Section 1983 action are that the plaintiff be a United States citizen or under its jurisdiction, that the defendants be acting under color of state law, and that the defendants caused the deprivation. The plaintiff is a citizen of the United States by birth. At all times relevant to this suit, the defendants were acting in their official capacities and their actions were made possible only because of their official positions. Defendants do not seriously dispute that either of these elements of the statute has been proved.
There is considerably more disagreement about whether the actions of defendants Rundle and Lightcap caused the deprivation of rights. Superintendent Rundle was not present during any of the particular proceedings against the plaintiff, and he was unaware of any departures from the usual procedures that occurred on November 23, 1970. He was, however, in charge of the prison and was or, in his position, should have been aware that the usual procedure under his supervision did not include informing the accused prisoner of the evidence against him. The procedure denied the plaintiff his constitutional rights. In his position as superintendent, he could have ordered his subordinates to inform the accused of the evidence against him. Applying the common law standard appropriate in Section 1983 cases, that one is liable for the natural consequences of his actions, Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), we hold that defendant Alfred T. Rundle is liable to the plaintiff for the deprivation of constitutional rights. Deputy Superintendent Lightcap was the senior administrator at the Clinic; he ran the Behavior Clinic that met on November 23, 1970. At the Clinic, defendant Lightcap did not personally stop the plaintiff from explaining; another official who is not a party in this case did. The defendant argues that because he did not personally stop the plaintiff from speaking, he did not cause the deprivation of rights. He makes this argument despite the fact that he was in charge of the meeting; he witnessed his subordinate quiet the plaintiff; he did not speak out to stop that action; and he failed thereafter to inform the plaintiff that he had a right to speak. The only possible conclusion is that defendant Lightcap, by failing to correct his subordinate's action at best condoned his conduct and at worst participated in it. Defendant Lightcap is indeed responsible for a deprivation of constitutional rights. See Wright v. McMann, 460 F.2d 126, 135 (2d Cir.), cert. denied 409 U.S. 885, 93 S. Ct. 115, 34 L. Ed. 2d 141 (1972); Potts v. Wright, 357 F. Supp. 215, at 218 (E.D. Pa., 1973).
The next issue that defendants raise is that they are immune from civil liability under the Civil Rights Acts. Wardens and jailers generally have been held to be immune under the Civil Rights Act for merely keeping people in jail pursuant to a court order. Lumbermens Mut. Cas. Co. v. Rhodes, 403 F.2d 2, 7 (10th Cir. 1968), cert. denied, 394 U.S. 965, 89 S. Ct. 1319, 22 L. Ed. 2d 567 (1969). In addition, state administrators, presumably wardens would be included in this classification, are immune from civil rights suit liability for discretionary acts specifically authorized by state statutes. Franklin v. Meredith, 386 F.2d 958, 960-961 (10th Cir. 1967). We note, however, that "the purpose of § 1983 . . . is to provide a federal remedy for the deprivation of federally guaranteed rights in order to enforce more perfectly federal limitations on unconstitutional state action. To hold all state officials immune from suit would very largely frustrate the salutary purpose of this provision. We conclude that the defense of immunity should be applied sparingly in suits brought under § 1983." (footnote omitted) Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966).
The limited immunity available to the defendants will not protect them in this case. The allegations against them are not simply for keeping the plaintiff in custody but rather for putting him in punitive segregation without a proper hearing. Nor does any state statute which has been pointed out to us or which we have found authorize placing a person in solitary confinement for a substantial period of time without a proper hearing. Therefore, the defendants cannot rely on the doctrine of immunity to avoid liability.
Defendants also assert that they are not liable because their actions were taken in "good faith and without improper motive." Generally, however, good faith is not a defense to a civil rights action. Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968). In exceptional cases, however, in which the civil rights action is based on facts which would also support a common law tort action, good faith and absence of an improper motive is a defense to the statutory action if it is also a defense to the tort. See Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), cert. denied 396 U.S. 901, 24 L. Ed. 2d 177, 90 S. Ct. 210 (1969); C. Antieau, Federal Rights Acts § 89 (1971). The only two tort actions which the complaint might arguably support are false imprisonment and malicious prosecution. With regard to false imprisonment, good faith is simply not a defense. Restatement (Second) of Torts § 44 (1965). Good faith is a defense to malicious prosecution, but the facts do not support a tort action for malicious prosecution. Malicious prosecution is a use of legal process to satisfy one's own malice towards another; it is not a changing or denial of legal process. See 23 Pa. L. Enc. Malicious Prosecution § 1 (1959).
There is one further problem that the plaintiff must overcome in order to gain a verdict. The decision in Gray v. Creamer could be made prospective and applied to disciplinary hearings which occurred after August 14, 1972, the date of the Gray decision. The United States Court of Appeals for the Third Circuit has stated that " Gray and Tyrrell followed courses previously uncharted in this circuit and the full impact of their holdings remains to be defined. Additionally, because of the novelty of their doctrines, the court is yet to be faced with the question of whether there may be only prospective application of their teachings." United States ex rel. Arzonica v. Scheipe, 474 F.2d 720 (3d Cir., 1973) (per curiam), citing Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965); Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969).
Regarding retroactivity, the Supreme Court has:
"firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored. Since that time, we have held to the course that there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the Bill of Rights. . . . Rather we have proceeded to 'weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Linkletter, supra, at 629 [of 381 U.S., 85 S. Ct. 1030]."
