for appellant.

      D. Frank Winkles, Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., for appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   DYER, Circuit Judge:

Pursuant to the provisions of 28 U.S. C.A. § 1826(b), Taylor appeals from an order adjudging him in civil contempt for his refusal to testify before a federal grand jury. He was ordered confined until such time as he testified, limited however to the remaining life of the grand jury, or eighteen months, whichever first occurred. We affirm.

In December 1973, Taylor was arrested in possession of $1,000,000 in counterfeit money. He was subsequently indicted by a federal grand jury and charged with intent to defraud by passing three counterfeit twenty dollar bills. He pled guilty to one count and was given an indeterminate sentence under the Youth Corrections Act. At that time it was made known to the Court through the Probation Officer’s pre-sentence report that Taylor had refused to cooperate and testify for the Government. Four months later further execution of the sentence was suspended and Taylor was placed on probation for three years.

On January 19, 1975, Taylor was subpoenaed to appear before the Federal Grand Jury in Tampa, Florida and was given use immunity for the purpose of obtaining his testimony about his transactions in counterfeit money. Taylor’s motion to quash the subpoena was denied, his objections to the grant of use immunity were overruled, and he was asked a series of questions concerning these transactions before the grand jury. He refused to answer on the grounds that (1) he feared reprisals from those against whom the information was sought; (2) he was either put in double jeopardy or the Government was es-topped from attempting to elicit the same information that he had previously refused to furnish and which had led to an enhancement of his criminal sentence; and (3) the use immunity granted was not coextensive with the scope of the privilege against self incrimination, because the immunity order failed to protect Taylor from the use of the compelled testimony in a prosecution for pri- or perjury or giving a false statement. We address these contentions seriatim.

The Government does not concede that Taylor is in actual danger but admits that his fears may not be unjustified. Seizing upon this and dicta in Widger v. United States, 5 Cir. 1957, 244 F.2d 103, 106, that “[a] Court would not lightly require a witness to testify if it were convinced that death or serious bodily harm would ensue therefrom,” Taylor urges that he may not be deprived of his liberty because he asserts fear as an excuse for not testifying. We disagree. Widger held no more than that a witness cannot be summarily held in criminal contempt for refusing, on the ground of fear, to testify before a petit jury.

We align ourselves with the Eighth Circuit’s reasoning in an analogous situation in which the court held that “[t]he concept of due process does not encompass the privilege of a witness not to testify because of fear of reprisals.” LaTona v. United States, 8 Cir. 1971, 449 F.2d 121, 122. The First Circuit recognized and accepted LaTona as correct in United States v. Doe, 1 Cir. 1973, 478 F.2d 194. See also Piemonte v. United States, 1961, 367 U.S. 556, 559, n. 2, 81 S.Ct. 1720, 6 L.Ed.2d 1028. We find no denial of due process.

Taylor next argues that, in violation of the double jeopardy clause of the Fifth Amendment, the Government is seeking a second time to have him incarcerated for identical recalcitrance as a witness, in that it sought before the sentencing court in 1974 to enhance his punishment because he refused to testify against certain persons, and again in these proceedings seeks to have him punished as a result of his refusal to testify against these same persons. This argument is both novel and unpersuasive.

There is simply nothing in the record to indicate that the Government made known or argued Taylor’s recalcitrance, and there is no showing that the sentencing court took this into consideration. On the contrary, the sentencing court gave Taylor “the best break” it could and, instead of enhancing sentence to a maximum of 15 years, mitigated it by utilizing the powers of the Youth Corrections Act. Of course, it would have been entirely improper for the court to give Taylor’s refusal to cooperate with the Government any weight in imposing sentence, United States v. Rogers, 5 Cir. 1974, 504 F.2d 1079, 1084-85. Taylor’s present dilemma does not arise from the crime for which he was previously tried but from his present recalcitrance and failure to comply with a valid order. This situation does not give rise to a claim of double jeopardy or estoppel.

