The opinion of the court was delivered by: MASTERSON
Plaintiff has brought this action under 42 U.S.C. § 1983
to recover $10,489 damages for violation of his constitutional right to due process of law by defendants, Clarence Wolfe, Deputy Superintendent of the State Correctional Institution at Graterford and Clayton Ruth, Major of the Guards at Graterford. The issue before the court is whether or not plaintiff was afforded procedural due process by the prison authorities when he was subjected to institutional punishment. This case was tried before the court without a jury on March 29, 1972, and we have resolved the issue in favor of the plaintiff.
1. In May, 1964, Gaylord Neal, plaintiff, was committed to the State Correctional Institution at Graterford on two concurrent sentences of five to twenty years for separate counts of armed robbery and aggravated robbery. (N.T. 2).
2. On August 30, 1964, the plaintiff was apprehended by one Sergeant Zanesky, a guard at the Graterford Institution, for being in possession of a piece of beaverboard which is used for construction purposes in the institution. The beaverboard, which had been converted into a checker board by another inmate, was being used by plaintiff for his personal enjoyment. Sergeant Zanesky reported this infraction of prison rules to the Disciplinary Board of the Institution. (N.T. 3).
3. Plaintiff was advised of the charge against him and accorded a hearing before the Prison Disciplinary Board. Major Clayton Ruth presided over that hearing. (N.T. 11). The Board authorized the deduction of $1.00 from plaintiff's prison account to compensate the state for the conversion of its property. (N.T. 3).
4. On June 23, 1966, plaintiff decided to appeal the action of the Disciplinary Board. He was motivated by a desire to remove any blemish that might impede commutation of his sentence, early parole, or bail pending appeal. He was also concerned that his institutional conviction might adversely influence his opportunity to obtain a better job position within the institution. (N.T. 12, 14).
5. On June 23, 1966, plaintiff submitted an institutional request form to Superintendent Rundle challenging the legitimacy of the 1964 fine imposed by the Disciplinary Board. The request read as follows:
"I would like to have my institutional record expunged. . . . The Disciplinary Board, scoundrels that they are, sat upon my case, and with a false cloak of judicial authority, confiscated over 6 days kitchen pay from me.
Is this the origination (sic) of the term, 'It takes a thief to catch a thief'?
I would sincerely appreciate consideration about any change that could be made in my record."
6. Approximately one hour after submission of this request, plaintiff was locked in his cell and not permitted to join the prison population. (N.T. 17).
7. About an hour after that plaintiff was brought before Mr. Wolfe in Wolfe's office. Defendant Clayton Ruth and the block sergeant were the only other individuals present. (N.T. 17-18, 46).
8. Mr. Wolfe inquired only whether plaintiff had written the statements on the request form to which plaintiff responded affirmatively. Without further elaboration or explanation, Mr. Wolfe ordered that plaintiff be taken out. Plaintiff was then taken to the maximum security block (solitary confinement). (N.T. 17).
9. Mr. Wolfe afforded plaintiff no opportunity to explain his remarks. (N.T. 19, 45, 46). Nor was plaintiff informed of the charges against him or brought before the Disciplinary Board prior to being placed in solitary confinement. (N.T. 18).
10. Plaintiff was not afforded an opportunity to speak to anyone else about the action taken against him prior to his confinement in the maximum security block. (N.T. 19).
11. In an annotation on plaintiff's request slip, Mr. Wolfe indicated that he resented being called a scoundrel and thief. See Inmate's Request to Staff Member, JBC-135A, dated June 23, 1966. Mr. Wolfe, however, had not sat upon the Board which fined plaintiff in 1964.
13. For the first three days of his confinement, plaintiff was fed a regular noon meal and a reduced diet for breakfast and supper. (Exhibit B). Plaintiff received no exercise ...