                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 96-1018
                                    ___________

George Goff;                           *
                                       *
            Plaintiff-Appellee,        *
                                       *
Allen Langley, Class Representative;   *
Tim Thompson, Class Representative; *
                                       *
            Plaintiffs,                * Appeals from the United States
                                       * District Court for the
      v.                               * Southern District of Iowa.
                                       *
Charles Harper; Ronald Welder;         *
John Henry; Gerardo Acevedo,           *
Warden;                                *
                                       *
            Defendants-Appellants.     *
                                  ___________

                                    No. 99-3217
                                    ___________

George Goff; Allen Langley, Class       *
Representative; Tim Thompson, Class     *
Representative;                         *
                                        *
            Plaintiffs-Appellees,       *
                                        *
Michael A. Bartnick;                    *
                                        *
            Intervenor Plaintiff,       *
      v.                                *
                                         *
Charles Harper;                          *
                                         *
              Defendant-Appellant,       *
                                         *
Ronald Welder; John Henry;               *
                                         *
              Defendants,                *
                                         *
Gerardo Acevedo, Warden; James           *
Helling; Paul Hedgepeth, Deputy          *
Warden; John Emmett, Security            *
Director; James McKinney, Deputy         *
Director of Corrections in charge for    *
institutions for the State of Iowa;      *
                                         *
              Defendants-Appellants.     *
                                    ___________

                               Submitted: September 13, 2000

                                    Filed: December 19, 2000
                                     ___________

Before RICHARD S. ARNOLD, LAY and FAGG, Circuit Judges.
                           ___________

LAY, Circuit Judge.


       Inmates in lockup at the Iowa State Penitentiary (“ISP”) brought a claim against
Charles Harper and other Prison Officials (“Prison Officials”) based on constitutional
violations in long-term lockup at ISP. In 1994, before the merits of the case were
heard, the district court granted the inmates a preliminary injunction based on the denial
of time-cuts from their lockup time. Prison Officials appealed the injunction at that
time.

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       Prison Officials now appeal the denial of their motion to dismiss. Prison
Officials argue that previous consent decrees bar the action based on subject matter
jurisdiction. The district court found that there existed subject matter jurisdiction; we
agree.

       Prison Officials also appeal the district court’s finding of constitutional violations
at ISP. After concluding that violations existed, the district court ordered Prison
Officials to submit a Plan to correct the violations. The district court approved the
fourth Plan submitted by Prison Officials who subsequently implemented their Plan.
Despite such implementation, Prison Officials appeal the district court’s finding on the
ground that it is clearly erroneous and establishes a bad precedent.

                                      I. Background

       On July 6, 1990, George Goff (“Goff”), an inmate at ISP, filed a Complaint
against Prison Officials based on 42 U.S.C. § 1983. Goff claimed that the harsh
disciplinary sanctions associated with lockup were violating his Eighth and Fourteenth
Amendment rights.

        On August 7, 1990, Prison Officials moved to dismiss the Complaint on the basis
that it presented broad and conclusory claims. The district court allowed Goff to
amend his Complaint and the court ruled that the Amended Complaint satisfied the
requirements of Rule 12 of the Federal Rules of Civil Procedure and denied the motion
to dismiss.

       On December 14, 1993, Goff filed a Motion for Preliminary Injunction, asking
that Prison Officials, specifically Charles Harper, an Administrative Law Judge, and
Ron Welder, the Executive Assistant to the Warden, not be involved in any of his
disciplinary matters. The court granted the injunction. Prison Officials appealed the
injunction, and on July 26, 1995, this court found that the district court had abused its

                                            -3-
discretion, vacated the injunction, and remanded the case. See Goff v. Harper, 60 F.3d
518, 521 (8th Cir. 1995).

       In May and August of 1994, Goff’s case went to trial. On November 7, 1994,
Goff filed a second preliminary injunction request, asking the court to prohibit Prison
Officials from denying lockup inmates a time-cut from their lockup time. The district
court granted the injunction and Prison Officials once again appealed. This court
stayed the appeal until the district court issued its final ruling in the case. See Goff v.
Harper, No. 96-1018 (8th Cir. Sept. 6, 1996) (order staying proceedings pending
further order of the court).

       On June 2, 1995, Goff moved for class certification, which was granted on
September 13, 1995. The class is comprised of all persons who have been, are now,
or will be confined in ISP lockup. A second trial was held in March and May of 1996.
After the second trial, the district court granted the motion of Goff and the other
inmates to amend the Complaint alleging constitutional violations concerning mental
health and lack of exercise for those confined to lockup.