Finally, relying on In Re Balding-er, C.D.Cal.1973, 356 F.Supp. 153, Taylor complains that the immunity granted him does not preclude a prosecution for perjury or giving a false statement if either antedated the compelled testimony. Thus it follows, he argues, that the immunity order is not coextensive with the scope of the privilege against self incrimination.

In Baldinger, the district court held that the statute could not constitutionally authorize a grant of immunity to a witness who had made a previous false statement to federal investigators about the same matters which were then being inquired into since the exceptions in the statute would authorize the use of the witness’ compelled testimony in a prosecution under 18 U.S.C.A. § 1001 based upon the previous statement. We reject this view as did the Ninth Circuit in United States v. Alter, 9 Cir. 1973, 482 F.2d 1016. There Alter argued that the exception built into section 6002 exposed him to potential prosecution if the statement he had given to the F.B.I. the year before his grand jury appearance should prove to be false. The court found that Alter’s “fear is unfounded, and his constitutional attack fails.”

Section 6002 provides that a grand jury witness given use and derivative use immunity cannot rely on his privilege against self-incrimination to refuse to testify,

“but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” (Emphasis added.)

We accept the Government’s construction of section 6002 as it applies to Alter:

“[T]he phrase beginning with ‘or otherwise’ as italicized above, modifies the meaning of the preceding quoted phrase beginning with ‘except.’ The concluding phrase indicates that the compelled testimony may be used in prosecutions for giving false statements in response to the command to testify. But for the ‘exception’ quoted here, all testimony given in compliance with the command to testify cannot be used, as proscribed under the preceding language of the immunity grant. [T]he testimony which appellant might have given could not be used against him in any prosecution for any false statements made to anyone outside of the grand jury.”

Kastigar v. United States (1972) 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 buttresses this conclusion.

Id. at 1028.

We conclude that the grant of immunity to Taylor preserves his Fifth Amendment privilege and precludes the Government from using his compelled testimony against him unless he commits perjury before the grand jury or otherwise fails to comply with the immunity order. Fear of reprisal is a legally insufficient ground for refusal to testify. Taylor’s claim of double jeopardy or estoppel is without merit.

The order of the district court committing Taylor for civil contempt is affirmed. The mandate shall issue forthwith.

      . 18 U.S.C.A. § 6002, under which immunity was granted, provides in pertinent part:
      [N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.


author: CHOY, Circuit Judge: BURNS, District Judge

text:
    UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, Respondent; Maurice H. FRIEDMAN and John Rosselli, Real Parties in Interest. UNITED STATES of America, Plaintiff-Appellant, v. Maurice H. FRIEDMAN, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. John ROSSELLI, Defendant-Appellee.
    Nos. 74-1827, 74-2134 and 74-2135.
    United States Court of Appeals, Ninth Circuit.
    Jan. 20, 1975.
    Certiorari Denied May 12, 1975.
    See 95 S.Ct. 1949.

      Hugh W. Blanchard, Asst. U. S. Atty. (argued), Los Angeles, Cal., for petitioner-appellant.
    Marvin G. Claitman (argued), Los Angeles, Cal., for appellee Friedman.
    Leslie Scherr (argued), Washington, D. C., for appellee Rosselli.
    Before WRIGHT and CHOY, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

CHOY, Circuit Judge:

The Government appeals from district court orders reducing fines assessed against Rosselli and Friedman. The Government also petitions this court for a writ of mandamus ordering the district court to vacate its orders. We grant the writ.

Statement of Facts

Friedman and Rosselli were tried together in the Central District of California and convicted on December 2, 1968 on several counts for violating 18 U.S.C. §§ 371, 1952, 2314. Rosselli was sentenced to five years imprisonment, fined $55,000 and was ordered to “stand committed” until the fine was paid. Friedman’s sentence consisted of a six year prison term, a fine of $100,000 and a “stand committed” order until the fine was paid. On December 22, 1970, this court affirmed on all counts the judgment against Rosselli, and reversed Friedman’s conviction on one count while affirming all remaining counts. On February 22, 1971 the Supreme Court denied Rosselli’s petition for a writ of certiorari and filed the order that day. United States v. Roselli [sic], 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). However, notification of the Supreme Court’s action was not mailed to this court until March 2, 1971 and not received until one day later. Notification of the denial of certiorari was never sent to the district court.

