238 F.3d 14 (1st Cir. 2001)
JAAN LAAMAN, ET AL., Plaintiffs, Appellants,v.WARDEN, NEW HAMPSHIRE STATE PRISON, ET AL., Defendants, Appellees.
No. 00-1052
United States Court of Appeals For the First Circuit
Heard September 15, 2000Decided January 17, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Elliott Berry with whom Alan Linder, and New Hampshire Legal  Assistance, were on brief, for appellants.
Daniel J. Mullen, Senior Assistant Attorney General, with whom Philip T. McLaughlin, Attorney General, was on brief, for appellees.
Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.
TORRUELLA, Chief Judge.


1
A 1975 civil rights suit by inmates  in New Hampshire State Prison ultimately resulted in a consent decree,  which was amended in 1990.  In response to a 1993 suit alleging  contempt of that decree, and pursuant to the Prison Litigation Reform  Act of 1995 (the "PLRA"), 18 U.S.C. § 3626, prison officials  successfully moved to terminate the decree.  The principal issue on  appeal is when, if ever, must the district court afford inmates who  allege "current and ongoing" violations of federal rights the  opportunity to supplement the existing record.

BACKGROUND

2
This proceeding has a complex procedural history, which we  summarize for the purpose of this appeal.


3
In 1975, inmates at the New Hampshire State Prison in Concord  (the "Prison") filed individual civil rights actions (later  consolidated into a class action) against state officials in federal  district court pursuant to 42 U.S.C. § 1983.  Laaman v. Helgemoe, 437  F. Supp. 269, 275 (D.N.H. 1977).  In an extensive opinion, the court  made "specific findings" that prison conditions violated inmates'  Eighth Amendment rights, id. at 323-25, and issued a sixteen-part order  specifying required relief, id. at 325-30.  The order was implemented  in a consent decree approved by the court on August 10, 1978, which was  later amended by a second consent decree approved on May 22, 1990. Judge Devine, who had inherited the case from then-District Judge  Bownes, approved the second decree.  The amended decree provided that  the district court would "retain jurisdiction . . . for the purpose of  assuring compliance" until July 1, 1993.


4
Two weeks prior to the expiration of the district court's  jurisdiction, the inmates filed a civil contempt motion alleging that  prison officials had failed to comply with the decree.  Although the  district court determined the necessary level of compliance to avoid a  finding of contempt and held an evidentiary hearing in December of  1995, no order issued.  Upon Judge Devine's death in February of 1999,  the case was reassigned to Judge Barbadoro, with the motion for  contempt still pending.  Mindful that the PLRA had "significantly  changed the rules governing consent decrees addressing prison  conditions,"1 Judge Barbadoro ordered the plaintiffs to "explain[] why  the Consent Decree should not be terminated and the pending Motion for  Contempt be deemed moot."  Laaman v. Powell, Civil Nos. 75-258-SD/B,  77-256-SD/B, 87-301-SD/B (D.N.H. April 20, 1999) [hereinafter Laaman,  April 20 Order].  The district court then terminated the decree in a  June 15, 1999 order, holding that "[t]he findings called for in  § 3626(b)(2) were never made," and that "plaintiffs have failed to  demonstrate that a basis currently exists for finding that the decree  'extends no further than necessary to correct the violation of the  Federal right,' or that the decree is 'narrowly drawn and the least  intrusive means to correct' any alleged violations of the plaintiffs'  federal rights."  Laaman v. Powell, Civil No. 75-258-B (D.N.H. June 15,  1999) [hereinafter Laaman, June 15 Order].  Plaintiffs, noting that  § 3626(b)(3) limits termination in certain cases of "current and  ongoing" violations of federal rights, and claiming that the delay in  disposition had prejudiced them unfairly, appealed to this Court.

DISCUSSION

5
First, appellants argue that the PLRA, specifically  § 3626(b)(3), requires that a district court allow plaintiffs an  opportunity to present evidence prior to exercising its termination  power under § 3626(b)(2), and that they were denied this opportunity. Second, in the absence of such a statutory mandate, they suggest that  the district court abused its discretion here by failing to provide  plaintiffs an opportunity to supplement the existing record.  Third,  two remaining issues not directly considered by the parties - the  district court's actual rationale and the scope of further proceedings  - require attention.


6
* Whether the PLRA requires that inmates be given an  opportunity to supplement the existing record is purely a question of  statutory interpretation, and as such, we afford it de novo review. Rouse, 129 F.3d at 653-54.  We begin with the language of the statute  itself.  Stowell v. Ives, 976 F.2d 65, 69 (1st Cir. 1992).  In so  doing, we assume that the words of the statute comport with their  ordinary meaning, and that their ordinary meaning accurately expresses  legislative intent, FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990), only  resorting to legislative history or other aids of statutory  construction in the case of ambiguity or an unreasonable result, United  States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.  1987).


