
USCA1 Opinion

	




          June 27, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 94-1816                           NICHOLAS A. PALMIGIANO, ET AL.,                                Plaintiffs, Appellees,                                          v.                                BRUCE SUNDLUN, ET AL.,                                Defendants, Appellees.                                                                                      __________                                   KEITH A. WERNER,                                Plaintiff, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Keith A. Werner on brief pro se.            _______________            Alvin J. Bronstein, Mark J. Lopez,  and National Prison Project of            __________________  _____________       __________________________        the American Civil Liberties Union Foundation, on  brief for appellees        _____________________________________________        Nicholas A. Palmigiano, et al.            Jeffrey  B. Pine,  Attorney  General, Maureen  G.  Glynn,  Special            ________________                      __________________        Assistant  Attorney  General, and  Anthony  A.  Cipriano, Chief  Legal                                           _____________________        Counsel,  Rhode  Island  Department   of  Corrections,  on  brief  for        appellees Bruce Sundlun and Rhode Island Department of Corrections.                                 ____________________                                 ____________________                 Per  Curiam.     In  this   long-standing  class  action                 ___________            involving  prison conditions in Rhode Island, plaintiff Keith            Werner  (a non-named  member of  the class)  appeals  from an            order  denying his motion  to be  excluded from  a settlement            agreement recently  adopted by the district court.  The class            was  certified back  in 1976  as one  under Fed.  R.  Civ. P.            23(b)(2).    As  plaintiff  himself  concedes,  there  is  no            automatic  right to opt-out of  a Rule 23(b)(2)  class.  See,                                                                     ___            e.g., Ticor  Title Ins. Co. v.  Brown, 114 S. Ct.  1359, 1361            ____  _____________________     _____            (1994).   Even if the district court had discretion to permit            a  class  member  to  opt-out  in  this  context, see,  e.g.,                                                              ___   ____            Crawford v. Honig, 37 F.3d 485,  487 n.2 (9th Cir. 1994), the            ________    _____            refusal to  do so cannot be  deemed error in a  case, such as            this,  where only  equitable  relief has  been  sought.   See                                                                      ___            Palmigiano v. Garrahy,  443 F. Supp.  956, 959 (D.R.I.  1977)            __________    _______            ("No  damages are sought in this action.").  And the concerns            underlying plaintiff's  request prove misplaced in any event.            We decline to consider  the various constitutional challenges            advanced  on appeal to the absence of an opt-out procedure in            Rule 23(b)(2) proceedings,  inasmuch as  plaintiff failed  to            raise  them below.   For  the same  reason, we  disregard his            argument  that  the class  should  have  been decertified  or            restructured at some point in the past.                 Assuming arguendo that plaintiff  has standing to  raise                          ________            the issue, we also reject his perfunctory suggestion that the            district court abused its discretion in adopting the  decree.            Having reviewed the agreement in full, we find its provisions            to be "fair, adequate,  and reasonable."  Durrett  v. Housing                                                      _______     _______            Auth.  of City  of Providence,  896 F.2d  600, 604  (1st Cir.            _____________________________            1990); accord, e.g., Conservation Law Foundation v. Franklin,                   ______  ____  ___________________________    ________            989 F.2d 54,  58-59 (1st Cir.  1993).  We  likewise find  the            other  criteria  enumerated in  Durrett  to  have been  fully                                            _______            satisfied.                 The  judgment  is  affirmed.     Appellant's  motion  to                 ________________________________________________________            supplement his reply brief is denied.            _____________________________________                                         -3-