       After extensive evidentiary proceedings, on June 5, 1997, the district court filed
a 118-page Order setting forth findings of fact and conclusions of law relating to
constitutional violations by the Iowa State Penitentiary. The court found four
constitutional violations: 1) the violation of substantive due process resulting from the
extraordinarily long lockup sentences; 2) the violation of the Eighth Amendment
resulting from the inadequate mental health treatment received by mentally ill and
mentally disordered inmates; 3) the violation of the Eighth Amendment resulting from
the deprivation of exercise for inmates in lockup during the winter months; and 4) the
violation of the Eighth Amendment resulting from the pandemonium and bedlam the
mentally stable inmates must suffer because they are intermingled with the mentally ill
inmates who either cannot or do not control their behavior.


                                           -4-
       The court directed Prison Officials to file a Plan to remedy the constitutional
violations at ISP. On August 4, 1999, after consideration of three other Plans, the court
approved the fourth Plan filed by Prison Officials.1 Major changes were implemented
by Prison Officials in response to the constitutional violations found by the court. First,
the State of Iowa is building a ten million dollar, 200 bed special needs unit. A second
100 bed unit is to be built in the future. Second, the ISP changed their disciplinary
system, redefining the procedures of lockup and releasing prisoners from
extraordinarily long sentences. In addition, amnesty was declared for inmates as to
disciplinary sentences before July 1, 1998. Finally, accommodations were made to
provide inmates with indoor exercise facilities.

       In the process of establishing a Plan to correct the violations at ISP, Prison
Officials found existing consent decrees at ISP that may require them to seek court
permission to implement their Plan. Because of the earlier consent decrees, Prison
Officials filed a motion to dismiss for lack of subject matter jurisdiction. On
September 20, 1999, the district court denied their motion.

       Prison Officials now appeal the rulings of the district court. Officials argue that
the district court erred in denying their motion to dismiss the case based on lack of
subject matter jurisdiction. In addition, Prison Officials argue that the court erred in
concluding that constitutional violations exist at ISP.




      1
         The court considered the delay in developing a Plan to be almost entirely the
fault of Prison Officials. However, the court credited Prison Officials with developing
a better Plan due to the two Iowa legislative sessions which provided money to make
the improvements possible.

                                           -5-
                                    II. 1996 Appeal

       The present appeal includes a long history. We begin by addressing the appeal
from 1996.2 The appeal was brought by Prison Officials based on a preliminary
injunction granted by the district court. On September 6, 1996, this court stayed the
appeal pending final adjudication of the merits by the district court. The final order was
entered by the district court in August 1999, and Prison Officials filed a new appeal.
This new appeal on the merits was consolidated with the 1996 appeal. As stated,
Prison Officials now concede, in view of the decision on the merits, the 1996 appeal
is moot; we agree.

                             III. Constitutional Violations

A. Consent Decrees

       Prison Officials initially argue that this court lacks subject matter jurisdiction
because the issues covered in the district court’s opinion were previously resolved in
consent decrees. The district court dismissed such arguments. As the district court
found, Prison Officials confuse subject matter jurisdiction with a claim of issue
preclusion. The district court found this issue was not raised in the pleading as an
affirmative defense and was therefore waived. Alternatively, the district court found
that the consent decrees had previously been vacated before the district court’s opinion

      2
        Goff filed a 42 U.S.C. § 1983 claim in the District Court for the Southern
District of Iowa. The inmates claimed that Prison Officials changed the lockup time
reduction practice in September 1994. As a result, inmates who were serving lockup
for assault with serious injury were no longer eligible for time-cuts of lockup time.
Goff requested and was granted a preliminary injunction enjoining Prison Officials from
deeming the inmates ineligible.

                                           -6-
on the merits was filed. This issue requires no discussion. There can be little question
that the vacated consent decrees cannot serve as res judicata.

B. The Merits

       The record indicates, at least at the time of submission of this appeal, Prison
Officials have already implemented a substantial part of the remedies ordered by the
district court.3 Nonetheless, Prison Officials appeal the district court’s finding of
constitutional violations at ISP. Prison Officials do not challenge any of the factual
findings of the district court, but instead argue that the court’s holding on the various
constitutional issues should be set aside as being clearly erroneous. The thrust of
defendants’ argument is that the district court has not followed any established
objective standards in finding constitutional violations.

        A discussion of constitutional violations in a prison setting requires a two-step
analysis. First, we must determine whether the liberty interest asserted by an inmate
is an interest protected by the Constitution. If we find a protected liberty interest exists,
we must balance this interest against a State’s interest in prison safety and security.
See Turner v. Safley, 482 U.S. 78 (1987). In Turner v. Safley, the Supreme Court
explained that “when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Id. at
89.     The Court explained that “such a standard is necessary if ‘prison
administrators . . . , and not the courts, are to make the difficult judgments concerning
institutional operation.’” Id. at 89 (citing Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 128 (1977)).


       3
        At oral argument, Prison Officials confirmed that a “hole in the ground” exists
for the new special needs unit. In addition, mentally ill patients have access to more
psychologists, indoor space has been made for winter exercise, and new procedures are
in place for lockup.

                                            -7-
       In Turner, the Court set forth a balancing test for determining the
constitutionality of restrictions upon prisoners’ rights. In determining whether a
restriction is reasonable, courts should consider: (1) whether there is a valid, rational
connection between the regulation and the interest asserted; (2) whether alternative
means of exercising the right remain open to the prisoner; (3) the effect the requested
accommodation will have on guards, other inmates, and the allocation of prison
resources; and (4) whether there is some alternative which will accommodate the
prisoner’s needs with de minimis impact on the prison’s asserted interests. See Turner,
482 U.S. at 87.

       Without reference to the Turner balancing test,4 the district court concluded that
constitutional violations existed at ISP. The district court applied the appropriate
standards for determining if the conditions at ISP were constitutional, but failed to take
the analysis one step further and balance the liberty interests of the inmates at ISP with
the State’s penological interests. We recognize that this is not a First Amendment case,
like Turner, but in Washington v. Harper, 494 U.S. 210 (1990), the Court resolved any
confusion as to whether the Turner test should be applied beyond First Amendment
cases. The Court explained that:

      Our earlier determination to adopt [the Turner] standard of review was
      based upon the need to reconcile our longstanding adherence to the
      principle that inmates retain at least some constitutional rights despite
      incarceration with the recognition that prison authorities are best equipped
      to make difficult decisions regarding prison administration. These two
      principles apply in all cases in which a prisoner asserts that a prison
      regulation violates the Constitution, not just those in which the prisoner
      invokes the First Amendment. We made quite clear that the standard of
      review we adopted in Turner applies to all circumstances in which the
      needs of prison administration implicate constitutional rights.


      4
          On appeal, neither side makes reference to the Turner case.

                                           -8-
Id. at 223-224.

       Further, in Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990), this court noted that
“[a]lthough Turner is a first amendment case, we believe its analysis equally applies to
other inmates’ rights cases.” Id. at 1099 n.8. The Timm case relied on the Ninth
Circuit case of Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988). In
Michenfelder, the court explained that “[t]hough all our prior decisions employing the
Turner O’Lone analysis have involved infringements of inmates’ first amendment
rights, as were both Turner v. Safley and O’Lone v. Estate of Shabazz, [482 U.S. 342
(1987)] we believe that Turner v. Safley’s suggested factors can be instructive in the
context of other prisoners’ rights cases.” (citations omitted). The court further pointed
out that:

       Not all four factors will be relevant to each case. . . . For example, the
       second Turner factor--availability of other avenues for exercising the right
       infringed upon--is much more meaningful in the first amendment context
       than the fourth or eighth, where the right is to be free from a particular
       wrong.

Michenfelder, 860 F.2d at 331 n.1.

       In applying the Turner standard of review, we deem it far more efficient to allow
the district court to initially apply these balancing principles than for this court. The
district court has spent several years hearing testimony, visually inspecting the prison
environment, and working with counsel. A remand to review its order under the Turner
standards will allow parties to address the issues before the court. We are mindful that
this may delay the ultimate decision in this case. Hopefully the parties may negotiate
their differences during the course of these discussions. We make this observation
particularly in light of the fact that Prison Officials have represented to this court during
oral argument that they in good faith have implemented the Plan approved by the
district court on their own volition and not necessarily in compliance with the court’s

                                            -9-
order. Under the circumstances, we deem it beneficial to all parties to remand the case
to the district court in order to properly review the court’s order under the balancing
principles of Turner v. Safley, 482 U.S. 78 (1987).

      IT IS SO ORDERED.



      A true copy.

             Attest:

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




                                         -10-
