                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                ___________

                                No. 95-3843
                                ___________


Samuel Lee McDonald; Thomas          *
Henry Battle;                        *
                                     *
           Plaintiffs,               *
                                     *
Alan J. Bannister,                   *
                                     *   Appeals from the United States
           Plaintiff-Appellant,      *   District Court for the
                                     *   Eastern District of Missouri.
     v.                              *
                                     *
Mel Carnahan; Dora Schriro;          *
George Lombardi; Michael             *
Bowersox,                            *
                                     *
           Defendants-Appellees.     *

                                ___________

                                No. 95-3845
                                ___________


Samuel Lee McDonald;                 *
                                     *
           Plaintiff-Appellant,      *
                                     *
Thomas Henry Battle; Alan J.         *
Bannister, *
                                     *
           Plaintiffs,               *
                                     *
     v.                              *
                                     *
Mel Carnahan; Dora Schriro;          *
George Lombardi; Michael             *
Bowersox,                            *
                                     *
           Defendants-Appellees.     *
                                       ___________

                      Submitted:       January 13, 1997

                             Filed: April 2, 1997
                                     ___________

Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District Judge.
                               ___________


BOWMAN, Circuit Judge.


      The plaintiffs, who are Missouri prisoners confined under sentence
of   death,   filed   this    class    action   in   August   1985,   challenging   as
unconstitutional the conditions of their confinement in the Missouri State
Penitentiary in Jefferson City.         The United States District Court for the
                                   2
Western District of Missouri           certified a class of present and future
Missouri death-row inmates.      The parties soon negotiated a detailed consent
decree regulating a number of aspects of day-to-day life on death row, and
the court approved the decree, following several addenda, in January 1987.
We first saw this case in 1988, when we affirmed the court’s award of
attorney fees to counsel for the plaintiffs.           See McDonald v. Armontrout,
860 F.2d 1456 (8th Cir. 1988).


      The following year, the defendants filed motions to move death row
to the newly constructed Potosi Correctional Center and to modify the
consent decree to reflect the different conditions at the new prison.               The
court granted both motions.      On the plaintiffs’ appeal of the modification
of the consent decree, we




      1
      The Honorable John B. Jones, United States District Judge
for the District of South Dakota, sitting by designation.
      2
      The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri.

                                          -2-
again affirmed.    See McDonald v. Armontrout, 908 F.2d 388 (8th Cir. 1990)
(McDonald II).    Because the Potosi prison is beyond the boundaries of the
Western District of Missouri, the modified decree provided for a transfer
of jurisdiction to the Eastern District of Missouri.


     Not long after their arrival in Potosi, the plaintiffs moved the
District Court3 to hold the defendants in contempt, challenging specific
conditions of their confinement in the new prison.              Before the court acted
on that motion, the defendants “mainstreamed” the plaintiff class into the
general prisoner population.      (As a result, a true “death row” no longer
exists in Missouri, but we will continue to use that term as a form of
shorthand.)   The court denied the contempt motion.


     The defendants filed a motion in 1991 to dismiss this case, which the
District Court interpreted as a motion to vacate the consent decree and
terminate   its   continuing   jurisdiction.        The    court       received   written
submissions   from    the   plaintiffs,    conducted      six    days    of   evidentiary
hearings, and considered further materials submitted by both sides.
Finally, in September 1995, the District Court filed an exhaustive eighty-
five-page   opinion    vacating   the     consent   decree       and    terminating   its
jurisdiction.     The plaintiffs appeal, and we affirm.


     At the outset, we consider the effect on this action of a section of
the Prison Litigation Reform Act, 18 U.S.C.A. § 3626 (West Supp. 1997),
which imposes restrictions on the duration of prospective relief in actions
challenging prison conditions.     See id. § 3626(b).           The Act took effect on
April 26, 1996, after the




     3
      The Honorable Edward L. Filippine, United States District
Judge for the Eastern District of Missouri.

                                          -3-
District Court rendered its order dismissing this case, and so the District
Court did not have an opportunity to consider whether the Act should apply
to this case.   The plaintiffs, who filed their opening brief in this appeal
shortly after the Act became law, did not address the new law and have not
filed a reply brief.   The state’s brief argues in conclusory fashion that
the Act applies and that the dismissal of the case was proper.   Because the
parties and the record have given us little to work with on this issue, we
will apply the law prevailing when the District Court filed its opinion and
leave the Act for another day.4


