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October 7, 1965

Robert W. NEGRICH, Plaintiff,
William R. HOHN, Warden, Westmoreland County Prison, Marshall V. Benjdich, Asst. County Detective, Edward F. Singer, Pennsylvania State Police, Defendants

The opinion of the court was delivered by: DUMBAULD

 Plaintiff, Robert W. Negrich, now an inmate of the Pennsylvania State Correctional Institution at Huntingdon, was confined at the Westmoreland County Prison on November 9, 1963, awaiting trial on a charge of armed robbery. A prison breach took place on that date. Five other prisoners escaped, but were caught. They implicated Negrich. He now contends that he acquiesced in the planned escape through fear, as otherwise the other prisoners would have hit him in the head and locked him up in a cell; but in any event his own statements show his guilt of participation in the prison breach, in the course of which a guard, John Marefka, was injured. The inmate's statements also show that he altered medical charts and obtained and used quantities of drugs or pills in violation of prison regulations.

 Negrich was indicted in Westmoreland County for aiding prison breach at No. 200 January Term 1964 and, with the other five participants, at No. 204 January Term 1964, for assault and battery, aggravated assault and battery, and assault and battery with intent to kill. All defendants pleaded not guilty and went to trial on March 9, 1964. At this trial Negrich was represented by counsel, his own attorney who procured his acquittal in the armed robbery charge, and was appointed by the Court to defend him in the charges arising out of the prison breach.

 After four days of trial at which the Commonwealth's case was presented, Negrich and the other defendants changed their pleas from not guilty to guilty. Negrich was given two years' suspended sentence on the aiding prison breach charge, and 2 1/2 to 5 years on the assault counts. (The sentence could have been 2 years on the first count, three years at labor or solitary confinement on the second, and seven years solitary confinement at labor on the third. 18 P.S. §§ 4708, 4709, 4710.)

 On May 11, 1965, Negrich filed in this Court a lengthy hand-written complaint on pink and yellow paper. The complaint cited the Eighth Amendment, the Fourteenth Amendment, 42 U.S.C. §§ 1983-1986, as well as 28 U.S.C. §§ 1331 and 1343. Named as defendants were the sentencing Judge, the Honorable Earl S. Keim, the District Attorney, Richard E. McCormick (who did not actually participate personally in the inmate's trial), Sheriff Alex W. Copeland, Prison Guard John Marefka, Assistant County Detective Marshall W. Benjdich [should be spelled Brajdich], and State Trooper Edward F. Singer. The first four abovenamed parties were eliminated by orders of this Court dated May 18, 1965, and September 21, 1965. The Court appointed to represent the plaintiff in forma pauperis, as a public service without any avenue of remuneration, Harry Alan Sherman, Esq., who had recently been successful in a case under the legislation involved here, Basista v. Weir, 340 F.2d 74 (C.A.3, 1965). Other able members of the bar of this Court have appeared for the defendants, and the interests of all parties were capably represented at the argument on defendants' motion to dismiss.

 The issue, as limited at the argument, is whether plaintiff states a case under the civil remedy provisions *fn1" of section 1 of the Act of April 20, 1871, 17 Stat. 13, commonly known as the "Third Force Bill" or the "Ku Klux Act", as carried forward in 42 U.S.C. § 1983, which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 The legislative history of the section is discussed at length in the opinions in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and in Horace Flack, The Adoption of the Fourteenth Amendment (1908) 227-49. See also Screws v. United States, 325 U.S. 91, 99-100, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); Hague v. C.I.O., 307 U.S. 496, 509-510, 59 S. Ct. 954, 83 L. Ed. 1423 (1939); and Claude G. Bowers, The Tragic Era (1929) 340-48.

 Counsel was correct in thus limiting the issues, and treating the other portions of plaintiff's original paper writing as surplusage. No issue involving the Eighth Amendment (which provides that "cruel and unusual punishments" shall not be "inflicted") is raised. That provision was directed against the English experiences that loomed large in the minds of the framers of our government, such as branding, mutilation, and cutting off the ears in Star Chamber. 3 How. State Trials 561, 711, 725. Disembowelment, being drawn and quartered, and all the gory incidents of the punishment for treason in England were banned. Torture, boiling in oil, and other unnecessary forms of cruelty are forbidden. Wilkerson v. Utah, 99 U.S. 130, 135-136, 25 L. Ed. 345 (1879); Weems v. United States, 217 U.S. 349, 368-373, 30 S. Ct. 544, 54 L. Ed. 793 (1910). It is arguable that in some circumstances a common or usual form of punishment may be forbidden because it is disproportionate to the offense (217 U.S. at 368, 30 S. Ct. at 549) or imposed for a physical disease which is not a crime. Robinson v. State of California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). See also dissent of Mr. Justice Goldberg to denial of certiorari in Rudolph v. Alabama, 375 U.S. 889-891, 84 S. Ct. 155, 11 L. Ed. 2d 119 (1963). Conceivably, it may sometime be held that capital punishment of persons whose crimes were the product of mental disease is cruel and unusual punishment Cf. United States v. Currens, 290 F.2d 751 (C.A. 3, 1961).

 But to be cruel and unusual punishment it is first necessary that the hardship suffered be "punishment". Thus deportation, though it may deprive a worthy individual of much that he holds dear, is not punishment. Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 98 L. Ed. 911 (1954). So too, under the accepted philosophy of Juvenile Court statutes, the treatment accorded to juveniles for their rehabilitation does not constitute punishment, even if it includes confinement in an institutional setting. Holmes' Appeal, 379 Pa. 599, 605, 109 A.2d 523 (1954). The same rule applies to confinement in a mental institution.

 Not every physical hardship or restraint suffered in the course of governmental activity is to be regarded as punishment. Otherwise much military training in the armed services, and even the space program, would be proscribed. Punishment is a penalty inflicted by a judicial tribunal in accordance with law in retribution for criminal conduct. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-167, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); cf. United States v. Brown, 381 U.S. 437, 456-457, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965).

 Similarly it is correct that 42 U.S.C. §§ 1975 and 1986, relating to conspiracy, are inapplicable here.

 We turn therefore to 42 U.S.C. § 1983 as the sedes materiae for our inquiry.

 This section first requires that the abuses complained of be committed under "color" of State authority. Here we think plaintiff must be held to have made out his case. Whatever merits the views of the late Mr. Justice Frankfurter in Monroe v. Pape, 365 U.S. 167, 212-223, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), may have as a matter of historical scholarship, as to which we venture no opinion, not having had the opportunity to engage in the necessary research or to master the pertinent materials relating to the legislative history of the statutes involved, we are bound by the majority's contrary view. This is particularly so when Mr. Justice Frankfurter admits having himself formerly acquiesced in the view later recanted *fn2" (ibid., 218, 81 S. Ct. at 501) and when Mr. Justice Harlan *fn3" was with the majority (ibid., 192, 81 S. Ct. at 486).

 The section next requires that "deprivation" of rights, privileges, or immunities "secured by the Constitution and laws" be established. We do not pause to consider whether "deprivation" requires conduct more affirmative in its character than would "denial" of rights under the equal protection clause. See Monroe v. Pape, 365 U.S. 167, 256-257, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). We shall treat any violation as a deprivation. Likewise we do not pause to consider whether rights "secured" by federal constitutional or statutory enactments are of a more limited scope than rights "conferred", "granted", or "created" by such provisions. *fn4" ...

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