Williams v. United States, 401 U.S. 646, 651-652, 91 S. Ct. 1148, 1151, 28 L. Ed. 2d 388 (1971). (footnote omitted)
In this retroactivity discussion, monetary damages and equitable relief will be discussed separately. They must be discussed separately because the hardships caused to one party or the other are different for each type of remedy. Because the degree of hardship is different for each type of remedy and because the test for retroactivity is balancing of hardship and effect, the conclusions concerning retroactivity of civil rights action for monetary damages and for equitable relief need not be the same.
We note that the doctrine of retroactivity allows courts considerable discretion in the method of implementation. For example, when the Court of Appeals for the Third Circuit held that guardians for minors could not be appointed to create diversity, it also held that the rule was to be applied retroactively only if no serious hardship would be imposed on either party or the administration of justice. Siegel v. Slaney, 419 F.2d 176 (3d Cir. 1969). This rule required a case-by-case analysis of hardships rather than an application from a particular date. In addition, the United States Supreme Court has chosen several different dates from which decisions are made prospective and has both allowed and disallowed retroactivity to cases on appeal at the time of the decision. See The Supreme Court, 1965 Term, 80 Harv. L. Rev. 91, 135 (1966).
We note that all of the recent United States Supreme Court opinions dealing with the retroactivity problem have involved criminal procedures, not civil suits for monetary compensation and equitable relief. See e.g., Williams v. United States, supra, (dealt with Chimel); Desist v. United States, supra, (dealt with Katz); Linkletter v. Walker, supra (dealt with Mapp); Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), (dealt with Escobedo and Miranda); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966), (dealt with Griffin); Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L. Ed. 2d 650 (1964), (dealt with Gideon). These cases establish the general rules for determining whether a new constitutional principle should be made retroactive. Generally, a balancing of the effects of retroactivity is necessary. The Supreme Court has stated that the principles of retroactivity apply equally to civil and criminal cases. Linkletter, supra, at 627 of 381 U.S., 85 S. Ct. 1731, 14 L. Ed. 2d 601. Therefore, we will undertake the same type of analysis in this case, but other factors will become relevant because the effects of civil remedies may differ from criminal remedies.
Before the doctrine of retroactivity should be analyzed, it must be determined that the teachings of Gray and Tyrrell are in fact novel. There is little doubt that they are. First, the Court of Appeals for the Third Circuit has stated in Arzonica, supra, that Gray and Tyrrell are novel and follow courses previously uncharted in this circuit. Moreover, it was not until very recently that federal district courts have become more active in supervising prison matters. We believe the landmark case which began the trend was Sostre v. Rockefeller, 312 F. Supp. 863 (S.D.N.Y., 1970), aff'd in part, rev'd. in part; Sostre v. McGinnis, 442 F.2d 178 (2d Cir., 1971) (en banc). Thereafter, other district courts followed Sostre. See, e.g., Landman v. Royster, 333 F. Supp. 621 (E.D. Va., 1971); Lathrop v. Brewer, 340 F. Supp. 873 (S.D. Iowa, 1972); Krause v. Schmidt, 341 F. Supp. 1001 (W.D. Wis., 1972); Colligan v. United States, 349 F. Supp. 1233 (E.D. Mich., 1972). The first case in this circuit to follow Sostre is United States ex rel. Neal v. Wolfe, 346 F. Supp. 569 (E.D. Pa. Aug. 7, 1972), which was decided only one week before Gray.
These very recent opinions should be compared with opinions handed down about the same time or only slightly before. "[Prison] officials have wide discretion in matters of prison operation and discipline." Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967). "[Where] the steps taken by the states reasonably maintain discipline, such action is not under the supervisory direction of federal courts." Gray v. Creamer, 329 F. Supp. 418, 420 (W.D. Pa. 1971), rev'd., supra. "Discipline reasonably maintained in . . . prisons is not under supervisory direction of the federal courts." Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937 (3d Cir. 1969). "[This] court cannot conclude that the transfer of an inmate [of a prison] from one wing to another . . . involved any federally protected rights." Hanvey v. Pinto, 441 F.2d 1154 (3d Cir., May 7, 1971). This move was punitive and for disciplinary reasons, and Hanvey was handed down approximately one and one-half months after the Second Circuit en banc opinion in Sostre and did not cite Sostre. We conclude that Gray and Tyrrell contained new holdings of law in this circuit, and broke with prior, recent decisions.
In Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967), the United States Supreme Court set out the criteria for deciding retroactivity questions:
"(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
We begin by analyzing the purposes of the Gray standards. In neither Gray nor Tyrrell did the Court state the specific purposes for the new standards. Undoubtedly, the standards represent a whole complex of values that the due process clause represents. One interest served is the interest of society in treating a prisoner fairly; fair treatment in prison will increase the chances of successful rehabilitation by avoiding reactions to arbitrariness. Morrissey v. Brewer, 408 U.S. 471, 484, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Certainly, however, the major reason for providing due process safeguards for prison disciplinary hearings is that irrationally, unfairly determined conclusions are not reliable. The Court of Appeals apparently believed that some prisoners who have broken no rules are placed in solitary confinement. We conclude that the single most important purpose to be served by the new constitutional standards is to increase the reliability of the fact-finding process.
This conclusion weighs heavily for retroactivity. Regarding criminal procedure, the Supreme Court has said:
"Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given completely retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances."