223 Ga. 344 (1967)
155 S.E.2d 376
FORRESTER
v.
CITY OF GAINESVILLE.
24016.
Supreme Court of Georgia.
Submitted April 12, 1967.
Decided May 4, 1967.
Palmour & Palmour, J. Ernest Palmour, Jr., James E. Palmour, III, for appellant.
Kenyon & Gunter, W. B. Gunter, for appellee.
MOBLEY, Justice.
The appeal is from a judgment and decree denying an interlocutory injunction to the appellant, whose petition, as amended, sought to temporarily and permanently enjoin the City of Gainesville from discontinuing the furnishing of water and other services to described property of the appellant as is provided property owners in the city; and from the order finding the appellant in violation of Sections 26-19, 26-41 and 26-44 of the zoning ordinance of the City of Gainesville, that he is not entitled to an occupancy permit so long as violation of the zoning ordinance continues, and temporarily enjoining him from using and occupying the lot and premises until further order of the court.
The city filed an answer and cross action in which it alleged that the appellant was violating the three sections of the zoning ordinance, in that he was constructing an addition to his building which violated the provisions requiring a setback of a certain number of feet from the street, and prohibiting interference in certain detailed particulars with vision at an intersection, and that he has been, and is, occupying the building in violation of the ordinance requiring an occupancy permit, which he does not have and is not entitled to have because of his violation of the sections of the ordinance as to set-back and obstruction of vision. Held:
1. (a) After hearing evidence the court found that the property owner was in violation of the three sections of the ordinance, and the evidence clearly sustains this finding. The evidence shows that he proceeded with construction and enlargement of his building without a building permit, and in violation of the minimum set-back for side yard purposes and of the vision clearance required, all in violation of the zoning ordinance of the city.
(b) The trial judge also found that the evidence did not show such conduct on the part of the city as would estop it from enforcement of the ordinance. The evidence clearly supports that finding of the court. The appellant procured an application from the city for a permit to build, and paid a $2 fee for it. However, the repairs and additions were begun prior to the date of issuance of this receipt, and were continued after he was advised that this was not a permit. He is charged with knowledge of the law, and that a valid *345 permit was required before beginning construction. The evidence was sufficient to sustain the finding of the trial court that the representatives of the city at no time told the appellant that he had a permit authorizing him to begin and continue construction, or that he was not in violation of the sections of the ordinance involved.
(c) The court also found that the appellant would not be exempt from the ordinance because of the exception provided in the ordinance relating to changes in "supporting members of a building . . . as may be required for safety," as the evidence showed that the appellant was materially altering and enlarging his building and was not adding "supporting members. . . required for safety." The evidence supported this finding.
(d) Where the evidence at an interlocutory hearing to determine whether or not the lower court should grant or deny a temporary injunction is conflicting, it can not be said that the court abused its discretion in either granting or denying the injunction. Code § 55-108; Franklin v. Sing-Wilkes, Inc., 215 Ga. 596, 597 (112 SE2d 618), and cases cited.
2. The court further found that the three sections of the ordinance are not subject to the complaint that they are invalid because they are unreasonable, arbitrary, capricious, confiscatory, and that the public interest in the enforcement of the provisions of the ordinance are insignificant compared with the great damage that will result to the property owner. We recognize that any municipal ordinance that is unreasonable will be held void (Howden v. Mayor &c. of Savannah, 172 Ga. 833 (159 SE 401); Schofield v. Bishop, 192 Ga. 732, 738 (16 SE2d 714); Snow v. Johnston, 197 Ga. 146, 160 (28 SE2d 270); Humthlett v. Reeves, 212 Ga. 8, 15 (90 SE2d 14)); also that an ordinance may be invalid where its purpose is not to protect the public health, safety, morals, or general welfare, and that an ordinance may in its general aspects be valid, and yet, as to a particular state of facts involving a particular parcel of real estate, be so clearly arbitrary and unreasonable as to result in confiscation, thereby justifying the interposition of a court of equity to restrain its enforcement. Humthlett v. Reeves, 212 Ga. 8, 15, supra. The facts in this case supported the finding of the trial court that the sections of the ordinance are not unreasonable, arbitrary, or invalid for any reason assigned.
*346 3. The court did not err in finding that the appellant was in violation of the three sections of the zoning ordinance in question, that he was not entitled to a certificate of occupancy so long as violation of the ordinance continues, and in temporarily enjoining him from using and occupying the lot and premises until further order of the court.
Judgment affirmed. All the Justices concur.


801 F.2d 1233
93 A.L.R.Fed. 407, 55 USLW 2216, 13Media L. Rep. 1391
JOURNAL PUBLISHING CO., Petitioner,v.The Honorable E.L. MECHEM, United States District Court forthe District of New Mexico, Respondent.Van Bering Robinson, Real Party in InterestJohn Maruffi, et al, Real Parties in InterestNew Mexico Press Association, Amicus Curiae.
No. 86-1328.
United States Court of Appeals,Tenth Circuit.
Sept. 24, 1986.

Wayne C. Wolf, Kathleen Davison Lebeck and Anthony J.D. Contri of Civerolo, Hansen & Wolf, P.A., Albuquerque, N.M., for real parties in interest (defendants-appellants).
Hal Simmons, New Mexico Press Ass'n, Albuquerque, N.M., for amicus curiae.
Eric D. Lanphere and Michael A. Gross of Johnson & Lanphere, P.C., Albuquerque, N.M., for petitioner.
James R. Toulouse of Toulouse, Toulouse & Garcia, P.A., Albuquerque, N.M., for real party in interest (plaintiff).
Before McKAY, LOGAN and ANDERSON, Circuit Judges.
McKAY, Circuit Judge.

1
Journal Publishing Company has petitioned this court for a writ of mandamus directing Judge E.L. Mechem to dissolve his post-trial order prohibiting press interviews with certain jurors.  Those jurors served in a controversial trial in which Van Bering Robinson charged that his civil rights were violated by the City of Albuquerque, its chief of police, and several police officers.  The jury found for Mr. Robinson and against all defendants except the city of Albuquerque.

2
At the close of the case, Judge Mechem admonished the jurors not to discuss their verdict.  He stated:

3
You should not discuss your verdict after you leave here with anyone.  If anyone tries to talk to you about it, or wants to talk to you about it, let me know.  If they wish [to] take the matter up with me, why, they may do so, but otherwise, don't discuss it with anyone.

4
Petitioner's exhibit 1, at 3 (partial transcript of proceedings).

5
Because of the newsworthy nature of the trial, Journal Publishing Company wanted to interview the jurors in the case.  Journal Publishing wrote Judge Mechem informally and requested that he rescind or modify his order prohibiting communication with former jurors.  In a written response, Judge Mechem refused the request, explaining that he admonishes the jury to remain silent only in civil actions.  After receiving this response, Journal Publishing filed a motion for leave to interview the jurors.  Judge Mechem has not ruled on this motion.

6
Consequently, Journal Publishing petitioned this court for a writ of mandamus against Judge Mechem.  In support of this motion, Journal Publishing argues that his order denies its first amendment right to gather news, denies the public the opportunity to know the basis of the jury's verdict, and violates the jurors' first amendment rights.

7
Before considering the merits of the petition, we hold that Journal Publishing has standing to bring this action.  Journal Publishing alleged an injury in fact because the court's order impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment.   See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970);  Concerned Citizens for Separation of Church and State v. Denver, 628 F.2d 1289, 1295 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981);  United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir.1978).

8
This court has jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a) (1982).  Since it is a drastic remedy, mandamus is only to be invoked in extraordinary situations.   Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976);  Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir.1978).  Thus, we will not issue a writ unless the petitioner has no other adequate means to attain the relief he seeks, and unless his right to the issuance is "clear and indisputable."   Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.  Moreover, we will not issue mandamus against a district court unless it has clearly abused its discretion.   Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146-47 (10th Cir.1967).  However, a writ is appropriate when the district court's order is an oft-repeated error or when the order raises new and important problems and issues of law of the first impression.   Radio and Television News Association v. United States District Court, 781 F.2d 1443, 1444-45 (9th Cir.1986) (citing Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977)).

9
We first conclude that it is proper for Journal Publishing to seek mandamus.  Because Journal Publishing was not a party and could not challenge the post-trial order on direct appeal, it has no other adequate means to obtain relief.

10
We next consider whether the trial court clearly abused its discretion when it issued the order effectively prohibiting Journal Publishing from interviewing jurors after the trial was over.  We note that trial courts have a wide discretion in being able to protect the judicial process from influences that pose a danger to effective justice.  Even though the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial, see Sherman, 581 F.2d at 1361, the courts have properly exercised their right to protect jurors from unwanted post-trial harassment.   See United States v. Harrelson, 713 F.2d 1114, 1117-18 (5th Cir.1983), cert. denied, 465 U.S. 1041, 104 S.Ct. 1318, 79 L.Ed.2d 714 (1984).  For example, courts have routinely shielded jurors from post-trial "fishing expeditions" carried out by losing attorneys interested in casting doubt on the jury's verdict.   United States v. Hall, 424 F.Supp. 508, 538-39 (W.D.Okla.1975), aff'd, 536 F.2d 313 (10th Cir.1976);  Wilkerson v. Amco Corp., 703 F.2d 184, 185 (5th Cir.1983).  We have upheld the denial of a motion by a losing attorney to interview jurors because that attorney's assertion of jury misconduct was unsubstantiated.   United States v. Wilburn, 549 F.2d 734, 739 (10th Cir.1977).

11
As we consider the precedent from juror-interview cases, we distinguish cases discussing contact with jurors by news media from cases dealing with contact by parties or the attorneys that took part in the trial.   See In re Express News Corp., 695 F.2d 807, 810 n. 3 (5th Cir.1982).  The media has less incentive to upset a verdict than does a losing party or attorney.  Thus, while a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors.

12
News gathering is an activity protected by the First Amendment.   Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656-57, 33 L.Ed.2d 626 (1972).  Even though the first amendment does not invalidate every burdening of the press, id. at 682, 92 S.Ct. at 2657, or provide an unrestrained right to gather information, Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), any inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint.   Sherman, 581 F.2d at 1361.  If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible.   See CBS, Inc. v. Young, 522 F.2d 234, 240 (6th Cir.1975).  A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest.   Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248 (1982) (dealing with criminal trials);  Haeberle v. Texas International Airlines, 739 F.2d 1019, 1021 (5th Cir.1984);  Express-News, 695 F.2d at 810;  Sherman, 581 F.2d at 1361.  Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights.   Globe Newspaper Co., 457 U.S. at 607, 102 S.Ct. at 2620; Levine v. United States District Court. 764 F.2d 590, 595 (9th Cir. 1985);  Express-News, 695 F.2d at 810;  Sherman, 581 F.2d at 1361.  These requirements apply for criminal trials as well as civil trials.  Of course, the weight to be assigned the factors may vary just as the interests of the opposing sides may vary in the context of particular cases.

13
Judge Mechem's order restricting press contact with former jurors was impermissibly overbroad.  It contained no time or scope limitations and encompassed every possible juror interview situation.  It would have been constitutionally permissible for the court routinely to instruct jurors that they may refuse interviews and seek the aid of the court if interviewers persist after they express a reluctance to speak.   Harrelson, 713 F.2d at 1117-18.  It could have told the jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.   Id. at 1118.  But the court could not issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason.

14
We have made no attempt to indicate all restraints which the court may or may not impose.  We indicate only that the court's power to impose prior restraints on first amendment rights is limited and that with few exceptions it must be exercised in response to specific compelling reasons.  Because Judge Mechem's order was impermissibly overbroad, Journal Publishing has a clear and indisputable right to an order of mandamus reversing the decree.  Mandamus is particularly appropriate here because of the potential for the trial court to repeat its overbroad restriction of press contact with former jurors.  Therefore, we order Judge Mechem to dissolve his order prohibiting all press contact with the jurors who rendered a verdict in Robinson v. Maruffi, United States District Court for the District of New Mexico, Case No. 84-1216-M Civil.  Our order is without prejudice to the entry of a substitute order which conforms to the standards and limitations set out herein.


                    plea. Crawford v. State, 117 Nev. 718, 721, 30 P.3d 1123, 1125 (2001).
                    Smith was informed of the potential sentence he faced by pleading guilty.
                    Further, the district court permitted Smith to enter a conditional plea that
                    allowed him to withdraw his plea if he did not receive the stipulated
                    punishment. The district court then sentenced him to the stipulated
                    punishment of 12-30 months imprisonment, concurrent to his sentence in
                    California. As the district court did everything within its authority to
                    ensure Smith received the sentence to which he agreed, we conclude that
                    the district court did not abuse its discretion in denying the motion to
                    withdraw the guilty plea. See Molina v. State, 120 Nev. 185, 191, 87 P.3d
                    533, 538 (2004).
                                Having reviewed Smith's contentions and concluded that they
                    lack merit, we
                                ORDER the judgment of conviction AFFIRMED.

                                                       Hardesty

                                                         (jtjtrcA                      J.
                                                       Cherry

                    cc:   Hon. Elissa F. Cadish, District Judge
                          Sandra L. Stewart
                          Attorney General/Carson City
                          Clark County District Attorney
                          Eighth District Court Clerk
SUPREME COURT
       OF
     NEVADA
                                                         2
(0) 1947A otlegs.


