and treatment personnel at the Penitentiary. Charges and counter-charges have been made. The teachers' union and the guards' union have entered the picture on opposite sides. The plaintiff has proceeded outside the normal grievance channels to obtain vindication. A state of turmoil existed.
A penitentiary is a unique institution fraught with sensitive security hazards and tensions in which the State has a high interest in maintaining safety, discipline and order. In the circumstances we think the Commissioner and Superintendent were justified in temporarily reassigning plaintiff to work outside of the Penitentiary until the administrative hearings are concluded. In their discretion it might have been impractical to reassign or dismiss guard officers pending a resolution of the issues, whereas the temporary reassignment of a teacher may have appeared to be more feasible and reasonable in order to avert further confrontations and possible strikes and inmate action. If, by chance, the plaintiff is discharged, he has his remedy with the Civil Service Commission. At the time of the hearing in this court, plaintiff had not lost his position or salary. Even if plaintiff's exercise of his First Amendment rights was included among the other reasons for his temporary reassignment, when one balances his rights against the interest of the State, viz., to alleviate disruption and turmoil existing in the Penitentiary, we cannot say that the administrative decision was not motivated by good faith and justified.
We conclude that plaintiff's temporary reassignment was not made solely as retribution for his exercise of his First Amendment rights. If the contrary should appear at final hearing, since defendants were acting under color of state law, if plaintiff has been deprived of any rights, privileges or immunities secured to him by the Constitution and laws of the United States, he would be entitled to a declaratory judgment, injunctive relief and damages. Civil Rights Act, 42 U.S.C. § 1983.
It appears that plaintiff wants the damages to be assessed by a jury (see complaint). However, historically an employer has a fundamental right to assign employees to positions the employer deems, in the exercise of its managerial discretion, most expedient. The employer generally is allowed to pick the time, place and manner of employment, and, absent contractual restrictions, the employee is required to conform with these requirements. And federal courts are reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials. Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970).
Moreover, it does not appear that plaintiff will suffer irreparable harm if a preliminary injunction is denied.
His salary and position have not been affected. In addition, the hearing fixed for July 12, 1973, and plaintiff's transfer to the State Regional Correctional Facility at Greensburg have been cancelled. He has been reassigned to the Pittsburgh Community Treatment Center Area in the vicinity of his residence. It does not appear that the plaintiff has been prevented or chilled up to the present time from writing letters to State officials, giving an interview with the press, lodging a grievance with his Union, bringing criminal charges against Penitentiary officers, and bringing this suit against them in federal court. He seems to have freely exercised the zeal of a crusader to obtain his vindication and correct what he believes are illegal and oppressive procedures.
Therefore, since plaintiff has not convinced us that he will probably succeed at final hearing, and since no irreparable harm has been proved, in our opinion an injunction enjoining defendants in the particulars requested should be refused. Neither will an injunction issue to enjoin future Administrative hearings on the issues involved if deemed advisable by the Bureau of Corrections. We would presume that the hearings will be presided over by impartial personnel and that the testimony will be recorded.
This opinion shall be deemed to embody findings of fact and conclusions of law required by Rule 52, Fed. R. Civ. P., 28 U.S.C.A.
An appropriate order will be entered.