                                                                                       PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT

                             -------------------------------------------
                                                                                     FILED
                                          No. 97-6773                    U.S. COURT OF APPEALS
                            --------------------------------------------   ELEVENTH CIRCUIT
                                                                                 09/28/98
                          D. C. Docket No. CV-79-G-301-NW                     THOMAS K. KAHN
                                                                                  CLERK

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,

           versus


ALABAMA DEPARTMENT OF CORRECTIONS, JOE S. HOPPER,
Commissioner of the Alabama Department of Corrections,

                                                               Defendants-Appellants.


                  ----------------------------------------------------------------
                   Appeal from the United States District Court
                         for the Northern District of Alabama
                  ----------------------------------------------------------------

                                   (September 28, 1998)


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


_______________
*    Honorable William Stafford, Senior U.S. District Judge for the
     Northern District of Florida, sitting by designation.
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




                    2
   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




                         3
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 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




                      4
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)




                     5
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




                        6
criteria in Section 3626(b)(2).    See id. §


3626 (b)(3).


     The parties dispute whether a “current


and ongoing” violation of a federal right

                                        1
exists at the Lauderdale County Jail.       If



 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

                      7
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.



violation of a federal right.   See Rhodes v.
Chapman, 452 U.S. 337, 347-48 (1981).   The
only issue truly before us is whether the
district court’s other written findings
demonstrate a current and ongoing
violation.

                     8
     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 Congress

            2
intended.       But, Alabama’s



 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

                        9
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



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 (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).

                     10
injunction is dissolved.      This


interpretation may possibly also give


too little weight to the prospective

                                     3
nature of the word “ongoing.”


     The County has advanced a broader


interpretation of “current and


ongoing.”    In the district court, the




 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).

                         11
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




                      12
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




                        13
for clear error, we do see reversible


error.


   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.




                      14
     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

           4
system.”       We question the usefulness of



 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.

                         15
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




We assume, therefore, the district court
amended its opinion to take judicial
notice of the newspaper article.

                        16
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




                       17
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


(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




                     18
state prisoners in county jails will recur.


That the contempt 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)




                       19
(“[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

                        5
U.S. 237, 248 (1991).       To follow the Court’s



 5
  Dowell makes this statement for
consent decrees, but consent decrees and

                            20
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,




injunctions are interchangeable in this
context.   See System Fed’n No. 91 v.
Wright, 364 U.S. 642, 650-51 (1961).

                       21
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.




                      22
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

             6
regularly.



 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

                       23
    From the record made in the district


court, we conclude, as a matter of law,


that no substantial and very real


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.


                        24
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.




                       25