     We review the District Court’s decision to terminate its supervision
over the consent decree for abuse of discretion.     See Heath v. DeCourcy,
992 F.2d 630, 633 (6th Cir. 1993); see also McDonald II, 908 F.2d at 390
(applying same standard to modification of terms of decree).     In deciding
whether to terminate its jurisdiction, a district court should consider
several factors:


     (1) any specific terms providing for continued supervision and
     jurisdiction over the consent decree; (2) the consent decree’s
     underlying goals; (3) whether there has been compliance with
     prior court orders; (4) whether defendants made a good faith
     effort to comply; (5) the length of time the consent decree has
     been in effect; and




     4
      We recognize that other prisoners, including some within
our Circuit, have raised constitutional challenges to the
validity of the Act. See, e.g., Plyler v. Moore, 100 F.3d 365,
371-75 (4th Cir. 1996) (rejecting a number of constitutional
challenges); Gavin v. Ray, No. 4-78-CV-70062, 1996 WL 622556, at
*2-4 (S.D. Iowa Sept. 18, 1996) (holding § 3626(b)(2)
unconstitutional); Lyon v. Vande Krol, 940 F. Supp. 1433, 1436-39
(S.D. Iowa 1996) (holding 28 U.S.C.A. § 1915(g), also added by
the Act but concerning in forma pauperis proceedings,
unconstitutional). The district judges who decided Gavin and
Lyon have certified these cases for interlocutory appeal pursuant
to 28 U.S.C. § 1292(b). In this case, we need not and do not
reach any issues concerning the constitutionality of the Act.

                                    -4-
      (6) the continuing         efficacy     of   the   consent     decree’s
      enforcement.

Heath, 992 F.2d at 633; see also Board of Educ. of Okla. City Pub. Sch.,
Indep. Sch. Dist. No. 89 v. Dowell, 498 U.S. 237, 249 (1991) (noting that,
in considering whether to lift desegregation decree, court should consider
past compliance with court orders and defendant’s good faith); Johnson v.
Heffron, 88 F.3d 404, 407 (6th Cir. 1996) (ordering prison consent decree
dissolved where its goals had been achieved and no constitutional violation
was likely after dissolution); Inmates of Suffolk County Jail v. Rufo, 12
F.3d 286, 293 (1st Cir. 1993) (suggesting that court should consider
whether    constitutional   violation   has   been   remedied,     defendants   have
complied with decree in good faith for reasonable period, and violation is
unlikely to be repeated if decree is terminated) (dicta); Kindred v.
Duckworth, 9 F.3d 638, 644 (7th Cir. 1993) (“[D]ecrees imposing obligations
upon state institutions normally should be enforceable no longer than the
need for them.”).


      We conclude that the District Court did not abuse its discretion when
it dissolved the decree in the case at bar.          We begin with the goals and
terms of the consent decree.     In McDonald II, we identified the purpose of
the decree at issue here as “to provide constitutionally acceptable
conditions of confinement for inmates on death row.         The decree is simply
a   plan   for ensuring that the capital punishment unit complies with
constitutional requirements.”     McDonald II, 908 F.2d at 391.        As modified
in 1989, the decree itself provides that jurisdiction is transferred to the
Eastern District “to insure compliance with the foregoing provisions until
such time as all provisions of this decree have been fully implemented.”
Modified Decree ¶ 20.5      It follows that




      5
      The plaintiffs do not challenge the District Court’s
conclusion that the only provisions of the decree presently in
effect are those provisions set forth in Judge Wright’s May 10,
1989 order modifying the decree in connection with the move to
Potosi.

                                        -5-
once the decree had accomplished its purpose, remedying any conditions of
death row that may have fallen short of constitutional standards, the
District Court properly could vacate it and bring this case to a close.