674 F.3d 97 (2012)
SCARBOROUGH CITIZENS PROTECTING RESOURCES; David T. Paul, Paul Austin, Susan DeWitt Wilder, Plaintiffs, Appellants,
v.
U.S. FISH AND WILDLIFE SERVICE; Marvin Moriarty, Northeast Regional Director, U.S. Fish and Wildlife Service; Paul LePage, Governor, State of Maine; Chandler Woodcock, Commissioner, Maine Department of Inland Fisheries and Wildlife; and Patricia Aho, Commissioner, Maine Department of Environmental Protection,[*] Defendants, Appellees.
No. 11-1597.
United States Court of Appeals, First Circuit.
Heard January 9, 2012.
Decided March 22, 2012.
*98 Stephen F. Hinchman with whom Law Offices of Stephen F. Hinchman, LLC was on brief for appellants.
Evan J. Roth, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief for the federal defendants, appellees.
Paul Stern, Deputy Attorney General, with whom Gerald D. Reid and Mark Randlett, Assistant Attorneys General, Office of the Attorney General, were on brief for the state defendants, appellees.
Before BOUDIN, SELYA and STAHL, Circuit Judges.
BOUDIN, Circuit Judge.
This litigation concerns a segment of the Eastern Trail in Scarborough, Maine. The Eastern Trail is a public recreational trail which is part of a network of trails running along the Eastern Seaboard. http://www. easterntrail.org. The portion of the Trail at issue in this case is over three miles long, runs through a 32-acre tract of land owned by the state of Maine, and is used in part for recreation and to access the state-managed Scarborough Marsh Wildlife Management Area.
An association and several individuals who regularly use the Trail for recreating and hunting, and who support wildlife conservation ("Scarborough Citizens") brought suit against the United States Fish and Wildlife Service ("USFWS") and its Northeast Regional Director, as well as the Governor of Maine and the Commissioners of the Maine Department of Inland Fisheries and Wildlife ("IFW") and Department of Environmental Protection ("DEP"). Scarborough Citizens alleged that easements conveyed by the state on the parcel of land violate the law.
As alleged in the complaint, in 1961 Maine purchased the tract of land (formerly owned by a railroad and apparently consisting predominately of the Trail itself) exclusively using federal funds granted to the state under the Pittman-Robertson Wildlife Restoration Act, also known as the Federal Aid in Wildlife Restoration Act ("Wildlife Restoration Act"), 16 U.S.C. §§ 669-669k (2006). Funds are granted under the Wildlife Restoration Act only for approved purposes or projects, id. § 669e; the approved purpose for this land was "waterfowl habitat, waterfowl management, and access to waterfowl hunting."
Beginning in 1962 and continuing through 2005, the state and IFW conveyed various easements on portions of the Trail to the Town of Scarborough, primarily for sanitary pipelines and a town way, as well as to private parties for access to adjoining property. In consequence, the very eastern-most portion of the Trail has become a town road. The bulk of the rest of the Trail is graveled and, pursuant to a 2003 agreement between the Town of Scarborough *99 and IFW, limited to pedestrian and non-motorized vehicle access, save for limited vehicle access for hunting and trapping in October and December.
However, an easement granted by IFW in 2005 and a subsequent permit granted by DEP allowed construction of a road over 766 feet of previously-restricted trail to give vehicular access to a new planned subdivision. In 2008, IFW realized that the property was likely purchased with Wildlife Restoration Act funds and reported that discovery to USFWS. Scarborough Citizens learned of the funding source in 2009 only after filing a request under Maine's Freedom of Access Act with IFW. In its view, the grant of easements and in particular the construction of a paved, general-use town roadon any portion of the 1961 purchase violated federal restrictions.[1]
In 2010, Scarborough Citizens filed a suit for injunctive and declaratory relief, alleging violations of the Wildlife Restoration Act, the National Environmental Policy Act, ("NEPA"), 42 U.S.C. § 4321 et seq. (2006), and state law. Following the magistrate judge's recommendation, Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., No. 2:10-cv-00315-DBH, 2011 WL 722411 (D.Me. Feb. 22, 2011), the district court dismissed the federal claims on the merits and declined to exercise supplemental jurisdiction over the state law claims, No. 10-315-P-H, 2011 WL 1131539 (D.Me. Mar. 28, 2011).
In its appeal, Scarborough Citizens argues that the state agency has repeatedly violated the Wildlife Restoration Act and federal regulations in varying respects by conveying nearly ten easements on various portions of the Eastern Trail between 1968 and 2005. The gist of the claim is that these conveyances resulted in uses of the land, initially purchased with funds from the Wildlife Restoration Act, contrary to the purposes for which it was initially acquired.
The Wildlife Restoration Act, enacted in 1937, authorizes the Secretary of the Interior to disburse money derived from excise taxes on hunting equipment to states for "wildlife-restoration projects." 16 U.S.C. § 669. Funded projects must be approved by the Secretary and conform to standards fixed by him or her, id., and the apportioned funds must be expended only for the project, id. §§ 669e(a), 669k(d)(1). The state is also obliged to maintain completed wildlife-restoration projects. Id. § 669g.
The statute lacks a private right of action, e.g., Ill. State Rifle Ass'n v. Illinois, 717 F.Supp. 634, 638 (N.D.Ill.1989), but most courts, including the district court here, have allowed plaintiffs to challenge federal agency actionincluding any such action allegedly violating the Wildlife Restoration Actunder the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (2006). See, e.g., Sportsmen's Wildlife Def. Fund v. Romer, 29 F.Supp.2d 1199, 1211 (D.Colo.1998). However, under Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), in an APA challenge to federal agency inaction it must be shown that USFWS "failed to take a discrete agency action that it is required to take."
We start by asking whether the Wildlife Restoration Act provision cited by Scarborough Citizens imposes a discrete, non-discretionary duty to act on the federal *100 officials. USFWS argues that the claims have been waived; but the district court decided them on the merits and we will treat them as preserved even though only sketchily raised in the complaint. By contrast, the claims initially brought against state officials under the Wildlife Restoration Act were withdrawn voluntarily in the district court and cannot be revived on appeal.
The key statutory provision relied upon reads:
(a) Setting aside funds
Any State desiring to avail itself of the benefits of this chapter shall, by its State fish and game department, submit programs or projects for wildlife restoration...
(2) The Secretary of the Interior shall approve only such comprehensive plans or projects as may be substantial in character and design and the expenditure of funds hereby authorized shall be applied only to such approved comprehensive wildlife plans or projects and if otherwise applied they shall be replaced by the State before it may participate in any further apportionment under this chapter. No payment of any money apportioned under this chapter shall be made on any comprehensive wildlife plan or project until an agreement to participate therein shall have been submitted to and approved by the Secretary of the Interior.
16 U.S.C. § 669e(a).
Scarborough Citizens focuses on the statutory requirement that if authorized funds are "otherwise applied," "they shall be replaced by the State before it may participate in any further apportionment"; a regulation, 50 C.F.R. § 80.14(a) (2010), says the same thing. But here the funds were "applied"and properly soto acquire the Trail. Neither the statute nor the echoing regulation just cited addresses the issue of the subsequent misuse or disposal of property once acquired; but the regulations do so in the multi-part section 80.14(b) and it is to those provisions that we now turn.
Regulations can, by themselves, not only impose liabilities on non-federal parties but also impose legal duties on federal officers such that their inaction is subject to judicial review under the APA. However, "[t]he limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law)." Norton, 542 U.S. at 65, 124 S.Ct. 2373; accord Veterans for Common Sense v. Shinseki, 644 F.3d 845, 869 (9th Cir.2011); Benzman v. Whitman, 523 F.3d 119, 130 (2d Cir.2008).
The pertinent regulations provide:
§ 80.14 Application of Wildlife and Sport Fish Restoration Program funds.
(a) States must apply Wildlife and Sport Fish Restoration Program funds only to activities or purposes approved by the Regional Director. If otherwise applied, such funds must be replaced or the State becomes ineligible to participate.
(b) Real property acquired or constructed with Wildlife and Sport Fish Restoration Program funds must continue to serve the purpose for which acquired or constructed.
(1) When such property passes from management control of the State fish and wildlife agency, the control must be fully restored to the State fish and wildlife agency or the real property must be replaced using non-Federal funds not derived from license revenues. Replacement property must be of equal value at current market prices and with equal benefits as the original property. The State may have up to 3 years from the *101 date of notification by the Regional Director to acquire replacement property before becoming ineligible.
(2) When such property is used for purposes that interfere with the accomplishment of approved purposes, the violating activities must cease and any adverse effects resulting must be remedied.
(3) When such property is no longer needed or useful for its original purpose, and with prior approval of the Regional Director, the property must be used or disposed of as provided by 43 CFR 12.71 or 43 CFR 12.932.
50 C.F.R. § 80.14 (2010).
Referring to the grant of easements, Scarborough Citizens' complaint alleged violations of each of the three provisions in section 80.14(b) reproduced aboveloss of management control (section 80.14(b)(1)), misuse (section 80.14(b)(2)), and disposal (section 80.14(b)(3)). While actions of state officers are not subject to APA review, Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1298 (D.C.Cir.2007), Scarborough Citizens argues the regulations confer two non-discretionary duties on USFWS itself. Specifically, it says USFWS must notify Maine that the state must remedy the alleged violation, and USFWS must also bar Maine from further apportionments of Wildlife Restoration Act funds.
Section 80.14(b)(1) refers to a potential "notification by the [USFWS] Regional Director," but it does not say that USFWS is required to make such a notification, so no APA mandatory duty exists under Norton. Cf. Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th Cir.2011). And it indeed refers to state ineligibility for apportionments under the program if management control is lost over funded property; but while it "sets out actions a state must take in order to cure a misuse of federal aid monies," it is "silent ... with respect to the actions the USFWS may or must take in response to the misuse." Sportsmen's Wildlife Def. Fund, 29 F.Supp.2d at 1212.[2]
This reading of the regulations falls within the normal contours of judicial review of agency actions. Cutting off funding in response to a violation smacks of a decision whether or not to seek enforcement, which carries a presumption of non-reviewability. Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). As the Supreme Court has "repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities." Massachusetts v. EPA, 549 U.S. 497, 527, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).
After the district court's decision in this case, the Wildlife Restoration Act regulations were amended and re-organized in 2011. The new regulations say that when the state "allows a use of real property that interferes with its authorized purpose under a grant," USFWS "may declare the agency ineligible to receive new grants." 50 C.F.R. § 80.135(f) (2011) (emphasis added). This amended language accords with our conclusion that a funds cut-off, provoked by a breach of the regulatory provisions at issue, is a discretionary enforcement decision.
*102 Scarborough Citizens also challenges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (2006), the state's conveyance of the 2005 easement to a private developer to construct a street on 766 feet of the Eastern Trail to allow pedestrian and vehicle access to a subdivision. They allege this conveyance "encumbered" the Eastern Trail and required NEPA compliance by both the federal and state officials.
NEPA establishes a now familiar assessment process that officials must follow before undertaking a "major Federal action[] significantly affecting the quality of the human environment." Id. § 4332(C). Like the Wildlife Restoration Act, NEPA does not by its terms create a private right of action; but, as with the former statute, federal agency action covered by NEPA is reviewable under the APA. E.g., Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C.Cir.2011).
Scarborough Citizens framed its claim under NEPA in the district court as follows:
In conveying the 2005 easement to [the private developer], which required federal approval, State and Federal Defendants violated [NEPA] by encumbering the Eastern Trail without first taking a hard look at whether the conveyance will significantly affect the quality of the human environment.
The difficulty, of course, is that the federal officials did not convey the easement, and while a grant of federal approval might perhaps have required an environmental assessment under NEPA under certain circumstances, no such approval was sought by the state officials or granted by the federal ones.
Plaintiffs offer two main theories for applying NEPA to a case in which the challenged actionnamely, the conveyance of an easement to use or cross a portion of the state-owned Trailwas taken by the state. The first theory is that "inaction" by federal officials can in some cases violate NEPA, that the state's conveyor should have requested federal approval and therefore that NEPA was violated by federal officials. The "therefore" constitutes the familiar lawyer's non-sequitur.
Although deliberate inaction might in some cases be subject to NEPA, 40 C.F.R. § 1508.18 (2011); Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 301 (1st Cir.1999), it is unclear that the grant of the easement required federal "approval" at all. The only relevant regulatory provision mentioning federal approval is that governing disposal, but the Trail segment in question was or will be pavednot sold or otherwise relinquishedand the disposal regulation is not applicable here. See note 2, above. In any event, as federal officials were apparently not advised of the grant, failing to object can hardly be treated as a surrogate for approval given without complying with NEPA.
Alternatively, if the grant of the easement independently violated section 80.14 of the regulations and permitted remedial action by USFWS, the failure to seek remedies would be reviewable under NEPA only where there is an enforceable duty to act, 40 C.F.R. § 1508.18, and as already explained, no duty exists under the Wildlife Restoration Act regulations. See also Ramsey v. Kantor, 96 F.3d 434, 445 (9th Cir.1996); State of N.J., Dep't of Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403, 418 (3d Cir.1994).
NEPA cannot be used to make indirectly reviewable a discretionary decision not to take an enforcement action where the decision itself is not reviewable under the APA or the substantive statute. "No agency could meet its NEPA obligations if *103 it had to prepare an environmental impact statement every time the agency had power to act but did not do so." Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1246 (D.C.Cir.1980); accord Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1123 (10th Cir.2009).
Plaintiffs' second route to identify a major federal action is their claim that a "partnership" existed between the federal and state governments which transformed the state agency's conveyance of an easement in real property owned by the state into a federal action. Such partnerships may exist in certain circumstances where the federal government funds a joint or state initiative or where federal and state components of a project are interdependent or where federal approval is given without NEPA compliance. 40 C.F.R. § 1508.18 (2011); Mayaguezanos, 198 F.3d at 301-02. The circuit decisions are not all in accord,[3] but no indicia of the requisite partnership are present here.
In this instance, the federal government funded the state's purchase of the property, but it neither funded nor approved the later grant of any of the easements. USFWS may have the power to withhold future funding from the state if the easement violated the regulations and the state does not remedy the violation, 50 C.F.R. § 80.14 (2010), but (to repeat) this power is discretionary. As we conclude that there is no reviewable federal action, neither the federal nor the state officials can be held liable for violating NEPA, as a major federal action is a prerequisite for either.
Finally, plaintiffs allege in some detail that the grant of the 2005 easement violated provisions of state law and say that the district court had supplemental jurisdiction to resolve those claims and invalidate the easement. As we agree with the district court's dismissal of the federal claims in this suit, there is no abuse of discretion in its decision to decline to exercise supplemental jurisdiction over the remaining state law claims. See, e.g., Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 190-91 (1st Cir.2011).
Affirmed.
NOTES
[*]  Pursuant to Fed. R.App. P. 43(c)(2), Paul LePage, Chandler Woodcock, and Patricia Aho have been substituted for John E. Baldacci, Roland Martin and David P. Littell, as Governor, State of Maine; Commissioner, Maine Department of Inland Fisheries and Wildlife; and Commissioner, Maine Department of Environmental Protection.
[1]  Recognizing a potential legal problem, federal and state officials entered into negotiations apparently aimed at a repayment to the federal government; we are told that "IFW continues to work to resolve the outstanding issues," and the federal officials' brief cites a draft memorandum of understanding.
[2]  We also reject Scarborough Citizens' reliance on section 80.14(b)(3), the disposal provision. None of the easements here was a "disposal" of the property as the regulations use the terma label for what happens to property only after the formalized process described in the regulations, to which both the state and federal agencies explicitly agree, occurs.
[3]  Compare Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir.1992), and Silva v. Romney, 473 F.2d 287, 289-90 (1st Cir. 1973), with S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 331 (4th Cir.2008), and Karst, 475 F.3d at 1297-98.


2CnFE8 27 r-il |:0o
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                           - s.
     /
Mukm uk v.Com m jssijnerofDept.ofCo2aect±>nalServ±:es, 529 F 2d 272 0-976)

End ofDooBii Qit                                          ^ 2017 Than son Ralters.N o ahin to orjgjialU S .G ovemra eitW odes.

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siJOi
Mukm iTk v.Com m issiDnerofDept.of CorrectiDnalServires, 529 F 2d 272 0-976)

           There are types ofd^riyat±>n of r^ts whidi may be reoognized as unoonsdtutional for puipo^ of federal
           dsdl rghts statute onwhen they are jadinhTly sd dedated; however, there ate instances of giD®abu® to
           hum an d^ity sd diockingto ODnsdenceasto requiieno pdicdalpiDnounoem aitfortheirgeneralreoognitfon.
            42U SC A .§1983;U SC A ConSLAmQid.8.

            C affis that cdte this headnote

    D-l]    C ivilR ^hts     G ovemm entA gaiciesand O ffriers
            Pubic officermay inflictharm whiii is a violation ofa oonstilutionalprohfoifion withoutoonsdousplan or
            iltcitpuipose; however,teStof liability oughtnotignoreentir^ the mores of the tin es oreventhepartioilar
            moresofprison guards, tmtxained in the lawyers'view of life.

            1C a ^ that dte this headnote

AttDm^andLaw Firms

*273 DavilJ. File, New York City (Elizabeth M . Fidier,DaviiRosaiberg, and Paul, Wei9S,Riflciid,W hazton &
G a3adsDn,N ew Y oik C ity, ofcounsd), forappdlant.

David L.Birch,D^utyAffit:.Atty.Gai.of theStateofNe«r Yoik (LouisJ,Leflcowitz,Atty.G0i.,and SamuelA .
H irdiow itz, F irstA ast.A tty.G en., ofooun^, forappdlees.

BeforeFEINBERG ,GURFE3N andVAN GRAAFEILAND ,CiroiitJudges.

0 pimon

G U R FE IN , C ircuitJudge:

TheplaintiflE,M asiaM ukm uk,isaB lade MusQin leaderwho ^ait15 years iiNew Yoikstateprisons.^ From hisown
albgatfonsin hisci^ilrghtsaomplaint,hewasanactivistii prison.Onecannothet)butieadb^eai the lines *274
thatdiehasbeoi a thorn ii thesideofprison officdalsduringmostofhisprison life.Such activisn tmdstc elicdtareactdve
usa ofpower. To persons in authority in the prison seme thatpow eris readifyavailable.The arbus questfonraissd is
whethertheboundaresofperm febtesanctionsby the correctionsofBDerswere cro^d and theoonst±ut±>nalrightsof
MukmukundertheEi^th,FoiuiBaithandFirstAm endmoitsviohted.
^          HewasTe1f3a3?d onpaipb ii January, 1975.

This is a s 1983 action which has long endured upon the docketof the D istidctC ourt for the Southern D istrictofN sv
Yoik with but iTtt-v* movem ait:. The actfon was begun xi A ugust: 1970. The compfeintwas twice am ended. Ih 0 ctober
1973,amotion forsummaiy jadgmaitwasmadeby thedefeidants,who aretheComm isabnerof theD ^artmaitof
Correctbnal Services; J. Edw ii LaVaHee, Superdntendait of the ClintDn Correctdonal Facility; Viicent R . M anaisi,
SuperhtEndentoftheAtticaCorrectionaIFacility;andJbhnL .ZeIker,SuperintaidaatoftheG reaiH avaiCorrectbnal
Fadlty.^
2     Eartierdefeiaem otfonsto disn issforlade ofprosacutfon were detiied.Varbusotherprooeduialm ovesaaEdesa±ted ii the
           opxiionbebw .M ukmukv.CcmmiasbnerofD^tofCorEectdonalServicEs,369FSupp.245 (SD N .Y J.974).A prayerfor
           iEStorat±>n of good tin e oedils was dian tsbpH as h the nature of a pettbn for habeas ooipus wilhout exhaustbn of state
           ranedies.SeePredaerv.Rodriguez,411U S.475,93 SjCt.l827,36L Ed2d439 a.973).W eagiee.

    WESTIAVV
Epps v.CortEse, 326 F Supp .127 0-971)

*130 g.NeifliertheR^teviiW MiBondActnortheni]ese}^iEa^setfiDrththattiieSherifiE,puraaanttDtliewritwifti
bond,m ay fouibfybiBak and enterorthathem ay notbreak oraitEr.

10. ]n none ofthe 'rnH-Kniii iai m.eiaa did. the SheadfE        biBak and enterinto the piHti       ofp]ajitiffe.

11. Neither the SheadfE nor hasagents have any dascti^don an deteam iiing the under^dng tiansactaon gasdng rte to the
r^fevii wMl bondactian.TheyaaenotasquaiBd orpeam Msdto hear ordetEon iie any aasues ofthe adghtsof eMierof
theparties to the paraperty ii questian.

12.The ShedfE, orhasagents,after ssiziig and takingposssssbn of the paraperty nam ed in the wril:, musthoid it ii his
oistDdy fiara peadod of ssventyHwo houis,duringwhich tan e thedefendantnam edon thewadtm ay legaii poaaessbn of
theproperty by filing a counter-bond in the sam e am ountas the oraginalbond.

13. The fiaam of the writ requiced by Paara^lvania Rules of CiviL Procedure, Rule 1354, contaiis no notdce to the
defeidantthathem ay reoovertheproperty by posting a counterbond, nordoes ites^reffi^prohiaitthisnoldae.

14 .Ifthedefendanton thewritfeilstD fDethe counterbond withii thesevaitybtf o hourperbd,theSherifE,orhisagai.ts,
isrequired to delivertheproperty ffiized to theplaintdtTon thewiit^sjbipcttD Rule1079 dealing withan poundiig.
15.TheplaiitdfE, Epps,and thedefaidant:,G ovemm entEm playeesExchangeC oaporatbn, aasthepartiestao a contract
aitdtfed RetaiLBistallneatContracfe- SecuiityAga3eemait'whichprovades,interalia,thefi3]]owing;

You r.ya<3=rijng diaUretaii HfVa to said merrhandase;I wiUbe as^nsble fiarits loss ordam age; I wilLnotran ove or
encum bersam e; if I defeuMin any paymentorbreach any oovaaantheceii, the aitdre babnce diallbe in mediatefy' due
and payable and you orassigns may retakethe merchandi^, ^D.the sam e and hold me fiDr any deficaaicy, or afEiim
the saife and hold me Ihbte fiarthe unpaM babnce * * * n otioe by buyer: 1. Do not sign this contractbefiare you read
itor if itcontains any bbnk ^aces.'

16.Thepropertynam edii thewrittD be r^leviedfiram plaiitifEEppsconsistBdofoneG E .stereo, twowedding rhgs,
a diamond watch and band and a T .V .roofantama.

17. PlaiitifEEpps, atthe tin eof the institutian ofthe r^levii actian, earned Mexcessof$10,000 peryear.

18.0 n Fdaruary 1,1969, the pfeintdflE, PaulParham , and the defeidant. Sears, Ro^uck and Co., altered iitD a sin ilar
nataii fTPrf^^rr^n^Tar^^a•lcr> piDviding that the seBer raaii t-it-lp ii the goods sold and thatupon defeult the ^Ilerm ay at
hisoption i^xDi^s3thegoods.Thep!kintifiE,EIlai Paiham ,wasnotaparty to theoontract.

19.A HaimonyHousetableandfiaurstiaolsandadiyanbedweredelis/erBdtDthep]aintifiE,PaulPaiham ,and posssssbn
wasraainedbyhin iihishomeuntdLthegoodswereri^leviedbytheSheriffofPhilade^hiaCounty.

9n TVi<aagyppm <antT;«=ntTarpii "htrihypTginriffaPippflarid Parham compfywMlthepiDvisbnsoftheUnifiam Commercial
Code ofPam^l/ania and the G oodsand Services Ihstalbi aitSalesA ct.

21.Thepaym entreoord of the plaiitifE, PaulParham , diows that there were defeults on his part as to theagreemait
ofFdaruaiy 1,1969.

22. There were nine (9) te^hone calls made by the defendant, Sears, or its r^resaitatdves, to M r.Patham andfii/e 6)
wrMaioom m nri vTai-ririgwCTiaaTsn snt.ThedatBSonwhich such wrMai com m uniatdonsw ere saitaas Tefpectdi/i^^ :M ay
16,1970,May 22,1970, ilune 22,1970, Jafy 22,1970, and August19,1970.Therewere also two C2) personalvisits to the
home of the plaintiff. AILofthe® tel^hone calls, leOersand visits ooncemed the problem ofthe acoountand its status.

 *131 23.0 n S^tan ber11,1970, a WritofR^fevii WMlBond was i®uedby the ProthonotaryofPhiladelphia County
on bdticilfof the defendant, Sears, RodDuck and Co., upon the filing by itw Mi the Prothonotary ofa bond as required

 WESTLAW           2017 rho-u         k                    id          5 .G ove^:n; dulw c      .
"C^welLvrM iCfer, 790 F2d 589 a986)

    t)) CompHeteM aniialofCrin iialFoim s. Bailey and Rothblatt.

    fc) Crin inalLaw R ^x^iter, airraitsabs3:pt±)n.

    ii) M odem C rin iicilPiDaedure, H alLand K am dsar.

    fe) Const±ut±)nalR ^tsofPriaanets, Pain er.

    (0 F edetalH abeas C ojpus, SokoL

        You and theLaw,R eaderSD dgeSL

    5i) LegalRefflandi iiaNutdieH^Cohai.

    Ci)LegalResEaich,W ritiigandAna^|/ais,W estPub]MiiigCompany.

    (]) CortBct±>nsand PrisDners'R jghts, K rantz.

    Oc)M anual&rPrisDn Law Li)iaries,W emer.

    (1)M odemFedeialPiact±eD dgest,Vo]Limesl6-18A ,26,26A ,39,and42.

    tn ) M anualforCourtsM artKl,U S .G ovemm aitPrhtmg O fiSoe.

    WdusdoeandtheM iiilaiy, Pubic Law Education liistiliite (Dutofpiait- ke^ curreitcopdes).

    b) R j^tsofthe 3m prisoned, Siiger.

    *611 4)) PracticeM anualon Miliaiy DisdiaigeU pgiadiig. Am edcan CdvilL ±>ertdesU nion.

    <5) Prisoners'AssistanoeD irBctDiy,TheN at±)nalPrison Pio^ct.

    W C rfai iialPiDaeduiE in aN utdieD, Tfnaeland LaFave.

AILCitatijns

790 F 2d 589

 KiKi cfr •:5;aufi eit;.                                             ' 2017 Thc-.'P. frm R eare-:rs.l\ o ciaii to crgrialU S .0 oveinrn entW otIlp.

  WESTLAW                  201 / Thoir: soxi K c^iueis.No • itii; id cihiialU 5 .C ovemm oiicW oikt
CaliweILv.Milter,790 F2d 589 tt986)

them ail ]^w Ibiary.CaHw^doesnotaigue thathdsaocesBtD the basic Ihmry is iiadequate ii tEon s ofthe mom berof
visits he isalbwed ortheam ountof tin ehem ay isn ain. in.the Ibraiy atany one tin e.

 25]   26] CeiiiwelLclainsthatthebasiciaw ]ibiaiiescannot:seaveasasL±)StitutEfc)rdir!ectaoaesBtD them ain bw Ubiaiy.
WedonotiagiBe.Thebasfcbw ]ibiaries,ifth^cDntaiithematEim]s]istBdinthe^poidixitDtheafiEidavitfDadiisupport
ofM xlbrfemotiDn for summary judgment (c^Boduoed in Appaidixto thisopini)n),a2EadequatEtopiDviaeCa]dweIL
with the dtatfonshe needs to requeStica^kw matBciaJs and to com pJete his reseairh. Rpsi-rirtbns on ditBCtaooess tp
bgalmatsdabmaybe justdfisd in Ightof bgitin atEsecurilyoonaideiatfons. Cam pb^ at 226-29;^a]sD Procunferv.
Martinez,416U 5.396,420,94 SCt. 1800,1814-15,40 L Ed 2d 224 a974).AswenotBdattheoutffit,M arbnpiE^ts
unijue discplhaiy and fflourity oonsideratiDns. This is true whetherone isdea]iig with generalpopubtdon mm atss or
with those in theContcolU nit-Becau^we find thatthedisct-aooasrestrfotfonsdo notraiderCaidwelLSaoaestD the
courts,asa gaietalm atter, unm eaningfiil,and thatthe® restdctbnsaresupportedby iegitinate teourityconsideaatfons,
wewilLdefertn the judgm aitofM arfon oflEfciaisin adoptiig theprooeduiESth^have. Procunier, 416U 5.at420,94
SCt.atl884;BeILv.W o]fai,441U S.at555,99SChat1882;Campbell,at226.