7
The PLRA does not specifically provide for an evidentiary  hearing prior to termination of a consent decree.  Cagle v. Hutto, 177  F.3d 253, 258 (4th Cir. 1999), cert. denied, 120 S. Ct. 2723 (2000). 18 U.S.C. § 3626(b)(2) provides for the "immediate termination of  prospective relief if the relief was approved or granted in the absence  of a finding by the court that the relief is narrowly drawn, extends no  further than necessary to correct the violation of the Federal right,  and is the least intrusive means necessary to correct the violation of  the Federal right."2  However, § 3626(b)(3) expressly limits the court's  termination power, noting that "[p]rospective relief shall not  terminate if the court makes written findings based on the record that  prospective relief remains necessary to correct a current and ongoing  violation of the Federal right, extends no further than necessary to  correct the violation of the Federal right, and that the prospective  relief is narrowly drawn and the least intrusive means to correct the  violation" (emphasis added).  Several courts have read these two  sections together as creating a gap that might be filled by an  evidentiary hearing.  See Benjamin v. Jacobsen, 172 F.3d 144, 165-66  (2d Cir.), cert. denied sub nom. Benjamin v. Kerik, 528 U.S. 824 (1999)  (noting that the (b)(3) requirement of "written findings" meant that  the "immediate termination" of (b)(2) was necessarily less than  instantaneous); see also Berwanger v. Cottey, 178 F.3d 834, 839 (7th  Cir. 1999) ("immediate" in (b)(2) does not mean "instant," given that  court needs "time to make finding" called for in (b)(3)).  Because the  PLRA does not on its face address whether the district court must make  these written findings when the conditions of (b)(3) are met, nor does  it explain how a court could make written findings of current conditions on the basis of a stale record, courts have suggested that  there are circumstances in which additional evidentiary findings are  appropriate or even necessary prior to termination.  See Hadix v. Johnson, 228 F.3d 662, 671-72 (6th Cir. 2000); Gilmore v. California,  220 F.3d 987, 1008, 1010 (9th Cir. 2000); Cagle, 177 F.3d at 258; Loyd v. Alabama Dep't of Corr., 176 F.3d 1336, 1342 (11th Cir.), cert.  denied, 528 U.S. 1061 (1999); Benjamin, 172 F.3d at 165-66 ("Evidence  presented at a prior time . . . [can] not show a violation that is  'current and ongoing.'"  As a result, "the record" referred to in  (b)(3) "must mean a record reflecting conditions as of the time  termination is sought.").


8
The other courts of appeals that have assessed whether the  PLRA requires an evidentiary hearing prior to termination of a consent  decree have reached somewhat different results as to when such a  hearing is required.  In Benjamin, the Second Circuit interpreted  § 3626(b) "to mean that, when the plaintiffs so request . . . the  district must allow the plaintiffs an opportunity to show current and  ongoing violations of their federal rights."  Id. (emphasis added); see  also Hadix, 228 F.3d at 671-72 ("[T]he party opposing termination must  be given the opportunity to submit additional evidence.").  The  Eleventh Circuit, although it did not find that an evidentiary hearing  was mandated by statute, found that a district court's refusal to hold  such a hearing constituted an abuse of discretion, even when current  reports were being provided to the court.  See Loyd, 176 F.3d at 1342. The Fourth Circuit has placed a higher burden on the plaintiff, holding  that a district court "may, in its discretion conduct a pretermination  evidentiary hearing," but that it "at a minimum . . . must hold such a  hearing when the party opposing termination alleges specific facts  which, if true, would amount to a current and ongoing constitutional  violation."  Cagle, 177 F.3d at 258 (emphasis added).


9
Although we did not specifically address this issue in Rouse,  we suggested a similar approach to that taken by the Eleventh Circuit  in Loyd, albeit with more weight given to the district court's  familiarity with the consent order and subsequent proceedings.  The Rouse plaintiffs had argued that in the absence of findings to satisfy  the (b)(2) burden, "the district court should have conducted an inquiry  into whether a violation of a federal right exists currently."  Rouse,  139 F.3d at 661.  We noted "the district court's intimate familiarity  with this protracted litigation [and] its informed evaluation of  current prison conditions."  Id. at 662.  Our decision not to require  further evidentiary findings was based partly on the fact that the Rouse court had been receiving periodic reports as to the incidents  covered by the consent decree.  Id.


