                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 _____________

                                  No. 97-2020
                                 _____________

William R. Cody, individually and on    *
behalf of all other persons similarly   *
situated,                               *
                                        *
              Plaintiff - Appellant,    *
                                        *
Roger Flittie, individually and on      *
behalf of all other persons similarly   *
situated,                               *
                                        *
              Appellants,               *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of South Dakota.
Carole Hillard, President of the Board *
of Charities and Corrections; Frank     *
Brost, Vice President; Ted Spaulding, *
Member; D. A. Gehlhoff, Member; Lyle *
Swenson, Member; James Smith,           *
Executive Secretary; Herman Solem,      *
Warden of the South Dakota State        *
Penitentiary, individually and in their *
official capacities,                    *
                                        *
              Defendants - Appellees.   *

                                 _____________

                          Submitted: December 12, 1997

                               Filed: March 27, 1998
                                    _____________

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                          _____________

JOHN R. GIBSON, Circuit Judge.

       William R. Cody and Roger Flittie, individually and as class representatives,
appeal from the district court's order dissolving the consent decree in this South Dakota
prison reform litigation. Cody and Flittie argue that the district court did not consider
the relevant criteria in deciding whether to dissolve the decree and that the court's
finding that the defendants had complied with the decree substantially and in good faith
was clear error. Cody and Flittie also argue that the district court should have held an
evidentiary hearing before resolving the factual issues of defendants' past and present
compliance with the decree and their future compliance with the Constitution. We
remand for more complete findings and articulation of the basis for the district court's
exercise of its discretion.

        This case was filed in 1982, challenging conditions and practices of confinement
at the South Dakota State Prison and Women's Correctional Facility. On May 31, 1984,
after trial, the district court held that conditions at the South Dakota State Penitentiary
violated the Eighth and Fourteenth Amendments. Cody v. Hillard, 599 F. Supp. 1025,
1062 (D.S.D. 1984). The court's final order was entered on July 8, 1985, covering the
subjects of overcrowding, double-celling, and inadequate quality control and staffing
for health services. We reversed in part and affirmed in part. Cody v. Hillard, 830 F.2d
912 (8th Cir. 1987) (en banc), cert. denied, 485 U.S. 906 (1988). On July 8, 1985, the
court entered a detailed consent decree covering the discrete subjects of environmental
conditions, medical and dental care, psychiatric and psychological care, and access to
courts. The consent decree is the subject of the present motion. The consent decree did
not state the time of its duration, but it did provide that the



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defendants would provide formal progress reports concerning their compliance with the
decree in June, September, and December 1985, and March 1986.

        On two occasions, in July 1987 and May 1992, the district court held hearings
to determine whether the prison was in compliance with the consent decree. After the
July 1987 hearing the district court filed an order "recognizing the earnest steps taken
by the Defendants in addressing the issues raised in this action," but requiring the parties
to appoint a health and safety panel to agree on specific steps to remedy deficiencies in
compliance with the decree. The court also extended the monitoring requirement of the
consent decree through 1988. After the 1992 hearing, the court entered an order
requiring the defendants to take various actions the court held to be necessary under the
consent decree and supplemental orders. For instance, the court ordered the defendants
to balance the ventilation system in the prison, to cease storing non-polar solvents in
ungrounded containers in the prison shop area, and to install a vacuum-based cleaning
system in the carpentry shop and eventually install a central ventilation system in that
shop. In particular, the court noted that the prison was not in compliance with fire
safety and ventilation requirements of the consent decree and the court's supplemental
orders in the prison furniture refinishing shop. The court ordered immediate compliance
with fire safety requirements in that shop and compliance with dust removal
requirements "forthwith, but in any event by December 31, 1992." The court was quite
critical of the defendants' compliance with the fire safety requirements, stating that "fire
safety hazards have continued for years after they were ordered to be remedied and
defendants still have no plans to abate them."
        On April 16, 1996, the defendants filed a motion under Fed. R. Civ. P. 60(b) to
dissolve the consent decree and supplemental orders. The defendants filed a
memorandum in support of their motion, contending that they had substantially complied
with the consent decree and attaching exhibits (such as reports by the plaintiffs' experts)
which they argued established that compliance. The plaintiffs opposed vacatur of the
consent decree, arguing that the district court had to hold a


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hearing to determine defendants' past and present compliance with the decree and the
outlook for defendants' future compliance with the Constitution.

        The district court refused to order a hearing, but ordered the plaintiffs to file
supplemental materials setting forth the areas of defendants' non-compliance with the
consent decree. The plaintiffs filed the declaration of their expert Robert Powitz, Ph.D.,
who stated that he had inspected the prison in October 1996 and that he had concluded
that "there are a number of conditions that pose serious health or safety risks." Powitz
detailed those conditions, but except for one paragraph in a four-page report, he did not
specify whether the conditions he pointed out were covered by the consent decree. The
plaintiffs filed a supplemental brief linking the conditions noted by Powitz to provisions
of the consent decree and supplemental orders.

      The district court then entered an order dissolving the consent decree. The
findings of fact and conclusions of law consisted entirely of the following two
paragraphs:

             The Court having considered the motion herein filed does determine
      that the consent decree has served its purposes and is no longer needed in
      order to serve the public interest.

