                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-6773.

 Donald PARRISH, on behalf of themselves and all others similarly situated, Gary Beasley, on
behalf of themselves and all others similarly situated, et al., Plaintiffs-Appellees,

                                                 v.

   ALABAMA DEPARTMENT OF CORRECTIONS, Joe S. Hopper, Commissioner of the
Alabama Department of Corrections, Defendants-Appellants.

                                          Sept. 28, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No.CV-79-G-
301-NW), J. Foy Guin, Jr., Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District Judge.

       EDMONDSON, Circuit Judge:

       The Alabama Department of Corrections appeals the refusal of the district court to terminate

an injunction. We reverse and remand to the district court with instructions to terminate the

injunction.

                                         BACKGROUND

       The District Court for the Northern District of Alabama entered an injunction in 1982

prohibiting Alabama and Lauderdale County from housing state prisoners in the Lauderdale County

Jail for more than 30 days. The district court entered the injunction to alleviate overcrowding (and

associated health problems) at the jail. In 1991, the Governor of Alabama and the Alabama

Department of Corrections Commissioner were held in contempt for violating the injunction. In the

light of a second contempt order in 1993, Lauderdale County constructed a new jail. The County


   *
     Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida,
sitting by designation.
finished the new jail two years ago. In 1997, the Alabama Department of Corrections moved to

terminate the injunction under the Prison Litigation Reform Act, 18 U.S.C.A. § 3626 (West

Supp.1998) ("PLRA"). Lauderdale County opposed the motion. The district court denied the

motion, and the Alabama Department of Corrections appeals.

                                            DISCUSSION

       An injunction directed to jail conditions must be terminated if the injunction was issued in

the absence of a finding by the district court that the injunction (a) is narrowly drawn, (b) extends

no further than necessary to correct the violation of a federal right, and (c) is the least intrusive

means necessary to correct the violation of a federal right. See id. § 3626(b)(2). An injunction shall

not terminate, however, if the court accurately makes written findings, based on the record, that the

injunction "remains necessary to correct a current and ongoing violation of the Federal right" and

meets the three criteria in Section 3626(b)(2). See id. § 3626(b)(3).

       The parties dispute whether a "current and ongoing" violation of a federal right exists at the

Lauderdale County Jail.1 If no violation exists, then the 1982 injunction must be terminated. After

examining the record, we conclude the evidence is insufficient to prove that a current and ongoing

violation of a federal right exists in the County's jail. Therefore, the injunction must be terminated.

       Alabama argues that because no constitutional violations exist at the jail right now, no

"current and ongoing" violation can exist. This interpretation may be a correct view of what



   1
    The district court made written findings under Section 3626(b)(3) that the 1982 injunction
was narrowly drawn, extended no further than necessary to prevent the jail from being
overcrowded, and was the least intrusive means to correct and to prevent overcrowding (and
related problems) at the Lauderdale County Jail. Alabama does not contest these findings; so we
accept them. We stress, however, that overcrowding is not necessarily a violation of a federal
right. See Rhodes v. Chapman, 452 U.S. 337, 347-48, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).
The only issue truly before us is whether the district court's other written findings demonstrate a
current and ongoing violation.
Congress intended.2 But, Alabama's interpretation might be an incorrect interpretation of "current

and ongoing" because it could blind courts to violations of federal rights that a court might

reasonably expect to recur soon if the injunction is dissolved. This interpretation may possibly also

give too little weight to the prospective nature of the word "ongoing."3

        The County has advanced a broader interpretation of "current and ongoing." In the district

court, the County contended that "current and ongoing" means a substantial and very real danger that

a violation of rights will follow the termination of the injunction. See James v. Lash, 949 F.Supp.

691, 693 (N.D.Ind.1996) (construing "current and ongoing" in PLRA). We need not decide,

however, precisely what "current and ongoing" means. Even if we accept—for argument's

sake—the County's "substantial and very real danger" standard, the County cannot prevail in this

case.

        Whether there is a substantial and very real danger of a violation of a federal right recurring

soon at the Lauderdale County Jail in the absence of an injunction may be a mixed question of law

and fact. But we need not decide whether it is a mixed question or a question of fact only. Even if

we review for clear error, we do see reversible error.



   2
    Congress's intention in enacting the PLRA looks to be in line with the Supreme Court's view
on the involvement of the federal courts in state prison systems. Both Congress and the Court
suggest a reduced role for federal courts. When confronted with state prison litigation, the
Supreme Court has written that "involvement of federal courts in the day-to-day management of
prisons [has led to] squandering judicial resources with little offsetting benefit to anyone....
[F]ederal courts ought to afford appropriate deference and flexibility to state officials trying to
manage a volatile environment." Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995); see H.R. Conf. Rep. 104-378 (1995) (stating that Congress designed
Section 3626 to ensure that prospective relief is the "minimum necessary to correct the violation
of a federal right") (emphasis added).
   3
   The phrase "current and ongoing" was originally enacted as "current or ongoing." The
phrase was amended in 1997 to its present form. See Department of Justice Appropriations Act,
1998, Pub.L. No. 105-119, § 123(a)(2), 111 Stat. 2440, 2470 (1997) (emphasis added).
       The district court seemed to rely on two pieces of evidence—a newspaper article and the two

contempt orders—to find that constitutional violations are likely to recur if the injunction is lifted.