10
We think the approach hinted at in Rouse is the correct one. As the Fourth Circuit said in Cagle, the plain language of § 3626(b) is  reasonably clear.  If Congress had wished to create a right to an  evidentiary hearing for plaintiffs, it certainly could have done so. Cagle, 177 F.3d at 258.  However, we are unwilling to rob the (b)(3)  limitation of all force, or to leave its application entirely to the  unreviewed discretion of the district court.  Despite the PLRA's  general unfriendliness toward the continuation of existing consent  decrees, Congress clearly anticipated that a district court might make  "written findings based on the record" of "current and ongoing  violation[s]."  It is hard to imagine how a district court could ever  make such written findings without an updated record.  In certain  circumstances, then, it would seem an appropriate use of the court's  discretion to hold an evidentiary hearing; similarly, in certain  circumstances it would be an abuse of that discretion to deny  plaintiffs an evidentiary hearing once requested.

B

11
Given that they are not entitled by statute to an evidentiary  hearing, plaintiffs argue that in this case the district judge abused  his discretion by not holding a hearing.  We first assess whether  further evidence was necessary in this case, and then determine whether  plaintiffs in fact lacked the opportunity to supplement the record.


12
We should start by noting that if any record would benefit  from supplementary findings, it would be this one.  Although an  extensive trial record exists, no fact-finding took place after 1995. "Evidence presented at a prior time [can]not show a violation that is  'current and ongoing.'"  Benjamin, 172 F.3d at 166.  At times, an  evidentiary hearing is not necessary because the district court has a  comprehensive knowledge of whether a prison is, or is not, continuing  to violate the consent decree.  See Rouse, 129 F.3d at 662 (district  court had been receiving periodic evaluations).  But see Loyd, 176 F.3d  at 1342 (possession of eleven reports, the most recent two months  prior, by district court, insufficient).  Not only had the district  court here received no further information on potential violations  between the 1995 trial and the 1999 ruling, but the case had been  transferred to an entirely different judge who lacked any intimate  knowledge of the prison conditions or the circumstances of the decree. Cf. Rouse, 129 F.3d at 661 ("A trial court generally is thought to be  the best interpreter of its own prior rulings and findings, and this  case is no exception.") (internal citations omitted).  The attenuated  and inevitably disjointed history of the present case suggests that the  ordinary factors counseling reliance on the district court's  familiarity with the case are lacking here.


13
Appellee argues that the district court did not abuse its  discretion because it allowed the plaintiffs to supplement their  findings in a memorandum, received that memorandum, and found that  plaintiffs had not met their burden under (b)(3).  The district court  did request that plaintiffs "explain[] why the Consent Decree should  not be terminated and the pending Motion for Contempt be deemed moot." Laaman, April 20 Order.  Plaintiffs filed a memorandum on May 15, 1999,  highlighting the evidence of Eighth Amendment violations committed  prior to 1995 that was contained in the existing record.  The district  court then found that "plaintiffs have failed to demonstrate that a  basis currently exists for finding that the decree 'extends no further  than necessary to correct the violation of the Federal right,' or that  the decree is 'narrowly drawn and the least intrusive means to correct  any alleged violations of the plaintiffs' federal rights."  Laaman,  June 15 Order.


14
Of course, the district court could not have abused its  discretion if it did, in actuality, grant plaintiffs the opportunity to  supplement the evidentiary record, and they simply neglected to do so. However, although the April 20 Order could have been understood as an  opportunity for plaintiffs to supplement the record with more  contemporaneous allegations of constitutional violations, it could also  have been interpreted as a limited request for plaintiffs to highlight  the most heinous parts of the already existing record.  See Laaman,  April 20 Order at 2 ("It does not appear from a review of the record that the Laaman Consent Decree can survive.") (emphasis added). Plaintiffs apparently did not interpret the April 20 Order as a request  to enhance the record or introduce new allegations of harm.  Although  plaintiffs' discussion of (b)(3) in their responsive memorandum noted  that "the record may include supplemental information," the extensive  list of constitutional violations presented in their response only  addressed those which had occurred prior to 1995 and were already  contained in the record.  Moreover, neither the district court's June  15, 1999 Order nor its June 30, 1999 Order (following plaintiffs'  Motion to Alter or Amend) suggested that the failure to provide  supplementary evidence of current and ongoing violations was relevant  to the decision.


15
Given our holding in Rouse and the similar approaches taken  by other courts of appeals that have reached this issue, we think that  in certain cases the PLRA allows a plaintiff the opportunity to present  evidence consistent with § 3626(b)(3) prior to the termination of a  consent decree under § 3626(b)(2).  The scope of that evidentiary  presentation is a matter of discretion for the district court; however, Rouse contemplates that the district court exercise that discretion  based on its familiarity with the record and with any "current and  ongoing" violations that might not appear in the record due to its age,  while considering the PLRA's bias toward the termination of consent  decrees.  In this case, given the peculiar circumstances of the  litigation, the severe potential for prejudice upon termination of the  consent decree, and the substantial evidence of violations prior to  1995, the district court should have more clearly indicated its  evidentiary requirements in the April 20 Order, or at the very least  given plaintiffs an opportunity to amend their May 15 pleading to  address supplementary allegations.  To simply terminate without  allowing plaintiffs such an opportunity was an abuse of the district  court's discretion.

