USCA1 Opinion

June 27, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1816

NICHOLAS A. PALMIGIANO, ET AL.,

Plaintiffs, Appellees,

v.

BRUCE SUNDLUN, ET AL.,

Defendants, Appellees.

__________

KEITH A. WERNER,
Plaintiff, Appellant.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Boudin, Circuit Judges.
______________

____________________

Keith A. Werner on brief pro se.

_______________
Alvin J. Bronstein, Mark J. Lopez,

and National Prison Project

__________________

_____________

_______________________

the American Civil Liberties Union Foundation, on

_____________________________________________

brief for appell

Nicholas A. Palmigiano, et al.

Jeffrey B. Pine,
________________
Assistant
Counsel,

Attorney
Rhode

Attorney

General, Maureen G. Glynn,

__________________

General, and

Island

Department

Spec

Anthony A. Cipriano, Chief

_____________________
of

Corrections,

on

Le

brief

appellees Bruce Sundlun and Rhode Island Department of Corrections.

____________________

____________________

Per Curiam.
___________

involving

In

this

long-standing

class

action

prison conditions in Rhode Island, plaintiff Keith

Werner

order

(a non-named

denying his motion

agreement recently

was

member of

automatic

As

to be

appeals

excluded from

in 1976

plaintiff

as one

himself

right to opt-out of

under Fed.

concedes,

The class

R.

Civ. P.

there

a Rule 23(b)(2)

e.g., Ticor Title Ins. Co. v.

____ _____________________

from an

a settlement

adopted by the district court.

certified back

23(b)(2).

the class)

class.

Brown, 114 S. Ct.

_____

is

no

See,
___

1359, 1361

(1994).

Even if the district court had discretion to permit

member

class

to

opt-out

in

Crawford v. Honig, 37 F.3d 485,

________
_____

refusal to

this,

do so cannot be

where only

equitable

Palmigiano v. Garrahy,

this

context, see,
___

e.g.,
____

487 n.2 (9th Cir. 1994), the

deemed error in a

relief has

443 F. Supp.

been

case, such as

sought.

956, 959 (D.R.I.

See
___

1977)

__________

("No

_______

damages are sought in this action.").

And the concerns

underlying plaintiff's

request prove misplaced in any event.

We decline to consider

the various constitutional challenges

advanced

on appeal to the absence of an opt-out procedure in

Rule 23(b)(2) proceedings,

raise

them below.

argument

that

For

the class

inasmuch as

the same

should

plaintiff failed

reason, we

have

to

disregard his

been decertified

or

restructured at some point in the past.

Assuming arguendo that plaintiff

________

has standing to

raise

the issue, we also reject his perfunctory suggestion that the

district court abused its discretion in adopting the

decree.

Having reviewed the agreement in full, we find its provisions

to be "fair, adequate,

and reasonable."

Auth. of City of Providence,

_____________________________

896 F.2d

Durrett
_______

v. Housing
_______

600, 604

(1st Cir.

1990); accord, e.g., Conservation Law Foundation v. Franklin,

______ ____ ___________________________
________

989 F.2d 54,

other

58-59 (1st Cir.

criteria

enumerated in

1993).

Durrett
_______

We

likewise find

to

have been

the

fully

satisfied.

The judgment is affirmed.

Appellant's motion to
________________________________________________________

supplement his reply brief is denied.

_____________________________________

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