     We next consider whether the state complied or attempted in good
faith to comply with court orders (namely, the terms of the decree).    The
substantive terms of the decree address the conditions of life on death row
in some detail, but the decree does not provide the plaintiffs with all the
privileges they claim.   In particular, the following concerns raised by the
plaintiffs in their objections to the District Court’s dismissal of the
case, although related to general topics covered in the decree, bear no
real connection to the actual terms of the decree:       (1) the number of
telephones, the lack of tables near telephones, and the requirement that
administrative segregation inmates be handcuffed during calls; (2) the
manner in which G.E.D. programs are provided; and (3) the presence of light
early in the morning and the absence of light late at night.   See Modified
Decree ¶¶ 4, 12, 13.     Accordingly, these objections add nothing to the
plaintiffs’ argument that the District Court abused its discretion in
vacating the decree.6




     6
      Similarly, the prisoners’ argument that the District Court
should have reopened the evidentiary hearings in light of new
developments (an increase in the population of the prison and a
prison-wide lockdown in August 1995) is meritless. The District
Court correctly determined that none of these developments, and
none of the prisoners’ grievances attendant thereto, was relevant
to the consent decree.

                                    -6-
        In two areas, the District Court did find that the defendants may
have violated the strict terms of the decree.             One provision of the decree
requires the defendants to take reasonable care to avoid the “scattering
of legal materials” during cell searches.                Modified Decree ¶ 2(b).        The
District Court found some evidence that prisoners’ legal materials have
been scattered during searches, but found that any scattering was not done
in bad faith.     (This is not quite the same as finding that the defendants
took reasonable care to avoid scattering the materials, as the decree
requires.)      But the court also found that any scattering that occurred was
not for any improper purpose, was not retaliatory in nature, and did not
actually interfere with the plaintiffs’ access to the courts.                   See Scher
v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991) (retaliation), cert. denied,
503 U.S. 952 (1992); Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996) (access
to courts).     The plaintiffs’ only objection to dismissal on this issue is
their    bare    assertion   that   legal    materials      have,   on   occasion,     been
scattered.      Without more--such as a pattern or practice of intentional
scattering or an actual constitutional violation--we cannot conclude that
the District Court abused its discretion by vacating the decree over this
objection.


        The   District   Court   also   noted     some    shortfalls     in   the   state’s
compliance with the decree’s provisions relating to medical services.                   The
decree requires that inmates be permitted to visit the eye clinic within
eight working days of making a request and that medication be dispensed
within twenty-four hours of prescription.           See Modified Decree ¶ 5(d)-(e).
The court noted that prisoners now have, at most, a two- to four-week delay
in seeing an optometrist and a five-day delay in receiving prescription
medication.     The court concluded that these delays were not caused by bad
faith on the part of the defendants, but rather by shift changes, the
optometrist’s limited hours, and the




                                            -7-
lack of a pharmacy on the prison premises.        Furthermore, the court
concluded that any delays in no way constituted deliberate indifference to
the prisoners’ medical needs and thus posed no constitutional problems.
See, e.g., Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990) (granting
judgment to defendants in action alleging one-month delay in treatment of
non-acute condition).   In light of the defendants’ good-faith efforts to
comply with this section of the decree and the lack of any constitutional
difficulties presented by the delays, we cannot conclude that the District
Court abused its discretion in vacating the decree over this objection.


     After determining that the defendants had complied with the other
terms of the consent decree, the District Court considered whether the
state was likely to impose unconstitutional conditions on the prisoners if
the decree were vacated.   The court found no reason to believe that would
happen, and the plaintiffs have suggested none to us.   We hardly need to
add that the prisoners may challenge, by means of a separate lawsuit, any
unconstitutional situation that may arise in the future.


     After more than ten years of litigation, the District Court concluded
that the consent decree in this case should be vacated and the case
dismissed.   In light of the deference we owe to that decision, see Heath,
992 F.2d at 633, and to the day-to-day judgments of the defendants in the
operation of the prison, see Lewis, 116 S. Ct. at 2185, we cannot say that
the order of the District Court dismissing the case is an abuse of that
court’s discretion.


     The order of the District Court is affirmed.




                                    -8-
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




                            -9-