 27] This, however, does not foiV di^offi of Caidw              aonessdain . CaidweHwas initial^ convicted and aaitiaioed
under,and                           jD istrictofColrmbia law iiorderto pursuepostKonvictfon ran edies.H earguesthat
the d-iciT-if-t- *607 courterred in assum ing that the rsinstatan aitof the "Shawnee PIan" would, withoutm ore, ran edy
the lack ofD istcictof Colim bia caselaw in them ain law library.U nderthe Shawnee Plan,prisoneisneeding catebw
matadalsnotavailable in them ail law iforarymay reguest, by exactcite, the materials fiom theShawneeLaw Library,
and photocopies of these matEozals would be provided them . Caldw ell dain s, therefore, that sum mary judgm aitwas
inproperon thebaaisoftheafBdavitsubm iltedbyM i]]er,and thatthereran aiigaiuine issuesofmatedalfoctin regard
tohisaccesdain .

Weagreewilh CaHwdlto theextaitthatfectualisaiesrHnaii asto the availabilityof District of Columbia casdaw
matsadals,and as to whether there are suffkdait referaice and research matsrials available to hin to obtah cites to
the casebw matetdals he neads.^^ If the exact-cite s/^sa is supplan entsd by adequatereferaicematedals in thebasic
law Ibrary, thai theuseof a bw IbraryoutsrieM arion to proviieaccessto DistrictofColambb caffimatedabis
const±utbnalVperm issibb. If, however, the basic bw Iforary^stan has notbeai in plan aitsd, or if the IbTarips do
notcontain the materbb they have beai r^resitsd to contain, then the conSdtutdonalityof the legal-accessprogram
is pbcad hto qu^tbn. Ih eithercase, CaHweHwould be abb to pursue thatpartofhis accesscbin on ran and .Thus,
we hold that the distdctcourterred ii granting M illerfem otion for sum mary judgm aiton thatpartofCaldwdlfe cbin
regardiig the adequacy ofhbacoess to DistrrtofColunbbcasebw .21 addition,iftheconditfonswehavenotBdabove
asto th<=»  ibhiiTtynfadeqi iat¥> TF'fi=»w=nnpm aterbb ii thebasicbw IbTariesaTPnotsatisfied, then Caldwdim aypursue
hbgeneralchallenge to the adequacy ofM arfonSlegal-acoeteprogram .

       rhCotgaiiv.M ilfer,708 F 2d 1241 f7thC3rl.983),weheld<xin.srtiitdbnaTjy AiadequatethepbntbenxipbcEatM arbnfcr
       pxovidiig ampga tiD State casebw matedab. Thatpbn requiced iim ates to give escactcites to the matsdab they needed, but
       H-H nn^pT^wrH«a fhT-rii«alTa.orir.TiafrrpnriPm aharwlcinpnpwFaTy tn obtail thecitES.

E .CONFISCATIDN OFLEGALAND REL3G BDU S BOOK S.
Shortfy folbw iig thebckdown,prison ofEkdabatJVI arbn oonfisoated allhardboundbooksii theposseseaon ofiim ates.
Apparpnt-Ty, the ±im atES were givsi notice onfy five m inutes prior to the confiscations. Caldw dlb personal bw and
religiDusbooksweEetakai.Allinm ates, incbdiigC aldweD,were told that,attheinm ateSoption,ofBciabwould either
 d) SEnd the oonfiscated books to an iim ateS fern ify, 2) donate the books to an outside organization, or 0) destroy
them .CaldwelLhasno fern iV to whom he could have had hb books sait, nor did hewidi thattheybe destroyed. He
wasnotgivai the chance to have thebooks^itto fidaidsoutsideM arbn.Faced with theavaibbboptions, CaldweH
^ecifiad outside charitabb organizations to which prison officbboould donate thebooks. Approxin ate^ two months
btET, iim ates were onoe again allow ed to ke^ hardbound books ii theircelb.

 WESILAW      -   201 ' Thofn^Hr-r.R-u-oi-^.N : - ; c ;
Ca]dwe]lv.MiIfer,790 F2d 589 a986)

31; Rogers, 676 F 2d at1216 ("prisDneisii the gaieralpopullatbn may, conslstEntwih the firstam endm ait, be daiied
aHoongiegatEreligxjus ser/xjes during the norn alcouise of the opeiatbn of a prisDn onfy whai paiam ount sacurity
iitEteSt     SD d±:tatE");Ai:dDeny, 586 F 2d at44; (lEStrbtbnson giDup reJigiDiissrviDes for iim ates in discplinary
aegijegatdon peon isstole so long as adeguate alEmati/es ais avaihble). Haioe, it is in petative thatM iHeron ran and
htcoduae evidaice r^tiig to thepresentneed for a totalban on group r^ious racvioes.

Ihsum ,neilherwenorthedistrictoourthaveanywayofdetEnn iniig,baradonthe *599 Tecoid,whethertheoontjiuiig
ban on group raligjous acli/ities atM arbn was raasonabfy adapted to achieving an in jiortant(DorcectdonalgoaL See
Childs, 705 F 2d at 920; M adyun, 704 F 2d at 960. The intErast in prasrving order and authority xi a prisDn is s^-
evident, Jcjnesv.NorthCarolina Prisnners'LaborUni3n,433 U S .119,132;97 S C t.2532,2541,53 L £d2d 627 0-977),
and Tntramai goni-rityis "oaitcaltD aHotherooziBCtiDnalgoals." PeH,417 U S .at823,94 SC t.at2804.N onetheless, ii
theabsaicEofevhaithiysuppoihM iUerSa^rtbn thatatotalbanonaUgroup reJigbusaervijesisandwasraasDnabfy
necESsitatBd by raourity oonsddecatbns is cDndiaoiy, and haice, an insufEicdaitbasis for sum maiy jadgm ait:.

 0-1] On ran and,M iEfemeednotdem onsdatethatgroup TPligijusaervioespossa ''pTesaitdangertp racurityand older,"
rae Jones, 433 U S. at 128,97 S C t. at2539; rather, he m ust introduce evidaice thatsuch rarvioes oonstitute a threatof
pntTTiHalvTnTmripnT-aTT>dT<y»ipt-Kff»nf Tisi-Thirinnai gam-t-Tty. id.atl32,97 SC t:.at2541.Thatevidaicemay takem any
foims. Itm ay, for exampie, consistof the espert tesdmony ofprdscn officials routheiV ra^xinaible for exerxasdng the
discretdonaiy authority at iasae hera. St. Chire, 634 F 2d at 114. Asnoted above, thatevidaicem ust relatEnotonfy to
the circumstancessurrounding the bckdown, but:,more in portanti^, to the pre^itstate ofaffaits atM adon as welL

h asraasing theadequacy of the evidence adduced, the districtoourtdiould be particularism hdfiilthatthe lockdown,
and resultant ban on group reGigbus actdvilhs, was not precpitated by a gaietal strike or rbt, see, eg., Walker, 771
F 2d at930,butiatherby a series of incidents bvolviig individualinm ates. Itisoonoeivable thatthepasageof tin e,
here over two-and-onehalfyears, hasnotaleviated thenecesity forextiaordinaiy racurityprecautbns.M arbn is the
OTLfy bvid.-sk iist±utbn in the fedeaalpeiitrnthry ^/Stm , and we have ofltHi noted that security consideiatbns there
areunigue.See,eg.,Campbe]lv.M iDer,787 F 2d 217,227 C7th CirJ.986); United States v. SiierStein, 732 F 2d 1338,
1342-43 C7thCirJ.984),cert.daibd,         U S.    ,105SCt.792,83L £d2d785 0.985);Gar2a,688 F 2dat482;Bonov.
Saicbe, 620 F 2d 609,611 C7th CirJ.980). XtisquiteporablethattheverynatiireofM arbn and the typeofhm atehousd
thera,orotherpecialciroum stances,m ay caUforfficurilym easuresnotneeded ii otherpenitHifiaries, and haice, jistify
a peim anentban on group religbusactivities. See WaJcer, 711F 2d at931.

AstheSuprsneCourtnoted hH Qtfitl:,459U S.at474,103 SGhat872-73:

  m asffisshg the serbuaiessofa threatte insHhitbnalsecurily, prisDn adm bistaatprsnecfyFarily chaw on more than
  the ^ecdfic fects surroundiig a particular bcddent; bstead, they mustcnnsidertlie characterofthe inmates confhed
  xi the institutbn, regent and bngstanding relatbnsbetweai prisDners and guards, priscnecs iiter se, and the like,
  in the volatile atmophera of a prisDn ... in ponderable foctpism ay suffice to paak potentdalV disa^rous incidents.
  The jidgm entof prison ofEicials in thb contExt, like that of those making parole deciabns, turns largefy on 'pureV
  sub^ctdve evaluatbns and on predictions of fiiture behavbr," ConnsctbutBoard of P ardcjns v. Dumsdhat, 452 u S.
  458,464,101S G t. 2460,2464 g9 L Ed 2d 158] (1981); indeed, the adm inistratDrsm ustpredbtnot jrstone irni atefe
  future actbns, as in parole, butthose ofan aitira insCitutron.

  [L2] H ence,wedonotun ean to foracbratheargum aitthattheiidbaitsleadbgup to thebckdown,althoucb lin iled to
a      bm ates, reflected an irrevexsble change b the bstbitbnalcharactErofM arbn .The F irstAm aidm aitrequires,
how ever, that security oonaideratbns advancsd to support a restrbUve policy be diract^ in plbatsd by the protBctsd
activity, and sufEiciaiti^artbuhtBd to perm itm eanbgfiilconstitutbnalraviav. Pell, 417 U S.at822,94 S G t.at2804.
O nee prison officials have satisfied this burdai *600 by btroducbg evidaice of thb nature, we must defer to their
judgm ent, unlera the bm ate can dem onsluatE that these offiriab have exaggeratsd their reponra to those racurity

 WESTLAW                    son n .-i'r      -
l/Gl.
CaHweUv.M iUer, 790 F2d 589 0.986)

tDM r.Ca]dwe]lthiDuc^ hiso^doordiouHnotand oannotbeoonsbued asan acxj^tabls altEmat±/e oraibadb-itB for
hdsdiBCtand peisDnalpajticpatiDn ii M ass." M iDerdoes notchallenge eitherthe sinaerity ofCaJdwellS beliefs or the
inportanoeofcongregatE religious servioes totheCatholr: foith. ^

       A t the oralargum enton M iDerfem otiin, CaJdv eUstatjad thattherewece no oiganized group rel^usactisdty ofany aortat
       M arbn, and that he wasproviSed "the very, veay barest type of commmicatbn wih the Priest." When adced by the court
       whethfir the totalban on ntpgi-pgaHnnai fiprmnpfiwagppam anentor trm poraiy, the A asistantU S. A ttomQ^ rephed "at this
       tin e iwouH notbe able to make thatr^resentatbn wh^erornot ±Sperm anent."
     OnthebasBoftheafaiavitsubin ittedbyM iIler,itisnotposBb]etDdetEnn mewh^eratDtalbanongroupreligfous
acti/itjes is waaanted by fficurityODnsideiat±>nsatM arbn. Cha]t=ngesto prison redxictbns thataie alleged to inhioit
theF istAm endm aitrightsofinn atES"m ust±»eana^^zed ii team softhe legitin ate policies and goalsofthe oonectfons
^'Stan ." PeIl,417U s. at822,94 set.at2804. Itisca±ica]fy in portantthaithatthe record revealthemannerii which
securily oonsidetatdDns ana in piicatBdby theprohJoited acsidty. See, eg., Weaverv. Jago, 675 F 2d 116,118-19 {6th
Cirl982);Drei3^fev.M arks,675F 2d579,581 (3dCirJ.982).Thisisnottr)saythatanisaiesuchasthatbeforeusnow
canneverbe *598 decid€!donsLunma2yjLidginent.See,eg.,M cDonaldv.H aIl,579F 2d 120,121 0-stCirJ.978) (inmatES
held in disoplinary detention); Sweet v. South Carolina D^jartm eitof Corcectdons, 529 F 2d 854, 864 (4th CirJ.975)
feam e). Ratherr, the govemm aitalinterest:afflerted in supportofa restrictis/e policy mustbe sufiScfentify- artbulatBd to
                                                                                •     14
albw form eaniigfolreview of the regulktion in qpaestdon and itsefifecton the iim ate fe asserted ri^ts.

       DavB, theparafegal5>ec:a}istatM arbn, ftatrari thatthe "O ctDber28,1983,dechratdon ofan ergaicy wasboth jastifiadand
       reasonable. Staf^ prbr to makiig theirdecisbn, oonsdeted theO ctobesr22,1983, stafEm mdets and the 0 ctober27,1983,
       StafEaasaultsand hm atTaifiTiiig..c!t7jffnnngH«gMad^agan overview ,aILtheasrbusiim atEddstiuioancea^sBaultsshoe 1980and
       payH^iia-rTy thosB hddentswhidi haveoocmredshoe Jufy1983." Davisdoesnot, how ever,hdiatEwhediertheffi hcddaits
       wereoonnected to theaggiritym attersinplbatedby groi:p ralgiousservioes.
         TheSv^ran «>Pf«i-rt-hagYgppgtTaHiyViP'"H thatroutheandautom atfcaigumentstn theeEfectthat"eveiyst^ taken to protect
         mn.cHh irir>nai r-ghtrsnfp-riertripneiw iTi laaH tDabreakdown h hstitutionaldoscplineand spciiTity" aiE jnadequate tDsjpport
         naci r'»•^^nnapr^kr>n reguhtionsorpolhies.See, eg., Cleecvhgerv.Saxner, 474U J5.193,         , 106SCt.496,504,88 L £d2d
         507 a985);ProcurLerv.M aithez, 416 O S. 396, 405, 94 SCt^ 1800,1807,40 L Ed 2d 224 a974); Jchnson v. Avsry, 393
         U S. 483,486-87, 89 set. 747, 749-50, 21 L Ed2d 718 (1969).We ffad that M iilerb aiguin ait fells squareV withh the
         Supran e C ourtbcaveat,

  O-O] The sofeeviiaiae offered by MiHerin regard to CaHwellS fise-exetcise chin was DavisS afSdavit. Theas is no
iidioation thatiD       paTalpgal.cpprhlTei-jpnffpcg^^anydegrBeofes^erti^cistDin atters ofprison ffiCurity.N ordoes
he stats thathe h rs^nsble form aking the type ofdisaetbnaiy decisbn at issuehere. See St. Chire v. Cuyler, 634
F2dl09,115 (3idCirJ.980).M jlfersubmittsdno fiirtherafiEiJavitBinis^nsetDRevearndLambfeafBdavit-Itistrue
Davis averred that, folbw ing the lockdown, a Bureau tadc foroe recom mended a numberof changes in the operation
of M arbn. H e did not stats, however, nor do we fhd any oonclisiye mention efewhere in the reoord of, the natuis
of those changes,whetherM arbn officialshad adopted than , or what pacific ^curity oroperationalconsiderations
supportthan .D avis did noteven iidiatEwhelhera ban on group relgiousactdvitieswasrsoom mended by theBureau
tadc foiDs,orwhetheritgr0w outof the tadc forces otherreoom meidatdons. 3h addition, M iDerdid notappend a copy
ofthe tadc fonoeS fhdings, recom mendations, orr^ortto hism otion forsum maiy judgm ait:. Ih diort,D avisSaffidavit
ofersno insight into why group religious ssrvioesthreatm the seairityoropetation ofMarbn.

The evidaioe,whatlittilethere may be, offered by M fTW-tn supportthe ban on group religious activities is defectove for
anotherfundam aitalreason :D avisSafEidavitxslatsd onV to theperiod in mediatsV foUow ing the lockdow n atM arbn.
M ilter makes no attempt to substantiate whether the conditions that in his judgmait neoeffidtatsd the lockdown had
persistBdtD thetdn eoftheoialargum enton hismotion forsummaiy judgm ait,som eninem onthslater. ItisundoubtabV
fwsripr to justify resbdctbns on group religious activities during the period in mediatsfy followiig a declared stats of
an ergaicy, see,eg.,W alkerv.M intses, 771 F 2d 920,930-31 (6thCir2985);RogerBV.Scuir, 676F 2d 1211,1216 (8th
Cira982),butitisyetanotherquest±>nwhetherfflcurityconaemswarxantapemianaitban.W alter,771F 2dat930-

 WESTLAW          201'/ Tl-K.-rn so:: 1<      . H•
Ca]dwe]lv.MiIfer,790 F2d 589 tt986)

         It 33fer finm c]aarwhatfoi33e Cooper drauB be gdyan ii a cannotiivol/iig the ddaadn iiatniy treatm entofmembersof
         apa3tiou]arfeih.W e alaa cJedded Cocperw ilhout the benefit of mudi of the Supran e Cou3h jirifprudence ii the area
         of inmatBrrhts,mostnotabV Cruz v.Beto, 405 O S.319, 92 SCt. 1079, 31 L £ld2d 263 (1972);Pi!Dcun3erv.M artiiez,
         416U S,396,94SCt.l800,40LEd2d224 a974);Pe]lv. Procunder, 417 U S.817, 94 SJCt.2827,41 L £d2d 495 a974);
         W olfifv.M cDanneIl,418U S.539,94SJCt.2963,41L Ed2d935 a974);Jcnesv.NorthCarolhaPrd!=nnpm'Undcn,433U S.
         119, 97SCt.2532,53LEd2d629 a977);BeILv. W odfidl, 441 U S. 520, 99 SCt. 1861, 60 L Ed2d 447 a979). In Cruz,
         &r example, the SupianeCouJhheld that an hmatsmay notbe "dmded a reaaaiable qgportunity of pumiAig hds fadth
         comparable to tihe opportunity afforded foTbw prdsDnecs who adhere to aanvaitdonalreligdous preo^ts." C ruz, 405 U S.
         at331,92 SjCt:.atl081 bnphasisadded).Thus,wedonotread Cocperasrequdrdhg thatweeppend a "Teaat:restxdctdye
         alematdve" qualdfer to the standard set foidi ii M acfyunv. Fianzai, 704 F 2d 954 C7th C dr.), osrt. denied, 464 U S. 996,
         104 SCt.493,78 L Ed2d 687 0-983), thatregufetbnsaffortiigan iim atEfefise-exercifge rightbe "reasDnaby adapted" to
         achieving an in portantpaio]ogialob;^ctdye.

      We aocord, as we must:, prisDn ofEicals wiie-rangiig defeamce in adopt±ig policies that are needed to presesrve
intEtnalOlder and fficuidty, Hewittv. H eln s, 459 U S. 460,474,103 S jC t:. 864,872-73,74 L Ed 2d 675 0-983);Bellv.
Wo]fai,441U S.at547-48, 99 S£:t.atl878;PeIl417 U S.at827, 94 S£:t.at2806,andwewi]lnotsubst±utBOur
juidgm ait for theirs "ii the abaaioe of substantialevidaiae in the isoDid to iidicatE that the officials have exaggeaated
thPTT-Ti3cpongp>tn thpgannnjandpn-at-inng." PeIl,417U S .at827,94 S JCt.at2806;SeeBlockV.Rutherford,468U S.576,104
Sjct.3227,82 LEd2d438 a984);H ewitt,459 U S.at467,470,103 SChat869-70;BeILv.W olfidi,441U S.at547-
48,554-55,562-63,99 S C t. at1878-79,1882-83,1886-87.Thisdoesnotm ean, how ever, thatitisappropriatB forus to
defercom pl^feV to prdsDn adm inistratDis. Madyun, 704 F 2d at959 .By requiring thata prisDnregulation orpolicy be
reasonab!^ adaptryl tjo an ioi portantoonsctfonalgoal, we protectthe Tegitdn ate jiterestof *597 prisonersii adhering
to thtairTiaiTjTm1  yafa and giveguidanceto prison adm inistrators ii adopting policiesthatcom p!^ with oonddtutdonal
standards,whileatthe am etin ec^propriat^deferring to theirjadgm entii mattersiabtBd to iislntiitionalsRainty.ld.

ThAdictTTri-rniirtdT<pr>,qad nfPaTdw<aTi?:i fmp-tsxPTPTaa cTaTTi on sum maiy jidgmQitLSum maiy jjidgm QitisapprDpriatB
onty'whenthepteadiigs,dqx3sitions,angtferstr)iitHrrDgatDries,adm iasoonsandaffidavits"diow thatthereisnogenuine
ifflueastDanymateidalfect:,andthatthemoviigpartyiseititIedtDa jidgmantasamatlEroflaw FedR CiyP.56fc:);
seePH .G]atfeQtErCo.v.Voith,nhc.,784F2d770 (7thCira986);Bcxv.A & P Tea Co., 772 F 2d 1372 (7thCirl985).
Tn addirinn   n.c^vTFw thereoordandanyisasonableiiferaicEsdiawn fioin itiithelghtmoSifevorabletDthenon-
movingparty.Box,772 F 2d at1375;M unson v.Fridce, 754 F 2d 683,690 (7th Cirl985),Aflera thoroughexam inatbn
ofthe record, we find that there existgenuine issuesofmatEdalfectconoemingCaldweriSfiee-exerdseckin ,and hold
thatthedistrictcDurtbgrantofsamm ary jndgmentw as in proper.