On June 28, 1971 Rosselli filed in the district court a motion for reduction of sentence. On October 18, 1971 the district court ordered a reduction in the term, denied for the time being the request to reduce the fine, but specifically stated it was retaining jurisdiction over the matter of the fine. Several months later, Rosselli moved for a reduction of the fine, but the court on March 6, 1973 merely vacated the “stand committed” order. A year later, Rosselli again moved the court to reduce the fine, and on March 25, 1974 the court reduced the fine to $10,000.

Friedman originally moved for a reduction of sentence on February 23, 1971, 62 days after the district court received this court’s mandate affirming his conviction. On May 3, 1972, the court reduced Friedman’s sentence to time served. Almost two years later, on February 4, 1974, Friedman filed a motion to clarify the order reducing sentence or, in the alternative, to reduce sentence. The district court on March 25, 1974 reduced the fine to $75,000 and then, in a modifying order on April 18, 1974, further reduced the fine by $25,000.

Uncertain whether the proper procedure to obtain review in this court of the sentence reduction orders was by appeal or by petition for a writ of mandamus, the Government pursued both methods. On April 24, 1974 the Government appealed directly from the March 25 orders, and on May 8, 1974 filed a petition for writ of mandamus to vacate the district court orders of March 25 and April 18, 1974. The appeals and the petition have been consolidated for disposition by this court. However, since we conclude that a writ should issue in this case, we need not consider the direct appeal nor decide whether an order to reduce sentence under F.R.Crim.P. 35 is appealable by the Government. United States v. Mehrtens, 494 F.2d 1172, 1174 (5th Cir. 1974).

Petition for Writ of Mandamus

Friedman and Rosselli, the real parties in interest in the action for the writ, contend that this court should in the exercise of discretion deny the petition without ever reaching the merits. Although it is well established that granting of a writ of mandamus is an extraordinary remedy and lies in the sound discretion of the court [United States v. Lane, 284 F.2d 935, 939 (9th Cir. 1960); United States v. Carter, 270 F.2d 521, 524 (9th Cir. 1959)], writs have been issued, in cases similar to the present one, directing a district court to vacate an invalid order suspending sentence. See e. g., Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Regan, 503 F.2d 234 (8th Cir. 1974); United States v. Mehrtens, supra; United States v. Gibbs, 285 F.2d 225 (9th Cir. 1960); United States v. Lane, supra. Friedman and Rosselli do not contend that laches or other equitable circumstances exist militating against the writ [see United States v. Old, 426 F.2d 562 (3d Cir. 1970); United States v. Carter, supra], and we find no valid reason to refrain from considering the petition.

Rule 35

F.R.Crim.P. 35 provides in part:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.

Because F.R.Crim.P. 45(b) states that the court may not enlarge the period for taking action under Rule 35, the 120 day requirement in Rule 35 is a mandatory one. Thus, unless the 120 day requirement is met, the court has no jurisdiction or power to alter sentence. United States v. Regan, 503 F.2d at 237; United States v. Mehrtens, 494 F.2d at 1176; Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970); United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert. denied 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); Irizzary v. United States, 58 F.R.D. 65, 66-67 (D.Mass. 1973). See also United States v. Marchese, 341 F.2d 782, 788 (9th Cir.), cert. denied 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965).

Rosselli’s Case

The Government’contends that the 120 day period for Rosselli began to run on February 22, 1971, the day the Supreme Court denied Rosselli’s petition for certiorari. Since Rosselli’s original motion to reduce sentence was not filed until June 28, 1971 — 125 days after the Supreme Court action — the Government argues that the district court was without power later to reduce sentence on March 25, 1974.

The validity of this argument depends on an interpretation of Rule 35, specifically the phrase: “ . . . within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.” (emphasis added) Rosselli contends that “entry” does not refer to entry on the Supreme Court docket sheet, but to entry or filing at the court of appeals or at the district court. If Rosselli’s contention is correct, his motion was timely since notice of denial of the petition for certiorari was not filed in this court until March 3, 1971 and still has not been filed at the district court.

Before the 1966 amendments to Rule 35, the Rule read in part: “The court may reduce a sentence . within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.” (emphasis added) The Advisory Committee Note to Amended Rule 35 states the reason for the change:

If the writ were denied, the last phrase of the rule left obscure the point at which the period began to run because orders of the Supreme Court denying applications for writs are not sent to the district courts. See Johnson v. United States, 235 F.2d 459 (5th Cir. 1956).... The amendment makes it clear that . . . the 120-day period commences to run with the entry of the order or judgment of the Supreme Court.

Thus, the history of the rule and the Advisory Committee Note are consistent with the plain meaning of the amended rule that the 120 day period begins to run the day of the Supreme Court order and entry on its own docket sheet. See Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970). The district court, therefore, had no power to reduce Rosselli’s fine on March 25, 1974.

Friedman’s Case

It is undisputed that Friedman’s original motion to reduce sentence, filed on February 23, 1971, was filed well within the 120 day period. Acting on the motion, the district court on May 3, 1972 ordered reduction of the prison term to time served. Friedman’s second motion to reduce sentence was not filed until February 4, 1974, more than three years after the original 120 day period began to run and almost two years after entry of the “time served” order. Believing that it had jurisdiction to consider the second motion, the court reduced Friedman’s fine on March 25, 1974 and again on April 18, 1974.

Friedman’s contention that the court had power to modify sentence in 1974 is based solely on Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967), which held that a court may act beyond the Rule 35 time period if defendant within the period filed a motion to reduce sentence. Id. at 719. Although Leyvas was decided under former Rule 35, which provided for only a 60 day time period, we find that the case is equally applicable to the new rule’s 120 day limit. See United States v. Polizzi, 500 F.2d 856, 896 n. 73 (9th Cir. 1974), petition for cert. pending; Fuentes v. United States, 371 F.Supp. 92, 94 (D.Puerto Rico 1973); United States v. Ursini, 296 F.Supp. 1152, 1153 (D.Conn. 1968). The literal language of the rule does define the period not as the time within which the motion may be made, but as the time within which the court may act. However, as long as the district judge acts with reasonable speed after the timely motion is filed, the time limit should be flexible enough to give him an opportunity to hear and consider new evidence regarding the appropriateness of the sentence.

The extension of Leyvas to amended Rule 35 cases, however, does not bolster Friedman’s position because the decision is wholly inapplicable to the present case. In Leyvas, only one motion to reduce sentence was filed and the hearing on that motion was held just eight days after expiration of the 60 day period. On the same day of the hearing the court orally modified sentence, and 11 days later — merely nineteen days beyond the 60 day period — the court entered its formal order. 371 F.2d at 719.

In distinct contrast, the challenged court order here was entered more than three years after expiration of the original 120 day period and was made pursuant to a second motion to reduce sentence, a motion totally new and separate from the original one which had been filed and acted upon several years earlier. Friedman’s motion of February 4, 1974 cannot relate back to his original timely motion to reduce sentence, and the court on March 25 and April 18, 1974 lacked power to consider the new motion. See United States v. Regan, 503 F.2d 234, 237 (8th Cir. 1974); United States v. Hughes, 36 F.R.D. 25, 26 (S.D.N.Y.1964).

Even if the second motion was, as Friedman contends, merely one for clarification of the first order or even if the district court on May 3, 1972 purported to “retain jurisdiction” over the sentence, the court’s action on March 25 and April 18, 1974 cannot be upheld. To rule otherwise would all but nullify the 120 day time limit and would undermine completely the purpose of Rule 35 which was enacted, in part, to limit the period over which the district court has discretionary control over its own sentences. See Original Committee Note to Rule 35. Leyvas does not hold that a district court may retain jurisdiction over a sentence indefinitely, and no authority supports such a proposition.

Petition for writ of mandamus granted.

BURNS, District Judge

(dissenting):

I dissent. I would deny mandamus relief because this is an ordinary case, while mandamus is an extraordinary remedy (United States v. Lane, 284 F.2d 935, 939 (9th Cir. 1960); United States v. Carter, 270 F.2d 521, 524 (9th Cir. 1959)), and should be saved for extraordinary cases.

The effect of the majority opinion is that Rosselli’s original motion to reduce, having been filed June 28, 1971, or 128 days after the Supreme Court acted, was beyond the power of the District Court to grant. For reasons known best to the Prosecutor, no challenge was posed to the Court’s action of October 18, 1971, reducing the term of Rosselli’s confinement. Rosselli on January 12, 1973, filed a further motion for reduction or modification of the fine. In response, the Court on March 6, 1973, vacated the “stand committed” order. Again the Prosecutor did nothing, though this later action was based upon a motion which came nearly a year and a half after the 120 days had run. It was not until the March 1974 court action reducing the fine that the Prosecutor bothered to challenge the Court’s action. In the absence of an adequate explanation by the Prosecutor as to why he did not see fit to challenge either the District Judge’s original reduction of the prison term or the later elimination of the “stand committed” clause, I see no reason whatsoever for this Court to conclude that this is an extraordinary situation.

I had always thought that sparing use of the extraordinary writs such as mam damus was a sound principle of judicial administration. If lawyers know they cannot run the mandamus track to the Court of Appeals in routine cases, then the time and talent of the Court of Appeals will be expended on cases in which appeal is a matter ,of right, or on those rare situations in which an extraordinary writ is absolutely necessary to prevent a grave injustice or to avoid some severe and pervasive procedural chaos. The serious backlog in the civil docket in this Court provides added reason why the extraordinary writs should be used sparingly and not passed out in profligate fashion.

The effect of this case will be that U. S. Attorneys, the Bureau of Prisons, or even the Board of Parole will be encouraged to pepper this Court with petitions for mandamus whenever the mood strikes and the District Judge acts after the 120 days have passed. I say this because of the language in the majority opinion which suggests that if the District Judge does not act “with reasonable speed after the timely motion is filed,” he will lose jurisdiction. I know from my own experience (and from the experience of other District Judges) that even when the motion is filed within 120 days, often a considerable amount of time elapses before the Judge can act. Many District Judges do as I myself do when a Rule 35 motion is received: I ask the Bureau of Prisons for a report on the status, conditions and progress of the Defendant in the institution in which he is confined. It usually takes at least 60 or 90 days for a significant report to be prepared by the Bureau of Prisons. From time to time, the report itself suggests the necessity for exploration and further study of particular aspects of the case. In such an event, a request to the Bureau of Prisons may well result in a further delay of one or two months. Hence, the majority result produces a situation in which, at the whim of some lower level employee in the Board of Parole or Bureau of Prisons, or perhaps in the Justice Department or Prosecutor’s Office, a mandamus challenge will be flung to the action of the District Courts, thereby adding to this Court’s already serious stack of unfinished civil business.

I would do here as this Court did in Carter, supra. There the District Judge placed two 18-year-old boys and a 19-year-old girl on probation, even though the existent provisions of the 1956 Narcotíes Control Act specifically forbade such probationary sentences. United States v. Lane, supra. But the Government dilly-dallied (in one case, a year, and in the other only four months!) before seeking mandamus relief. The Court exercised its discretion — wisely, I believe — by withholding mandamus relief. Nor do I believe that promptness by the Prosecutor is the only measure of extraordinariness. But it is surely one of its hallmarks.

As the majority notes in its opinion, the Government “double shot”', in this case by filing notice of appeal as well as seeking to invoke our mandamus jurisdiction. If my view on mandamus were to have prevailed, then it would be necessary for us to determine whether an appeal would lie under the provisions of the statute governing an appeal by the Government. 18 U.S.C. § 3731. However, since my view as to the mandamus has not prevailed, it seems unnecessary for me to discuss the question of whether the order is appealable.

      . Rosselli was also convicted on one count for violation of 26 U.S.C. § 7206(1).

      . Rosselli contends that the Government’s failure to raise jurisdictional defects at the pre-March 25, 1974 hearings on sentence reduction precludes it from raising that issue here. This argument is without merit. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884).

      . The court order of October 18, 1971, reducing the prison sentence to time served, and order of March 6, 1973, vacating the “stand committed” order, are not challenged on appeal nor are subjects of the writ petition. Therefore, our decision with respect to the validity of the March 25, 1974 order in no way affects the validity of the earlier orders.

      . This court order is not challenged by the Government and is not before us on appeal or on the petition for writ of mandamus.

      . The contention that the second motion was merely one for clarification of the first order modifying sentence and that the district judge on May 3, 1972 intended to “retain jurisdiction” over the sentence is without support in the record.

      . As Professor Moore has noted, “Some limitation on the court’s power seems to be necessary, for after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of penal authorities.” 8A J. Moore, Federal Practice 11 35.02 [1] at 35-4 n. 5 (2d ed. 1974); cf. United States v. Smith, 331 U.S. 469, 476, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). Furthermore, some limitation is necessary to protect the district court judge from continual importunities while the defendant is serving his sentence.

      . Even though the Court specifically stated it was “retaining jurisdiction” over the matter of the fine, in light of Rule 35 as construed by the majority, such a statement was unavailing.

      . While the dates differ somewhat as to Defendant Friedman, the considerations in his case call for no different result, whether my view or that of the majority prevails. I omit the details for brevity’s sake.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Joseph MORRIS et al., Plaintiffs-Appellees, v. Anthony TRAVISONO, Defendant-Appellant.
    No. 74-1127.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1975.
    Decided Feb. 6, 1975.

      W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellant.
    Cary J. Coen, Providence, R. I., with whom Winograd, Shine & Zacks, John M. Roney, Providence, R. I., Ralph J. Gonnella and Stanley A. Bass, New York City, were on brief, for appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal from an order of the district court enjoining Rhode Island officials from suspending Regulations Governing Disciplinary and Classification Procedures at the Adult Correctional Institutions (Morris Rules), which had been incorporated in a judgment entered by the district court on April 20, 1972.

The Morris Rules were the outgrowth of proceedings in the district court brought by inmates of the Adult Correctional Institutions (ACI) against Rhode Island prison authorities in a class action instituted on October 11, 1969, for alleged violations of the eighth and fourteenth amendments of the Constitution. As a result of negotiations, overseen by the court, the parties agreed to a detailed set of procedures for disciplining and classifying prisoners. The court approved the procedures and incorporated them in an interim consent decree, retaining jurisdiction for eighteen months to allow the parties to establish a final working scheme of enforcement of the procedures. Morris v. Travisono, 310 F.Supp. 857, 862 (D.R.I.1970). The parties did reach an agreement, and on April 20, 1972, the district court entered a judgment as a final consent decree establishing the Morris Rules as “those minimum procedural safeguards” to which the plaintiff class was entitled. The judgment further declared that defendant officials agreed to promulgate the rules pursuant to the Rhode Island Administrative Procedures Act, R.I.Gen. Laws § 42-35-1 et seq., within ninety days of the judgment. No injunctive relief was added to the declaration in the final decree.

The Morris Rules were duly promulgated under state law on October 10, 1972, but had a short life. On June 22, 1973, after a corrections officer at ACI was killed by an inmate, the Rhode Island Director of Public Welfare directed the Secretary of State to suspend the Morris Rules until further notice. During the preceding eleven weeks a number of events had occurred, including an extensive riot on April 2, the appointment of a new warden, the stabbing to death of an inmate, the discovery of an escape plot, and assaults on inmates and guards. Shortly after suspension of the Morris Rules seventeen inmates, previously suspected of involvement in the disturbances and escape plan, were moved from normal status to segregated confinement in the Behavioral Correction Unit in the maximum security area without notice or a hearing. A majority of those inmates were still in confinement on December 10, 1973, at which time the district court heard plaintiffs’ motion for an injunction. The Morris Rules remained suspended then, and at no time previously had defendants filed any motion with the district court to modify or vacate the court’s judgment of April 20, 1972.

