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November 29, 1973

UNITED STATES of America ex rel. William L. BRACEY, Jr.
Alfred RUNDLE, Superintendent State Correctional Institution at Graterford, Pennsylvania

Joseph S. Lord, III, Chief Judge.

The opinion of the court was delivered by: LORD, III

In this lawsuit, brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, plaintiff alleges that during his incarceration in the State Correctional Institution at Graterford, Pennsylvania, he was twice placed in segregation cells under conditions amounting to cruel and unusual punishment and without first being afforded the minimal elements of procedural due process. *fn1" He seeks damages for these claimed deprivations of his Eighth and Fourteenth Amendment rights. A non-jury trial was held at which plaintiff was ably represented by student counsel appointed pursuant to Local Rule 9 1/2.

 Due Process Contentions

 The alleged denials of procedural due process occurred in connection with plaintiff's placement in the maximum-security cell block immediately upon his arrival at Graterford on February 8, 1969 and his transfer on December 31, 1969 from the general population at Graterford to punitive segregation. The facts of each transfer follow.

 On February 7, 1969, plaintiff was convicted after a full trial in the Court of Common Pleas of Cumberland County of assault and conspiracy charges stemming from his participation in a prison disturbance at the State Correctional Institution at Camp Hill, during which he assaulted a prison guard. On February 8, he was transferred from Camp Hill to Graterford and was immediately placed in Graterford's maximum-security cell block, where he remained until March 12. The record is unclear on plaintiff's status while in the maximum-security cell block. It appears, however, that he was in administrative segregation during this period, although for reasons not fully elucidated at trial he spent much of his time confined to a cell normally used for punitive segregation. *fn2" The prison records indicate that plaintiff was "interviewed" at least three times between February 10 and March 12 by the Behavior Clinic, a body composed of prison officials which normally conducts prison disciplinary hearings. Plaintiff denies that he was ever interviewed. For reasons discussed below, we need not resolve this dispute.

 The second transfer of which plaintiff complains is his placement in punitive segregation from December 31, 1969 to February 3, 1970. In late December there was a work stoppage and hunger strike at Graterford in which, according to plaintiff's own estimate, approximately 800 inmates participated and which apparently was serious enough to require the presence of Pennsylvania state troopers. Prison officials believed that plaintiff had conspired with a number of other inmates to organize and enforce the hunger strike and work stoppage. On December 31, plaintiff was removed from his cell by a prison guard and state troopers, handcuffed, and taken to a punitive segregation cell. Three days later he and other alleged strike ringleaders, handcuffed together in groups of three, were brought before Deputy Superintendent Wolfe and the other prison officials who comprised the Behavior Clinic. Wolfe asked each if he was a leader of the strike. Plaintiff denied that he was a leader but admitted that he was one of the many inmates who were participating in the strike, saying that his participation was a means of pressing the authorities for improved educational and vocational training programs and better food services. Wolfe then told the plaintiff he understood that he had threatened other inmates to coerce them to join the strike. Plaintiff asked Wolfe what proof he had to support this allegation, to which Wolfe responded by waving before him a sheet of paper on which, apparently in fulfillment of an assignment for a remedial writing course, plaintiff had written an essay discussing ways in which the prison's programs could be improved. *fn3" Plaintiff was then told that he would be sent back to punitive segregation pending further investigation. He testified that he heard nothing more until he was returned to the general population on February 3. *fn4"

 In Gray v. Creamer, 465 F.2d 179 (C.A. 3, 1972), the Third Circuit held that "the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances not evident in the [ Gray ] pleadings, meet minimal due process requirements." 465 F.2d at 185. United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (C.A. 3, 1973), reaffirmed the teachings of Gray, saying in dicta that a transfer to punitive segregation must "be based, after a hearing, on 'facts rationally determined. '" 471 F.2d at 1203. In its most recent explication of Gray, the court of appeals has held that due process is present

"when facts are rationally determined in a proceeding where the prisoner (1) is notified of the accusation and informed of the evidence against him, and (2) is afforded a reasonable opportunity to explain his actions. Sostre v. McGinnis, 442 F.2d 178, 198-199 (2d Cir. 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972)." Braxton v. Carlson, 483 F.2d 933 (C.A. 3, 1973).

 Plaintiff argues that the procedures followed in connection with his two placements in solitary confinement denied him the minimal due process required by Gray. It is now clear that Gray, as interpreted in Braxton, requires far less than plaintiff says it does. *fn5" But whatever may be the precise form of hearing required by Gray, we must decide at the outset whether Gray's teachings may be applied at all to this case, thereby deciding whether defendant is liable for damages for his failure to meet Gray's standards more than two years before the case was decided.

 Before Gray, there had been no Third Circuit decision requiring prison officials to afford a prisoner notice of the charges against him or a hearing before placement in solitary confinement. Gray and Tyrrell, as the court of appeals has since pointed out, "followed courses previously uncharted in this circuit." United States ex rel. Arzonica v. Scheipe, 474 F.2d 720, 722 (C.A. 3, 1973). There had been only one pre-Gray district court decision in this circuit requiring that the traditional benchmarks of due process be observed before a prisoner's transfer to punitive segregation, United States ex rel. Neal v. Wolfe, 346 F. Supp. 569 (E.D. Pa. 1972), but that case was decided one week before Gray and thus also more than two years after the confinements at issue here. The state of the law in 1969 and early 1970 on the due process questions plaintiff raises was tabula rasa at most.

 The threshold question to be decided here is therefore whether a prison warden may be held liable for damages for following procedures which may fall short of the standards set out in later cases but which at the time of the acts complained of were not in conflict with any binding decided cases.

  In Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), *fn6" the Supreme Court held that a police officer is not liable for § 1983 damage claims flowing from arrests made pursuant to a statute later held unconstitutional, if at the time of the arrest he "reasonably believed [the statute] to be valid." 386 U.S. at 555, 87 S. Ct. 1213, 18 L. Ed. 2d 288.

"We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983 . . . . We agree that a police officer is not charged with predicting the future course of constitutional law." 386 U.S. at 557, 87 S. Ct. at 1219.

 This case, along with other prisoners' Civil Rights actions brought after the recent landmark decisions expanding inmates' due process rights before the institution of disciplinary action, raises the question of whether prison wardens acting in reasonable reliance on the validity of procedures not yet held unconstitutional are, unlike police officers, "charged with predicting the future of constitutional law." The ...

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