             Throughout the period of the consent decree, lasting as it has for
      over ten years, the defendants have conscientiously and in good faith
      complied substantially with its terms. Notwithstanding defendants'
      compliance, plaintiff invites the Court to continue its jurisdiction.
      However, in the absence of ongoing substantial violations, the Court
      declines the invitation. Board of Educ. of Oklahoma City Public Schools
      v. Dowell, 498 U.S. 237, 111 S. Ct. 630, 112 l. Ed.2d 715 (1991). The
      Court sees no need for a further evidentiary hearing.




                                           -4-
      The decision to terminate jurisdiction over a consent decree rests in the district
court's discretion. See McDonald v. Carnahan, 109 F.3d 1319, 1321 (8th Cir. 1997).
In exercising that discretion, the district court should consider the following factors:


      (1) any specific terms providing for continued supervision and jurisdiction
      over the consent decree; (2) the consent decree's underlying goals; (3)
      whether there has been compliance with prior court orders; (4) whether
      defendants made a good faith effort to comply; (5) the length of time the
      consent decree has been in effect; and (6) the continuing efficacy of the
      consent decree's enforcement.

Id.; see also Board of Educ. v. Dowell, 498 U.S. 237, 247 (1991) (if district court finds
that defendant operating in compliance with Constitution and unlikely to return to "its
former ways," purposes of injunction have been achieved) .

      The plaintiffs contend that the district court clearly erred in ignoring their
evidence that there were past and present violations of the consent decree. The
defendants contend that the district court did not ignore that evidence, but simply
determined that the alleged past violations were insubstantial and that many of the
conditions currently complained of by Powitz are not covered by the consent decree.1

       The abbreviated order of the district court fails to demonstrate compliance with
McDonald v. Carnahan. Further, we cannot determine the basis for the district court's
decision from this brief order. The record indicates that there have been failures in the

      1
        The defendants argue that the court should not consider Powitz's declaration
because it does not comply with the formal requirements of 28 U.S.C. § 1746 (1994).
Defendants did not raise this question at the district court level, where the defect could
have easily been corrected. Even more crucial, in opposing the plaintiffs' request for
an evidentiary hearing, the defendants relied on similar declarations of Powitz, which
they referred to as "a vast evidentiary foundation" supporting the district court's ruling.
We need hardly say that defendants' objection is waived.

                                           -5-
past to comply with the decree and supplemental orders, and that there are still at least
some violations of the decree. The district judge's order does not give us enough
information to determine whether he ignored the evidence of past and present violations
or whether he considered any violations inconsequential in the context of substantial
compliance. If the conditions Powitz complained of constitute violations of the consent
decree, the district court must exercise its discretion in determining whether those
violations were serious enough to constitute substantial noncompliance and to cast
doubt on defendants' future compliance with the Constitution. See McDonald, 109 F.3d
at 1322-23. Moreover, the ultimate question of whether the defendants are likely to
comply with the Constitution in the absence of court supervision is a question of fact,
see Dowell, 498 U.S. at 247, for which the district court made no finding.

       We may not make these findings of fact or exercise discretion in the district
court's stead. See Duffie v. Deere & Co., 111 F.3d 70, 74 (8th Cir. 1997) (function of
appellate court is to review findings of fact, not to make them); Bannister v. Sorenson,
103 F.3d 632, 636-37 (8th Cir. 1996). At the same time, the district court's findings and
conclusions are simply too cryptic for us to ascertain whether the court applied all the
factors listed in McDonald, and if it did, whether it did so without clear error or abuse
of discretion.

       Federal Rule of Civil Procedure 52(a) generally requires findings of fact and
conclusions of law for rulings on injunctions, but not on motions. However, we need
not decide what Rule 52 requires on this motion to dissolve an injunction, since we may
remand even a ruling on a motion for findings and conclusions if our review would be
hindered without them. DeShane v. Deere & Co., 726 F.2d 443, 446 (8th Cir. 1984);
see also Romer v. Green Point Sav. Bank, 27 F.3d 12, 16-17 (2d Cir. 1994) (remanding
for findings on temporary restraining order, even though Rule 52 does not require
findings for t.r.o.; without further explanation of the district court's ruling, court of
appeals would have difficulty understanding the basis of the ruling and determining
whether district court applied law correctly). We therefore remand to the district court

                                          -6-
to apply the factors we recited in McDonald and to enter findings of fact and
conclusions of law that will enable us to review its decision.

       The plaintiffs further argue that they were entitled to an evidentiary hearing. They
do not cite any cases stating that a hearing is a necessary prerequisite to terminating
supervision over a decree (as opposed to modifying a decree, see Heath v. DeCourcy,
992 F.2d 630, 634 (6th Cir. 1993)). At any rate, the necessity of a hearing depends on
whether there are disputed factual issues. In this case there appear to be factual
disputes crucial to resolution of the motion. It is, therefore, necessary that the court
either conduct such a hearing or articulate the rationale that would make such a hearing
superfluous.

       We remand for further proceedings in accordance with this opinion. We retain
jurisdiction.

      A true copy.

             Attest:

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




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