Relying on these two things to find there is a current and ongoing violation of a federal right

produced clear error.

       First, the court—in a footnote added by amendment to the district court opinion—quoted a

newspaper report that included the following statement: "Prisons Commissioner Joe Hopper said

Monday state prisoners would continue to back up in county jails until the Legislature properly

funds the prison system."4 We question the usefulness of this report of Joe Hopper's statement in

determining whether a violation of the Federal Constitution is likely to result if the injunction is

lifted. See Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512, 517 (11th Cir.1991) (concluding

that district court erred when it took judicial notice of newspaper article as proof of fact asserted in

article). The report does not suggest that state prisoners would "back up" to the point where the

Constitution would be violated. In addition, even if we assume the newspaper is an accurate report

of what was said, statements to the press are often made for reasons that have no relation to the true

intent of the speaking party. Moreover, to the extent the report indicates disagreement between

Alabama's Legislative and Executive Branches that might, someday, cause overcrowding, this kind

of internal conflict about policymaking only further convinces us that a federal court should not

interfere now. See Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)

(stressing deference to state executive and legislative branches in state prison system litigation).

       Second, the district court relied on the 1991 and 1993 contempt orders to suggest that

overcrowding due to the presence of state prisoners in county jails will recur. That the contempt


   4
   Neither party—by motion or by offering the article into evidence at the hearing—seems to
have supplied the newspaper article to the district court. We assume, therefore, the district court
amended its opinion to take judicial notice of the newspaper article.
findings were based on violations of a federal right is, however, not clear. Violating the 1982

injunction does not necessarily mean that a federal right was violated. See Dolihite v. Maughon, 74

F.3d 1027, 1055 (11th Cir.1996) (failing to meet requirements of consent decree was no per se

constitutional violation); Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir.1986) ("[R]emedial

decrees are the means by which unconstitutional conditions are corrected but they do not create or

enlarge constitutional rights").

       The pertinent injunction in this case is more than fifteen years old. The Supreme Court has

cautioned that injunctions are not to stay in place "in perpetuity." Board of Educ. v. Dowell, 498

U.S. 237, 248, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).5 To follow the Court's guidance, earlier

violations—made right in the meantime—of the injunction must eventually be forgiven. We

conclude that, by now, the past acts of contempt cannot count for much: five years have elapsed

since the last contempt finding, a new jail has been constructed, no current constitutional violations

exist, and the persons then held in contempt have been replaced.

       Other considerations aid our conclusion that the record does not support the existence of a

substantial and very real danger of violating a federal right at the Lauderdale County Jail. Most

important, no one even claims the jail is presently overcrowded. Since the new jail opened, an

average of 130 prisoners per day are held in the jail. The jail has a 153 prisoner capacity. We also

note that between 1 July 1997 and 6 July 1997 (the only period for which we have records) the jail

held between 78 and 83 inmates. And, a nurse and doctor are now under contract to visit the jail




   5
    Dowell makes this statement for consent decrees, but consent decrees and injunctions are
interchangeable in this context. See System Fed'n No. 91 v. Wright, 364 U.S. 642, 650-51, 81
S.Ct. 368, 5 L.Ed.2d 349 (1961).
regularly.6

       From the record made in the district court, we conclude, as a matter of law, that no

substantial and very real danger of a federal right being violated has been proved for the Lauderdale

County Jail. We must reverse the district court's order because the evidence will not sustain it.

       The district court order is REVERSED and the case is REMANDED with instructions to

terminate the 1982 injunction.

       REVERSED and REMANDED.




   6
    By the way, a class-action lawsuit is pending in Montgomery County Circuit Court
addressing jail issues such as overcrowding. The certified class consists of "all counties and
sheriffs in the State of Alabama which do not currently benefit from court orders enjoining [the
Department of Corrections] from retaining state inmates in county jails." Therefore, dissolving
the injunction will let Alabama deal with its many prison and jail crowding issues in one lawsuit,
rather than confront multiple—and potentially conflicting—district court orders. See generally
Chairs v. Burgess, 143 F.3d 1432, 1438 (11th Cir.1998) (noting existence and significance of
potentially conflicting consent decrees regulating Alabama prisons). And, the same state lawsuit
will allow the County to litigate without the constraints imposed by the PLRA. The existence of
this state court litigation is, however, immaterial to today's result.