C

16
There remain two issues requiring brief comment.  One relates  to the district court's June 15, 1999 order in which the court declared  that the existing consent decree did not meet the conditions of  § 3626(b)(2) and went on to say the following:


17
Moreover, plaintiffs have failed to demonstrate  that a basis currently exists for finding that  the decree "extends no further than necessary to  correct the violation of the Federal right" or  that the decree is "narrowly drawn and the least  intrusive means to correct" any alleged  violations of the plaintiffs' federal rights. Accordingly, the Consent Decree must be  terminated.


18
Laaman, June 15 Order.  This determination was repeated in substance in  the court's June 30, 1999 order.


19
What may be buried in this paragraph and account for the  ultimate result is a double assumption: that no matter what the  plaintiffs showed in an evidentiary hearing, nothing in that showing  could in light of the new statutory requirements justify a continuation  of this consent decree; and that the only option permitted was to  terminate the decree while reserving (as the June 15 order did)  "plaintiffs right to seek relief from any further alleged Eighth  Amendment violation in separate actions."  The first assumption may  well be right, given the stringent conditions attached to the "is not  terminated" provision in § 3626(b)(3).  But the second assumption,  which we may be misattributing to the district court's order, does not  seem to us correct.


20
The "limitation" provision, preserving an option to  perpetuate an existing decree even though the now required findings  were "absen[t]" when the "relief was [originally] approved or granted,"  § 3626(b)(2), is not in our view limited to cases where current  violations exist and the statutory findings can now be made as to the original decree.  Rather, while the statutory language is not perfectly  clear, it appears to us likely that the limitation provision assumes  that the district court may modify the decree so that it both addresses  the current violation and conforms to the statutory requirements ("no  further than necessary, etc.).  See Gilmore, 220 F.3d at 1007-08.


21
Such a reading would appear to serve Congress's double  purpose of assuring that there is still a "current and ongoing  violation" to justify an existing decree and also its overriding  purpose that all such decrees rest on findings that show that the  decree is no broader than necessary, in the terms set forth in both  § 3626(b)(2) and (b)(3).  Since this legal issue has not fully been  argued by the parties, we do not foreclose the district court from  considering it further after full briefing; but as presently advised  the court's apparent rationale quoted above seems to us mistaken.


22
The other issue that warrants brief comment but, again, not  a resolution, is what options are open to the district judge if, on  remand, he should find that a current and ongoing violation exists.  In  our view it should not be assumed that the district court is then  automatically required to alter the consent decree and make the  statutory findings that would permit the decree to continue.  But seeGilmore, 220 F.3d at 1008 (holding to the contrary).  Imagine, for  example, that the evidentiary hearing shows few or limited violations  that could more appropriately be rendered by terminating the present  case and allowing an individual to press a new suit in which a fresh  decree could be addressed directly to these issues.


23
However, it seems to us that the legal issues thus raised and  the judgments called for are more reasonably made only after the  district court has had an opportunity in an evidentiary hearing to get  a fuller picture of what "current and ongoing violation[s]" of federal  rights, if any, still exist.  If there are none - and the burden  remains on the plaintiffs to show that such violations persist - the  question of perpetuating this case and molding new but narrower relief  will be moot; conversely, if violations are shown, the court will have  a more developed context for answering the legal and policy questions  that we have noted but on which we reserve judgment.

CONCLUSION

24
Plaintiffs should have the opportunity to demonstrate  "current and ongoing" violations of constitutional rights that would  prevent termination of the Consent Decree pursuant to § 3626(b)(3). Whether this determination may be facilitated by proffered showings and  briefings in the first instance or whether a full-fledged evidentiary  hearing is required before further action is a matter for the  discretion of the district court.  The decision below is vacated and  remanded for further action consistent with this opinion.



Notes:


1
   The PLRA, in part, sought "to oust the federal judiciary from day-to-day prison management" and serve as a "last rite" for many consent  decrees.  Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655  (1st Cir. 1997) (citing 141 Cong. Rec. 14,419 (1995)).  This "ambient  intent" provides the basis for the general unfriendliness of the PLRA  toward existing consent decrees, the termination of which this Court  has held to be constitutional and provided for by statute.  Id. at 655-61.


2
   Given the extensive nature of the consent decree here and the fact  that it long pre-dated the enactment of the PLRA, neither side contends  that this consent decree meets the (b)(2) requirements.  Cf. Rouse, 129  F.3d at 661 (finding it implausible, on the record, that (b)(2)  requirements were met by prior factual findings).


