The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
This a prisoner's civil rights action.
Plaintiff Edward J. Bauer is now confined in the State Correctional Institution at Huntington, Pennsylvania. This action seeks damages and injunctive relief as the result of several incidents which occurred when plaintiff was confined at the State Correctional Institution at Pittsburgh, Pennsylvania (Pittsburgh), and at the State Correctional Institution at Graterford, Pennsylvania (Graterford). Briefly summarized, plaintiff claims that: (1) he was denied due process in the course of being placed in segregation at both Pittsburgh and Graterford; (2) his treatment in segregation at Pittsburgh constituted cruel and unusual punishment; (3) he was improperly deprived of his legal materials at both institutions; and (4) a misconduct report improperly was placed on his record at Graterford.
The case was tried to the Court without a jury.
We will address each of plaintiff's claims individually and will set forth our findings of fact and conclusions of law on each claim pursuant to F.R. Civ. P. 52(a).
II. The Alleged Denial of Due Process in Being Placed in Segregation at Pittsburgh
On or about October 19, 1971, defendant Joseph R. Brierly (Brierly), then Superintendent of the State Correctional Institution at Pittsburgh, received information from the Pittsburgh Police Department that the plaintiff, along with several other inmates, was involved in a plot to attempt escape. Relying upon this information and in an effort to maintain the security of the institution while an investigation was made, the plaintiff (as well as the others) was taken from his cell in the general prison population and placed with the status of administrative segregation in a cell in the maximum security block. Plaintiff was not provided with a notice of charges or a hearing at that time, but merely informed that he was under investigation. On or about October 27, 1971, plaintiff was brought before Deputy Superintendents Walters and Wehrle, Major Jaczk and another unknown individual at the front of the maximum security block. At this time, plaintiff was told that the reasons he was in maximum security was because he was a "security risk" and "charged with conspiracy," but no further explanation was given. A similar meeting was held three or four weeks later.
Plaintiff remained in the maximum security cell block without a due process hearing and in the status of administrative segregation until December 1, 1971, when he was transferred to Graterford in order to separate those allegedly involved in the escape plot in the Pittsburgh institution.
The present case falls squarely within the Third Circuit's holding in Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir. 1973). In fact, that case is on all fours and controlling, since Biagiarelli and plaintiff were allegedly involved in the same plot to escape, and Biagiarelli was also confined in maximum security administrative segregation from October 19, 1971, to December 24, 1971, without notice of any charges or a hearing. Biagiarelli brought suit and alleged that his confinement in segregation was a due process violation and constituted cruel and unusual punishment. In Biagiarelli, the Court of Appeals first reiterated its holding in Gray v. Creamer, 465 F.2d 179, at 185 (3d Cir. 1972), where it stated:
. . . 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 . . . meet minimal due process requirements.
There is however a second reason why plaintiff cannot succeed on this claim. Even if plaintiff had proved liability and damages, we would not award damages retroactively for a violation of the Third Circuit's new due process standards established in Gray v. Creamer, supra, which was decided on August 14, 1972. In the recent case of United States ex rel. Jones v. Rundle, 358 F. Supp. 939 (E.D. Pa. 1973), the late Judge Body analyzed extensively the problem of retroactive damages in this area. He concluded that to the extent Gray makes new law in this circuit, it should not be made retroactive with regard to monetary damages. In reaching this conclusion Judge Body found that: (1) awarding damages was not needed to advance the major purpose of Gray of increasing fact-finding reliability; (2) the state law enforcement authorities had reasonably relied on the pre- Gray standards; and (3) making Gray retroactive in damages would have a dire effect on prison administration. While agreeing with Judge Body's conclusion, Chief Judge Joseph S. Lord, III advanced still another theory for finding a prison warden not liable for damages for following procedures later held unconstitutional. United States ex rel. Bracey, Jr. v. Rundle, 368 F. Supp. 1186 (E.D. Pa., filed Nov. 29, 1973). In Bracey, Chief Judge Lord relied upon Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), where 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. Reasoning from Pierson, Chief Judge Lord found that a reasonable reliance on the validity of the prison procedures before Gray rendered defendant immune to plaintiff's damage claims. We agree with the persuasive reasoning in the Jones and Bracey opinions and therefore adopt their conclusion. Hence, we hold that defendants cannot be held liable retroactively for damages with respect to the due process claims asserted in this suit as arising before the Gray decision was handed down.
III. The Allegation of Cruel and Unusual Punishment at Pittsburgh
After the first week of plaintiff's confinement in maximum security, he was given all the normal privileges provided inmates in maximum security. These included: daily exercise if the weather permitted; showers at least twice a week; three meals per day; a blanket and bed clothing; adequate clothing; personal property and hygiene implements (including a toothbrush, bath towel and hand towel); and regular visiting privileges. Plaintiff was also allowed to speak with fellow inmates during exercise periods and while he was in his cell. Since plaintiff had undergone surgery (a bilateral otoplasty on his ear) on August 18, 1971, he was also given medical treatment during his confinement in maximum security. A doctor came to maximum security every day. The plaintiff was not given his toothbrush or toothpaste in maximum security for about seven to ten days and he never received his comb or a pillow. While in maximum security plaintiff never received any reading matter, including the legal materials he had had in his cell in the general population. However, we ...