In aupportofhismotbn for sum mary jndgm ent, Milferafom itteda four-page afiSdavitofRandy J. Davis,a paralegal
^edalfetatM arbn. Davis TPrntT=ri the events precpitating the lockdown, and averred to the feet thata Bureau tadc
forcewas subfflquenti^ convenedto "review them issbn, s=yi irity and operatbnalprDnRdnTPFf atM arbn.D avis stated
fiirther that the tadc force reoom m ended thatM arbn retain its level-sk cfessdfbatbn, and thata num berofchanges ii
the operation of the instiution be made to scure, as he puts it, "a safer environm ent for both the inm ate population
and staff." D avis also stated that" Kudividualtelevisbn ®ts have bean approved foreach inm ate in generalpopulatbn
and onoe installed, fimds have bean approprated to provide reOigbusprogram ming for each raligbn, if avaibble, va
the telsvisbn sets." ^

       As we noted eadhr, we do not know what changes tinetadc force recommended, orwhether those reoommendatdons were
       adopted by ofEfcdab at Mardon.We ai^ do not know whether the cloaed-cdEOudt televdsbnq'stEra for reldgdbus broadcasts
       hasbeen hSbaHed.

Ih oppositbn to M ilerbm otbn forsumm ary jndgm ent, CaldweUsubm itted theafBdavitofReverandW estLamb,who
had bean a chaphin atM arbn for a perbd extending fisom before the October 28 bckdown to approxin atBfy nine
months therBafltEr. Revermd Lamb aveoed to the in portanoe ofM ass, a oongregatbnalseavbe, to Catholb life, and
to thPfinnfY3rTtynfraViwp>TtfaTiaiTgY^ngh«aiTPfe p wipnsnd Lamb also Stated that "the distrbution ofHoVCommunbn

 WESTLAW         2017 Thornson Reufois.h o chin to oii}iialU 5 .G oveinin entw oiks.                                           '• ^
       eHV.M     r,790 F2d 589 a986)

       ri^tunderA rticdellltD havepioceediigsji theircausesoonductedbeforeadistrictjudgeafloppoaed to am agistiatE.and to
       <=ngiYiari-iami«annfein ii-farifyof g i«4i a i-ta-ni an^w^ri^ ri^«a jidiHai doesnoCwozk tz3 daiyhin theexetoseofthatright:.

       CaHweH ccntEnds that the district court fclbwed in proper procedure ii giantiig sum m aiy jidgm ent by hoUhg an
       evid£nt±cty hearhg xi ordertD detBun he whethergenuhe issues o£m aterial&ctesdstBd as to hiscJain s. Ih ourqphion this
       haccuTateV characterizes the proceedhgsbelow. Ttis true that the firsthearhg was desgnated a "bench tral' by the court
       reporter, butonV the A ssistantU S .A thorny and CaJdweHw ere preiBit, and no witneasswere sworn or testin ony taken.
       Rather, them agistrateadced CaldweHtD outihe his clain s so as to "        an idea on them otion." Thetiansccptcorapriffld
       onytw gity-eightpages.Thesecondproceedxigw asdesgnatsd an "evidenthiyhearhg." Onceagaii,nowAne£ffiswere sworn
       ortestin ony taken. R efryrhg to the first proceedhg, them agistrate stated to CaldwelLthat'VepreviousV heard argum ents
       h thiscase," and hfiomedhin thatan affidavitof ReveraidW esl:; one of the chaphhs atM arbn,hadbeai subm ittwd to
       the aourt-H e then said to CaHwelb "Ithirk that we have covered everythhg on them otdon.W e covered eveiythxig at the
       lastm otion hearhg, didn twe?" The m agistrats then took the m othn ftjr sum m aiy judgm entunderadvisn ait. The aitire
       second proceedhg com prised four pagesoftranscrjpt.
         Caldw eRw as proceedhg pro se and his com plaht oontahed at best crHidiaoiy fectualaHegations. M oreover, Caldw eD.
         had giVim it+r^ n^TriiPr-affH»\r!rs»rin-ra -ffi oppneririnn tn M iDerSm Othn forsumm azy judgmait.Them agistzatBwas
         gidng Caldw elLthe opportxinity to hdrats what sort of evidaice he would reV on diouh the cause go to triaL Such a
         procedure is aitdreV consonant wilh the practhe of not holdhg pro s litigants to the m ore strhgait standards applied
         to fom alV toahed attorn^. See, eg., H ughesv.Rowe, 449 U S. 5,9-10,101S jC1.173,175-76,66 L Ed 2d 163 a980)
          t>ercuriam );H ainesv.Kemer,404U S.519,520-21,92 SjCt.594,595-96,30 L Ed2d 652 0.972).To feuJtthemannerh
         which the districtcourtconducted thepzDceedhgsherewou]dundu^hhhita salitarypraclhe.Thus,wew£llaonsiderthe
         proceedhgsbehw asoralargum anton M iHerSm othn for sum m aiy jadgm ait.

       CahwelLwasorighaTly COnvictBdh theP -is^rH-nfr n1iim h-fa.H                needsannpflpitr> D jcfrH-nfr;nlim hh raapTaw .

                                                               n

 3] Befoietumhgto tJiesubstantiyeiaaiesiai^byCaHwellonappeail^wem ustaddreEsaprpcBduralm atdsr.CaHweH
fi]adh3scDmp;biittjndertliefedeaalmandamusacts,28U SC .§§ 1361 and 1651 .Thed3stdctcDurtODnstEuedCaliwe]l&
complaiitasonesaekiig dtiherawritofhabeas ODipusorawritofm andam usunderthesssbaliitES.ThecDurtheGd that
neitherthem andam us statutesnorthe habeas statute provided a statntpry baFds for federal j.iTT3iict±)noverCaJdweJls
com pMitL® The dist2±toourt:, however, aflbsr *595 condidiig that it had no jimiictbn, decided the merits of
CaJdweHh ciain sby gianthg summaiy jidgmaitforM iLer.On ^peal, CaHwelL argues that the district court had
3jb;pct-m atterjLudsdictbn pursuantto 28 U S jC. § 1331.

Q
       Weexpressno cphion ccoicemhg thereasonsgivai by thedistnctcourtforholdhg thatithad no jorisdiction overC aJdwells
       oom phhtpursuant to e±her28 U S C . § 2254 orthe m csndamusprovisions.

It is welLsettiied thatpro se iitigants are notheid to the stiiigaitstandards applied t30 form alfy-trained m an bets of the
legalprofessfan, and that, aoaoidingV, we construe pro $ com plaints liberally. See, eg., H ughes v. Rowe, 449 U S. 5,
9-10,101 SjCt. 173,175-76,66 L Ed 2d 163 a980) ^erouriam );H ainesv.Kemer,404 U S. 519,520-21,92 SCt. 594,
595-96,30 L Ed 2d 652 a972);BatESV. J ^ , 745 F 2d 1146,1150 C7thC ira984);Chi]dsv.Duckworth,705 F 2d 915,922
C7th C irJ.983). Itisalso w^settled thatFed R C ivP. 8 fe.) d) doesnotrequire a plaintifftn setfcrth the statutory basis
for the districtcourts ajb;pct-m atter jirisdictfan ii orderfor the courtto assum e jurisdiction, so long as he alleges focts
sufiBdentto brhg the ca®w ithin the courts jorisdihbn.            v. S tateB card ofTax Ccm m isEaoneis,763 F 2d 272,278
C7thCirJ.985);Rohlerv.TRW , Inc.,576 F 2d 1260,1264 (7th CirJ.978);ffiealsoLossv.Blankaridrp, 673 F 2d 942,950
 C7th C irJ.982) ("In perfections in pleading style w iHnotdivesta federalCDurtof judsdictbn where the complaht as a
whole reveals a properbasis for jirisdiction.").

It is dear ftom the fece of Caldw eTiScom plaht that he has alleged a num ber of constitutionalviolatiDns, arishg out
of the lockdown atM aTHnn^ g1fFirHpr^^tn gk/ta   Hie^rW-n^nrh jiTTaiTrrinri nndpr^S TT S JC .§ 1331. See BivaiSV. Six

    WESTLAW      201'/ 1
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991)
111 S.Ct. 2077, 114 L.Ed.2d 660, 59 USLW4574

District Court, and we apply the equal protection component of the Fifth Amendment's Due Process Clause. SeeBolting
v.Shaipe,347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

                                                             I

Thaddeus Donald Edmonson, a construction worker, was injured in a jobsite accident at Fort Polk, Louisiana, a federal
enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western
District of Louisiana, claiming that a Leesville employee permitted one of the company's trucks to roll backward and pin
him against some construction equipment. **2081 Edmonson invoked his Seventh Amendment right to a trial by jury.

During voirdte, Leesville used two of its three peremptory challenges authorized by statute to remove black persons
from the prospective jury. Citing our decision in Bats3nv.Kaitucky,476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
Edmonson, who is *617 himself black, requested that the District Court require Leesville to articulate a race-neutral
explanation for striking the two jurors. The District Court denied the request on the ground that Batsondoes not apply
in civil proceedings. As empaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict
for Edmonson, assessing his total damages at $90,000. It also attributed 80% of the fault to Edmonson's contributory
negligence, however, and awarded him the sum of $18,000.

Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion
in Bataai applies to a private attorney representing a private Utigant and that peremptory challenges may not be used
in a civil trial for the purpose of excluding jurors on the basis of race. 860 F.2d 1308 (1989). The Court of Appeals
panel held that private parties become state actors when they exercise peremptory challenges and that to limit Batsonto
criminal cases "would betray Batsai's fundamental principle [that] the state's use, toleration, and approval of peremptory
challenges based on race violates the equal protection clause." id., at 1314. The panel remanded to the trial court to
consider whether Edmonson had established a prima facie case of racial discrimination under Batssn.

The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court,
holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial
classifications. 895 F.2d 218 (1990). The court concluded that the use of peremptories by private Utigants does not
constitute state action and, as a result, does not implicate constitutional guarantees. The dissent reiterated the arguments
of the vacated panel opinion. The Courts ofAppeals have divided on the issue. See Dunham v. Frank feN uisery &Crafbs,
lhc.,919 F.2d 1281 (CA7 1990)(private litigant may not use peremptory challenges to exclude venirepersons on account
of race); *618 Flidd v. Dykes, 863 F.2d 822 (CAll 1989) (same). Cf. D asv. Sky Chefe, Ohc., 919 F.2d 1370 (CA9
1990) (corporation may not raise a BatHan-type objection in a civil trial); United StatEsv.De Grose, 913 F.2d 1417
(CA9 1990)(government may raise a Batscn-type objection in a criminal case), rehearing en banc granted, 930 F.2d 695
(1991); R^moldsv.LittfeRock,893 F.2d 1004 (CA8 1990) (when government is involved in civil litigation, it may not
use its peremptory challenges in a racially discriminatory manner). We granted certiorari, 498 U.S. 809, 111 S.Ct. 41,
112 L.Ed.2d 18 (1990), and now reverse the Court of Appeals.

                                                            II

In Poweisv.Ohr>,499 U.S. 400,111 S.Ct. 1364,113 L.Ed.2d 411 (1991), we held that a criminal defendant, regardless of
his or her race, may object to a prosecutor's race-based exclusion of persons from the petit jury. Our conclusion rested on
a two-part analysis. First, following our opinions in Batscnand in CartEcv.Juiy CommigaianofG regieCC3unty,396 U.S.

 WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Governnient Works
  llu/.
 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991)
 111 S.Ct. 2077,114 L.Ed.2d 660, 59 USLW 4574

based upon a civil verdict may be preclusive of issues in a later case, even where some of the partiesdiffer. See Alfen v.
McCuny,449 U.S. 90,101 S.Ct.411, 66L.Ed.2d 308 (1980). And in alljurisdictions a true verdict will beincorporated
in a judgment enforceable by the court. These are traditional functions of government, not of a select, private group
beyond the reach of the Constitution.

Ifa government confers on a private body thepower to choose thegovernment's employees or officials, theprivate body
will be bound by theconstitutionalmandate of raceneutrality. Cf.Ta2kaii^,488 U.S., at 192-193,109 S.Ct.,at 462-463;
RenderL-fiakerv.Kdhn,457 U.S. 830,102 S.Ct. 2764, 73L.Ed.2d418(1982). At least a plurality of the Court recognized
this principle in Teayv.Adams,345 U.S. 461,73 S.Ct. 809,97 L.Ed. 1152(1953).There we found state action in a scheme
in whicha privateorganization known as the Jaybird DemocraticAssociation conducted whites-only elections to select
candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird candidate was certain
to win the Democratic primary and the Democratic candidate was certain to win the general election. Justice Clark's
concurring opinion drew from Smihv.A]lv2±^t,321 U.S. 649,664,64 S.Ct. 757,765,88 L.Ed. 987 (1944), the principle
that "any 'part of the machinery for choosing officials'becomes subject to the Constitution's constraints." Terry, supra,
345 U.S., at 481, 73 S.Ct., at 819. The concurring opinion concluded:

   **2086 *626 "[W]hena state structures its electoral apparatus in a form whichdevolvesupon a politicalorganization
  the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of
  government which draw the Constitution's safeguards into play." 345 U.S., at 484, 73 S.Ct., at 821.

The principle that the selection of state officials, other than through election by all qualified voters, may constitute state
action applies with even greater force in the context of jury selection through the use of peremptory challenges.Though
the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is
to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question
that the entire process of determining who will serve on the jury constitutes state action. The fact that the government
delegates some portion of this power to private litigants does not change the governmental character of the power
exercised. The delegation of authority that in Teny occurred without the aid of legislation occurs here through explicit
statutory authorization.

We find respondent's reliance on Polk Countyv.Dodsoiii,454 U.S. 312,102 S.Ct. 445, 70 L.Ed.2d 509 (1981), unavailing.
In that case, we held that a public defender is not a state actor in his general representation of a criminal defendant,
even though he may be in his performance of other official duties. See ii.,at 325, 102 S.Ct., at 453-54; BrantLv.FinkeX
445 U.S. 507, 519,100 S.Ct. 1287,1295, 63 L.Ed.2d 574 (1980). While recognizing the employment relation between the
public defender and the government, we noted that the relation is otherwise adversarial in nature. 454 U.S., at 323, n.
13, 102 S.Ct., at 452, n. 13. "[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an
administrative superior. Held to the same standards ofcompetence and integrity as a private lawyer,... a public defender
works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the
client." ia.,at 321,102 S.Ct., at 451.

 *627 In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does
not exist between the government and a private litigant. In the jury-selection process, the government and private
litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and
functions in DodsDn,so here a private entity becomes a government actor for the limited purpose of using peremptories
during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants
by the government and attributable to the government for purposes of invoking constitutional protections against
discrimination by reason of race.

Our decision in w estv.Atkiis,487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), provides a further illustration. We
held there that a private physician who contracted with a state prison to attend to the inmates' medical needs was a state
actor. He was not on a regular state payroll, but we held his "function[s] within the state system, not the precise terms

 WESTLAW © 2017 Thomson Reuters. No ciaim to origuial U.S. Government Work.s.                                              9
Edmonson v, Leesville Concrete Co., Inc., 500 U.S. 614 (1991)
111 S.Ct. 2077, 114 L.Ed.2d 660, 59 USLW4574

There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory
challenges have no significance outside a court of law.Their sole purpose is to permit litigants to assist the government
in the selection of an impartialtrier of fact. While wehaverecognized the valueof peremptory challenges in this regard,
particularly in the criminal context, see Bat33n,476 U.S., at 98-99, 106 S.Ct., at 1723-1724, there is no constitutional
obligation to allow them. Roa3v.Okfeho(na,487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); Stilsonv.
United States,250 U.S. 583, 586, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919). Peremptory challenges are permitted only
when the government, by statute or decisional law, deems it appropriate to allow parties to excludea given number of
personswho otherwisewould satisfy the requirementsfor service on the petit jury.

 *621 Legislative authorizations, as well as limitations, for the use of peremptory challenges date as far back as the
founding of the Republic; and the common-law origins of peremptories predate that. See Holfend v. nihois,493 U.S.
474,481, 110 S.Ct. 803, 808, 107 L.Ed.2d 905 (1990); Swain,380 U.S., at 212-217, 85 S.Ct., at 831-834. Today in most
jurisdictions, statutes or rules make a limited number of peremptory challenges available to parties in both civil and
criminal proceedings. In the casebefore us,thechallenges were exercised undera federal statute that provides, intEralia:

  "In civil cases, eachparty shallbeentitled to three peremptory challenges. Several defendants or several plaintiffs may
  be considered as a single party for the purposes of making challenges, or the court may allow additionalperemptory
  challengesand permit them to be exercised separately or jointly." 28 U.S.C. § 1870.

Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the
alleged discriminatory acts.

 [3] Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our state-
action analysis centers aroundthe second part of the Lugartest, whether a private litigant in allfairness mustbedeemed
a government actor in the useof peremptory challenges. Although we haverecognized that this aspect of the analysis is
oftena factbound inquiry,seeLugar, supra,457 U.S., at 939,102S.Ct.,at 2754-55, our cases disclose certainprinciples
of general application.Our precedents establishthat, in determining whethera particular action or course of conduct is
governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental
assistance and benefits, see Tu]saPrDfessionalCoIlect±nServries,nhc.v.Pcpe,485 U.S. 478, 108S.Ct. 1340,99 L.Ed.2d
565 (1988); Burtmv.W ihi ±ig1mPaikiigAutihorily,365 U.S. 715,81 S.Ct. 856,6 L.Ed.2d 45 (1961); whetherthe actor
is performing a traditional governmental function, see Teny v.Adam s,345U.S. 461, 73S.Ct.809,97L.Ed. 1152 (1953);
M ardiv.A]abama,326 U.S. 501,66 S.Ct. 276,90 L.Ed. 265 (1946); cf. SanFranciscDArts& AtliMis,nhc.v.UnitelStatES
Ofympt *622 Comm .,483 U.S. 522, 544-545,107 S.Ct.2971,2985-2986,97 L.Ed.2d 427 (1987); and whether the injury
caused is aggravated in a uniquewayby the incidents of governmental authority, seeSheBe/v.Kraan ei:,334 U.S. 1,68
S.Ct. 836, 92 L.Ed. 1161 (1948). Based on our application of these three principles to the circumstances here, we hold
that theexercise of peremptorychallenges by the defendantin the District Court waspursuant to a courseof state action.

[4]   (5)   Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of
state action, **2084 Tudsa PrDfe9six]al,485 U.S., at 485, 108 S.Ct., at 1345, our cases have found state action when
private parties make extensive use of state procedures with "the overt, significant assistance of state officials." 3d, at
486, 108 S.Ct., at 1345;see Lugarv.EdmcandsDnOilCo.,457 U.S. 922,102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Srmdach
V. Fam Finance Coip. of Bay view, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). It cannot be disputed that,
without the overt, significantparticipation of the government,the peremptory challengesystem, as wellas thejury trial
system of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility outside
the jury system, a system which the government alone administers. In the federal system. Congress has established the
qualifications for jury service, see 28 U.S.C. § 1865, and has outlined the procedures by which jurors are selected. To
this end, each district court in the federal system must adopt a plan for locating and summoning to the court eligible
prospectivejurors. 28 U.S.C. § 1863; see, eg..Jury Plan for the United States District Court for the Western District of
Louisiana (on file with Administrative Office of United States Courts). This plan, as with all other trial court procedures,
must implement statutory policies of random juror selection from a fair cross section of the community, 28 U.S.C. §

 VVESTLAVV © 2017 Thomson Reuters. No claim to original tJ.S. Government Works.                                          7
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                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 99-3495
                                 ___________

Billy Edward Welch,                    *
                                       *
                   Appellant,          *
                                       *
       v.                              *
                                       *
Donny Ford, Sheriff, Dallas County,    *
Arkansas; Raymond Naylor, Chief        * Appeal from the United States
Deputy, Dallas County Sheriff's        * District Court for the Eastern
Department; Gary Stell, Deputy         * District of Arkansas.
Sheriff, Dallas County, Arkansas;      *
C. W. Franks, Grant County Sheriff's   *      [UNPUBLISHED]
Department, Grant County, Arkansas; *
Dallas County Sheriff's Department;    *
David Butler, Attorney, Magnolia,      *
Arkansas; 13th Judicial Drug Task      *
Force,                                 *
                                       *
                   Appellees.          *
                                  ___________

                           Submitted: July 7, 2000

                               Filed: July 21, 2000
                                ___________

Before LOKEN, FAGG, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.
      Billy Edward Welch appeals the district court's dismissal of Welch's 42 U.S.C.
§ 1983 complaint as time-barred. Having reviewed the record and the parties' briefs,
we conclude the district court correctly applied the statute of limitations.

      Accordingly, we affirm. See 8th Cir. R. 47B.

      A true copy.

            Attest:

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

                                        -2-