                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 5 2002
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

RICKY TYREE,

            Plaintiff - Appellant,

and

ROBERT M. WILLIAMS; UNITED                               No. 01-7037
STATES OF AMERICA,                                  (D.C. No. 72-CV-95-B)
                                                       (E.D. Oklahoma)
            Plaintiffs,

v.

RON WARD, Director; DAN
REYNOLDS, Warden of Oklahoma
State Penitentiary; CALVINO S.
MUSE, HUGH REED, WILLIAM
EVANS, PHIL DESSAUER; JOE R.
MANNING, JR., GREGORY H.
HALL, and DANIEL BINTZ,
Members of the Oklahoma Board of
Corrections,

            Defendants - Appellees.




                          ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Ricky Tyree appeals the district court’s order discharging the

remaining injunctions in the Oklahoma prisoner class action suit initiated by

former class representative Bobby Battle in 1972. Because plaintiff has not

demonstrated that the district court erred in finding no ongoing constitutional

violations, we affirm.

       This longstanding class action raised claims that the conditions in

Oklahoma prisons were so inadequate that they violated the constitutional rights

of the inmates incarcerated within the state system. The federal district court

agreed that the conditions of confinement in the early 1970’s violated the

inmates’ constitutional rights and issued a series of injunctions requiring the

Oklahoma Department of Corrections (DOC) to remedy the violations.        See

Battle v. Anderson , 376 F. Supp. 402 (E.D. Okla. 1974);   Battle v. Anderson ,

447 F. Supp. 516 (E.D. Okla. 1977). One of these injunctions prohibited the DOC

from any further racial discrimination and required that future cell assignments be

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made without regard to race.    Battle , 376 F. Supp. at 428. A second injunction

required a minimum square footage per inmate and prohibited placing more than

one prisoner in each cell.   Battle , 447 F. Supp. at 526. Since then, there have

been numerous proceedings in the case.

       In 1979, the State of Oklahoma presented to the district court a plan to

build several modern penal facilities to alleviate the overcrowding. Although

these institutions were built according to plan, during the same years the State

faced a tremendous increase in crime, and therefore, an increase in prisoners.

In December 1981, the Oklahoma DOC declared a state of emergency regarding

its prison population, and sought the court’s permission to double cell inmates.

In January 1982, the court granted permission for double celling, and in April

1982, the court granted the DOC such authority indefinitely.

       In October 1982, after several evidentiary hearings, the district court found

that the inmates were not currently housed under unconstitutional conditions,

despite the double celling. We affirmed, holding that the Supreme Court’s

decision in Rhodes v. Chapman , 452 U.S. 337, 347 (1981), that double celling in

the Ohio prison system did not violate the Eighth Amendment, controlled in our

case based on the undisputed evidence that Oklahoma prisons equaled the Ohio

space allowances and generally provided better conditions than the Ohio system.

See Battle v. Anderson , 708 F.2d 1523, 1533-36 (10th Cir. 1983).


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       In December 1983, the district court held that because the prisons had been

constitutional since October 1982, all of the      Battle claims should be dismissed,

but that the injunctions should remain in place. We affirmed in part and reversed

in part, holding that the court correctly dismissed all claims except for the racial

discrimination claim. We specifically reiterated that the conditions of

confinement in the Oklahoma system did not violate the Eighth Amendment under

Rhodes . See Battle v. Anderson , 788 F.2d 1421, 1427-29 (10th Cir. 1986).

       In 1996, Congress enacted the Prison Litigation Reform Act, Pub. L.

No. 104-134, 110 Stat. 1321 (PLRA). The PLRA included a provision that prison

conditions injunctions should be dismissed after two years unless the court found

“current and ongoing” constitutional violations. 18 U.S.C. § 3626(b). Beginning

in 1997, the parties began negotiating a settlement agreement which was

submitted to the district court on June 29, 1999. On February 29, 2000, the

district court entered an order dismissing all injunctions in the    Battle litigation

except those pertaining to overcrowding, conditions of confinement, medical care,

and racial discrimination.

       On January 26, 2001, plaintiff-intervenor United States stipulated to the

district court that, as a result of an agreement with defendants, there were no

longer “any current and ongoing violations of the inmates’ Federal rights on

a systemic basis in regards to overcrowding, conditions of confinement, and racial


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segregation and discrimination in the Oklahoma prison system.” Supp. R.,

Doc. 1848 at 2. On that same date, the district court dissolved the injunction

regarding the adequacy of medical care. On January 30, after a hearing, the

district court dissolved the remaining injunctions and dismissed the race

discrimination claim, finding that there were no longer any “current and ongoing”

constitutional violations.

      Plaintiff appealed the district court’s orders of January 26 and January 30,

2001. Before we address the merits of plaintiff’s arguments, we must determine

whether we have jurisdiction over this appeal.     See Steel Co. v. Citizens for

a Better Env’t , 523 U.S. 83, 94-95 (1998) (holding the “requirement that

jurisdiction be established as a threshold matter . . . is inflexible and without

exception”) (quotation omitted).

      Defendants argue that plaintiff lacks standing to pursue the appeal because

he was not a named party or an intervenor in the underlying case. The United

States Supreme Court has held recently that “class members . . . who have

objected in a timely manner to approval of the settlement at the fairness hearing

have the power to bring an appeal without first intervening.”     Devlin v.

Scardelletti , 122 S. Ct. 2005, 2013 (2002). The Court also clarified that this was

not a jurisdictional issue because plaintiff, as a member of the class bound by the




                                            -5-
decision, had a sufficient interest in the case to meet constitutional requirements.

Id. at 2009.

       Here, plaintiff filed a “Motion for Immediate/Emergency Injunctive Order”

in the district court on July 14, 2000, raising the issues of ongoing overcrowding,

forced double celling of incompatible inmates, and inadequate medical services.

Supp. R., Doc. 1765. Because plaintiff is     pro se , we will construe this pleading

as an objection to the impending closure of the class action.    See Haines v.

Kerner , 404 U.S. 519, 520-21 (1972) (holding that      pro se pleadings are to be

construed liberally). Accordingly, plaintiff is entitled to appeal the district

court’s rejection of his objections to the dismissal of the injunctions.

       Plaintiff’s appellate brief raises a host of issues which were not addressed

by the district court’s orders, and which should be raised, if at all, in a separate

civil rights action.   McNeil v. Guthrie , 945 F.2d 1163, 1166 n.4, 1167 (10th Cir.

1991) (explaining that class members may bring individual lawsuits when their

claims “are not being litigated within the boundaries of the class action”).

       Plaintiff’s primary argument is that the injunctions should not have been

dismissed because the constitutional rights of Oklahoma prisoners are still being

violated by the overcrowding, double celling, and forced racial integration.

Although plaintiff recites facts which he believes show ongoing violations of the

inmates’ rights, he does not cite to any evidence in the record, despite the


                                            -6-
numerous evidentiary hearings before the district court regarding the Oklahoma

DOC’s compliance with the injunctions. The anecdotal statements in plaintiff’s

brief are not evidence, and are insufficient to show that the district court clearly

erred in finding no ongoing constitutional violations.

      Further, plaintiff’s arguments misconstrue the law. Although it is true that

the district court initially held that double celling violated the inmates’ rights,

the United States Supreme Court has since clarified that double celling, in itself,

does not violate the Eighth Amendment to the Constitution.      Rhodes , 452 U.S.

at 347-50. Plaintiff’s arguments that double celling violates state law or prison

recommendations does not raise an argument under the United States

Constitution. Further, Oklahoma’s policy of random cell assignments was an

outcome of this lawsuit, which held that segregated cell assignments constituted

unacceptable racial discrimination.   See Battle , 376 F. Supp. at 428 (ordering that

cell assignments be made without regard to race).

      In addition to plaintiff’s appeal, we have received applications from the

following inmates seeking to intervene in the appeal: William T. Alexander

(#255275); Ronald A. Arms (#186723); Billy K. Beesley (#161023); Anthony W.

Bradshaw (#205273); Dewayne Butler (#114112); Jimmie W. Cargill (#152821);

Thomas Lee Case (#392449); Hezekiah J. Colbert (#375192); Richard D. Colbert

(#210758); Marco L. Cooper (#391118); Robert Cotner (#93780); Lloyd W.


                                           -7-
Culifer (#400841); Allen R. Curtis (#259393); Ralph W. DeJarnett (#211871);

Christopher Dries (#397540); Jessie D. Duffield (#98611); Christopher L. Fields

(#245396); Billy D. Harmon (#98725); Carroll E. Huff (#unknown); Mark W.

Hurley (#261195); Loy L. Kerns, Jr. (#167798); Maurice Lovelace (#unknown);

Jackie Manis (#242979); Kim L. Mason (#125881); Dennis W. McDowell

(#89233); Douglas R. Parker, Jr. (#387955); Ralph E. Phillips (#90140);

Charles M. Pyron II (#227708); Kenneth W. Rakestraw (#247062);

Rev. T.L. Rhine (#85629); Richard Rodriguez, Jr. (#240364); Dezi Roman

(#383728); Robert V. Ruback (#392709); Louis Ruffin (#unknown); Richard

Dean Smith (#107954); Randy E. Strong (#188005); Billy Gene Sudderth

(#219571); Robert T. Sullivan (#408398); Lincoln E. Taylor (#123272);

Donald L. Townsley (#120136); Mickey R. Traylor (#375540); Lance E.

Waggoner (#248111); Calvin Ray Westfield (#280941); James A. Wheeler

(#233623); and Eugene M. Young (#376471).

      Because none of these inmates filed a timely notice of appeal, they are not

parties before this court. Nor have they demonstrated entitlement to intervene

pursuant to Federal Rule of Civil Procedure 24(a), because they have not shown

that a federal statute confers an unconditional right to intervene, or that plaintiff

Tyree’s appeal is inadequate to represent the interests of the remaining inmates.

Therefore the inmates’ motions to intervene are denied.


                                          -8-
      All outstanding motions are DENIED, and the judgment of the United

States District Court for the Eastern District of Oklahoma is AFFIRMED.


                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




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