The district court, in granting a permanent injunction against suspension of the Morris Rules, found that defendants had deliberately not reinstituted the Morris Rules or provided inmates with due process rights after July 5, 1973, when a state of emergency no longer existed at ACI. 373 F.Supp. 177, 180 (D.R.I.1974). The court noted that the warden, in justifying the suspension of the Morris Rules, had testified that he was advised that hearings might prejudice the criminal cases being investigated against the inmates charged with serious violations; that hearings were “unworkable”, leading to fights among guards, inmates, and witnesses; that the emergency provisions of the Morris Rules were unacceptable because the temporary reassignment of an inmate would have to be reviewed eventually; and generally that compliance with the Morris Rules was a “hassle all the way”. Though the ACI remained understaffed, tense, and in physical disrepair, the court found that order and safety had been restored by July 5, 1974, so that the procedural safeguards under the Morris Rules could have been provided. In light of these circumstances, the court concluded that defendants’ statements that due process protections were currently being provided were insufficient assurance against repetition of the wrongful suspension of rights. The court made clear, however, that it is open to consideration of proposed modifications to the Morris Rules that are consistent with constitutional requirements.

It is important to note, first of all, that the warden’s responsibility and authority to take immediate steps thought necessary to maintain prison safety and order were not questioned by the district court. The district court recognized that exigent circumstances could justify the temporary suspension, prior to disciplinary action, of due process hearing procedures. 373 F.Supp. at 181. See Gomes v. Travisono, 490 F.2d 1209, 1215 & nn. 9-10 (1st Cir. 1973), vacated and remanded, 418 U.S. 909, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), aff’d in pertinent part, 510 F.2d 537 (1st Cir. 1974); Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974). However, after an emergency has ended, due process safeguards must be provided as soon as possible. This court has stated:

“ ‘[Emergencies . . . cease to be emergencies when they continue indefinitely and inmates cannot be kept confined to their cells indefinitely in alleged violation of their constitutional rights merely on the assertion of the Warden that prison security requires it.’ The unreviewable discretion of prison authorities in what they deem to be an emergency is not open-ended or time unlimited.”

Hoitt v. Vitek, supra at 600. In the present case, there is clear evidence that state authorities went well beyond an emergency suspension of Morris procedures dictated by exigent circumstances. Rather they simply determined, on their own initiative, to scrap the Rules and, in effect, to disregard the obligations imposed by the consent decree. Moreover, from the failure of state authorities to seek relief from the consent decree through legal channels, the court was entitled to conclude that the state’s approach was so unpredictable as to require issuance of an injunction.

Under the “Emergency or Temporary Provisions” of the Morris Rules inmate rights may be postponed for a week at most. See note 1 supra. As the situation developed in Rhode Island, a week might well have been too little. Certainly we do not suggest that in a situation of escalating violence, prison authorities were required to follow unworkable procedures. But the Morris Rules were totally suspended for about five months— until a motion was brought by plaintiffs in the district court. During this time defendants sought no modification of the district court’s judgment of April 20, 1972. We find no clear error in the district court’s view that a state of emergency no longer existed after July 5, 1973 — two weeks after suspension of the Morris Rules. By that time visitation rights were restored, and shortly thereafter the general lockup of the inmates in the maximum security area was ended. And even if the acute emergency lasted beyond two weeks, we find inexplicable defendants’ failure to approach the court in an effort to explain their difficulties and to secure an adjudication of their continuing obligations.

Testimony indicates that the warden suspended the rules in part because he viewed them as unworkable, unacceptable, and bothersome. We do not necessarily condemn him for so feeling, especially if his experience led him sincerely to that view, although it seems clear that prison officials will have to live with procedural requirements foreign to earlier experience. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Courts are not infallible, and it may take some trial and error before rules are written which establish the best possible balance between an inmate’s rights and the needs of prison security. Where the state officials erred was in failing to accord proper deference to the judicial decree. Distaste for the Rules did not allow defendants simply to disregard the court’s judgment of April 20, 1972, and the fourteenth amendment rights declared under that judgment. See 28 U.S.C. § 2201. To the extent the Rules seemed unduly burdensome, the state had to seek their modification by legal means. Had it done so, using diligence reasonable under the circumstances, this case would be in a different posture.

By way of explaining their failure to seek relief from the Morris Rules in the district court, defendants contend that the consent decree directed them to follow state law under the Rhode Island Administrative Procedures Act in modifying the Morris Rules. Under section 42-35-3(b) of the Act, a state agency finding “an imminent peril to the public health, safety or welfare” may adopt without notice an emergency rule for 120 days, renewable for 90 days. While the consent decree called for enforcement of the Morris Rules under state law, see Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974), the contention that the Morris Rules themselves may be* eliminated under state law is without merit. The contention overlooks the nature of the original proceedings — a civil rights action under 42 U.S.C. § 1983 — as well as the clear import of the words in the consent decree. The Morris Rules, including the emergency provisions, embodied a binding declaration of constitutional rights and were part of a judgment; the court’s final decree specifically says as much. If the decree appeared unintelligible, access to the court was available for clarification. Defendants cannot unilaterally order the elimination of rights determined in federal courts simply because the consent decree was to be enforced through state machinery.

Defendants argue that in any event a permanent injunction is unnecessary now because on November 26, 1973, the state promulgated new rules of procedural due process under the Rhode Island Administrative Procedures Act. The district court reserved ruling on the adequacy of these revised rules as a substitute for the Morris Rules in providing due process safeguards. However, the court found that defendants’ violation of the Morris Rules and the continued violation of due process rights after promulgation of the new rules made the issuance of an injunction appropriate. 373 F.Supp. at 180-181, 185.

The district court acted within its power and did not err in concluding that injunctive relief was necessary and proper to enforce its declaratory judgment and decree of April 20, 1972. 28 U.S.C. § 2202. It is true that the Morris Rules were adopted at a time before the Supreme Court had clarified the scope of an inmate’s procedural due process rights. See Wolff v. McDonnell, supra. Prison officials must not be locked into restrictions on their ability to make a wide range of decisions not of constitutional dimension. See generally Gomes v. Travisono, supra. But access to the district court has been, and remains, available to a party seeking to establish what in the Morris Rules is now constitutionally necessary and what is not. In an addendum to its opinion in this case, the district court recognized that not all changes in the Morris Rules should require its approval and expressed its intention to promulgate, with the help of the parties, a procedural guideline by which prison officials may change the Morris Rules without first seeking the sanction of the district court. We have no doubt that the district court will continue to give sensitive and reasonable attention to legitimate problems raised by prison officials, and its judgments are of course subject to judicial review. But state officials may not unilaterally disregard its judgments.

The order of the district court is affirmed.

      . The case was a consolidated action in which plaintiffs were a class consisting of all inmates at the Rhode Island Adult Correctional Institutions. Defendants were the Rhode Island Commissioner of Public Welfare and Rhode Island prison authorities, who were added as defendants after an amended complaint was filed.

      . On March 25, 1974, shortly after the district court’s decision in this case, defendant officials filed a motion to modify the April 20, 1972, judgment by substituting proposed revised rules for the Morris Rules. At the request of defendant officials, action on the motion has been deferred so that the parties can attempt to resolve the matter by consent.

      . The emergency provisions of the Morris Rules provide in part:
      “All temporary assignments shall be reviewed at the next regular meeting of the Classification Board, which in any case will not exceed one week, and final action by the Board will be ordered without unnecessary delay."

      . Rule 60(b), Fed.R.Civ.P., provides in part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

      . “Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse parties where rights have been determined by such judgment.” 28 U.S.C. § 2202.