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August 23, 1972

Allyn R. SIELAFF and Joseph R. Brierley, Gilbert Walters, Added Defendant

Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 In this prisoner's civil rights action brought under the Civil Rights Act, 42 U.S.C. ยง 1983, we have afforded the plaintiff a full non jury trial in court after having appointed counsel for him. Counsel has pressed his client's rights vigorously and ably and deserves the sincere thanks of the court.

 Plaintiff seeks declaratory and injunctive relief with respect to his confinement in administrative segregation or "solitary" and deprivation of access to the courts. He claims that his confinement in segregation was without a due process hearing and that the same is required by law and further that the same constituted cruel and unusual punishment.

 We have heard both the plaintiff and the prison officials as witnesses in this case. It appears that the plaintiff is confined in the Western Pennsylvania Correctional Institution at Pittsburgh under a sentence of life imprisonment for first degree murder. On October 19, 1971, he claims he was in his cell when officers and guards came and took him to the "home block" or solitary without any warning and gave no reason for his confinement there although he was later told he was being held on "suspicion".

 He states that he was held in the home block until December 24 and was then placed in the security range for 35 days. He states he later was given a hearing at the home block but no witnesses were produced against him. He says he was only allowed out 20 minutes per day and that the place was infested with rats, mice and roaches. His further claim is that when he was taken to the home block all his legal materials were taken from him and not restored for some period of time, that he had a Post Conviction Hearing Act Petition ready to be filed in the state courts and this also was taken from him.

 The prison authorities presented evidence that an emergency situation existed on October 19, 1971. They were unable to give him any hearing because they had received information of a conspiracy for a prison break in which plaintiff was involved from reliable sources, to wit: the Chief of Police of the City of Pittsburgh. In their judgment this emergency situation justified placing the plaintiff in solitary immediately for reasons of security. This does not explain, however, why a hearing was not later held.

 We find from the evidence that there was no substantial interference with plaintiff's access to the courts since his legal materials which were held up temporarily while there was a search of his cell were shortly thereafter returned to him. We have the fact that the complaint in this case was filed on November 18, 1971, and further Judge Fiok of the Court of Common Pleas of Allegheny County has stated that the Post Conviction Hearing Act Petition was received on October 26, 1971, indicating that plaintiff had full access to the courts during the time he was in segregation. We further find that plaintiff has not proved by a preponderance of the evidence that his quarters in segregation were infested with rats, mice and roaches. This was denied by the prison authorities and there is no evidence of it other than the plaintiff's bare word that at times this condition existed.

 This brings us to plaintiff's main contention that under the circumstances of this case he was and is entitled to a due process hearing before being placed in administrative segregation or solitary.

 We start with the basic premise that plaintiff is duly held as a prisoner in a state correctional institution and therefore does not have the usual freedoms of one who is not so incarcerated. In the recent decision of the Court of Appeals for our Circuit in Wilson v. Prasse, 463 F.2d 109 (3d Cir. 1972) this instruction to the jury was approved:

"Now, it appears in this case that plaintiff is a prisoner duly incarcerated in a state correctional institution. Now, this very fact means that he is deprived of his liberty to a great extent. This is why he was sent there. In such a case the prison authorities have the right to make reasonable rules and regulations for the operation of the prison, and they have wide discretion in the matters of prison operation and discipline."

 The court further quoted at length from its prior decision in Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970):

"Stated simply, a man in jail is not a free man; the denial of his right to drink freely from the cup of freedom is the very hypostasis of confinement. . . .
". . . [The objective of incarceration] is to circumscribe certain activities and opportunities not only available in, but also characteristic of, an open societal setting. And, unpleasant as it is to contemplate the physical restrictions of a 'settled environment', we must also recognize that even those rights which survive penal confinement ...

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