administrative segregation. However, there was no evidence that Schildt or any other individual refused intentionally to send plaintiff his legal materials. Plaintiff never received his legal materials while in B-Block from February 2 to March 6, 1972, although he did receive his other personal belongings. He was allowed to correspond by mail with his attorney and did in fact write letters to and receive letters from his attorney.
While in segregation from February 2 to March 6, 1972, plaintiff's movement around the prison was restricted. He could not go to the mess hall or movies or education classes provided the inmates in the general population. He could eat in the dining hall for the segregated population and was allowed out in the yard, when weather permitted, to exercise with the other inmates in segregation. Before being placed in segregation at Graterford, plaintiff was earning 35 cents or 50 cents per day as a runner (i.e., a messenger). While in maximum security he could not perform this job or earn these wages. After being released from segregation he was given a job in the greenhouse instead of keeping his old job. While the record does not reveal whether this new job paid more or less, we credit plaintiff's statement in court that the new job was no better or worse than the old one.
Plaintiff remained in administrative segregation in B-Block from February 2 to March 6, 1972, while the investigation was pending. On February 2, 1972, a urine specimen was taken from plaintiff and sent to National Medical Services, Inc. for analysis. On or about February 7, 1972, Graterford officials received a toxicology report showing that the urine specimen test was "presumptively positive" for amphetamine. However, this toxicology report was introduced only for the purpose of showing it was sought and received and not to prove its truth. Therefore, we make no finding as to whether plaintiff was under the influence of an amphetamine on February 2, 1972, when charged with a misconduct for possession of a syringe.
On two occasions, once in mid-February and on March 3, 1972, Deputy Superintendent of Operations at Graterford, Parcell, called the State Police investigating officer to inquire if a report had come back from the laboratory as to the contents of the syringe. It was not until March 3, however, that Deputy Superintendent Parcell informed the State Police that plaintiff was being held in administrative segregation until their investigation was complete.
On or about March 6, 1972, members of the prison's Behavior Clinic treatment staff interviewed plaintiff. At this interview, plaintiff was told that he would be placed back in the general population, but that if the state police lab report indicated that narcotics were in the syringe, he would later be charged with possession of narcotics. While plaintiff was present, the record is unclear whether he was allowed to present his version of the February 1, 1972, incident (see N.T. 208, 151, 191-93, and 195-96). Neither the officer who had written the misconduct report nor Capt. Schildt were present. Nevertheless, the treatment staff concluded that plaintiff was guilty of the misconduct as written (i.e., possession of a syringe and hypodermic needle in violation of the prison rules), and they credited him with the time served in administrative segregation as his punishment. Officer Piech's misconduct report was placed in plaintiff's cumulative adjustment record. The Behavior Clinic's disposition of this misconduct report was placed in plaintiff's cumulative adjustment record. The misconduct report written by Officer Piech on the February 1, 1972, incident will be seen by the Treatment Staff when writing a parole summary about plaintiff, and the misconduct may be itemized on this parole summary. This misconduct report and parole summary will be available for inspection by the Pennsylvania Board of Probation and Parole when considering plaintiff for parole.
We find that plaintiff was not given adequate notice or hearing concerning his confinement in segregation from February 1 to March 6, 1972, to meet the minimum standards of due process required under Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972). The Gray court approvingly quoted Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971), cert. denied 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740; 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972), for the proposition:
If substantial deprivations are to be visited upon a prisoner, it is wise that such action should at least be premised on facts rationally determined. This is not a concept without meaning. In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him, . . . and afforded a reasonable opportunity to explain his actions. (Citations and footnote omitted.)
Gray, supra, 465 F.2d at 185. In Braxton v. Carlson, 483 F.2d 933 (3d Cir. 1973), the Third Circuit elaborated further on the nature and extent of the procedures required in a correctional institution setting to provide adequate due process. The Court held that proceedings in federal prison before an adjustment committee, whose function was rehabilitation as well as fact determination, comported with due process where prisoners put in punitive segregation received adequate oral notice of the charges, were informed of the substance of the evidence against them and were given an opportunity to respond, and where the committee made a reasonable investigation in order to rationally determine the facts. The Court said that due process under the circumstances did not require written notice or a written report, nor did it require representation by counsel or a lay substitute, confrontation and cross-examination of adverse witnesses or presentation of favorable witnesses.
Captain Schildt's meeting with plaintiff was not a hearing satisfying these standards, since plaintiff did not even have a reasonable opportunity to explain his position, even though he was confronted with the accusation (though not by the accusor) and informed of the evidence against him. Furthermore, Schildt's decision to send plaintiff to segregation was not based on "facts rationally determined,"
but rather on the policy that all men held for a police investigation were to be placed in segregation pending the outcome of that investigation. Similarly, the Behavior Clinic's interview with plaintiff on March 6, 1972, did not meet the Gray and Braxton standards of a due process hearing. The record is unclear whether the plaintiff received an adequate opportunity to explain his position, and it may well be that he did not. Moreover, there is no indication that any reasonable investigation was made to rationally determine the fact of whether plaintiff was wrongfully in possession of the syringe. Plaintiff testified that another inmate found the syringe in the shower room and brought it to plaintiff's cell to ask plaintiff if he had ever seen anything like it before. In fact, the only apparent investigation made of the incident was done by the Pennsylvania State Police who concluded there was no controlled substance in the syringe. (See n. 11 supra.) In short, we conclude that plaintiff did not receive a due process hearing on the alleged misconduct.
Although plaintiff was denied due process, he cannot recover damages in light of the analysis in Part II, supra.13 However, plaintiff is entitled to injunctive relief for this continuing injury. See McDonnell v. Wolff, 483 F.2d 1059, 1064 and n. 7 (8th Cir. 1973) (court found it appropriate in view of the damaging nature of misconduct reports to order expunged from prison records misconduct determinations arrived at in hearings that fail to meet minimum due process requirements). See also Black v. Warden, U.S. Penitentiary, 467 F.2d 202 (10th Cir. 1972); Hudson v. Hardy, 137 U.S. App. D.C. 366, 424 F.2d 854 (1970). We hold that: (1) there was not due process hearing before placing the alleged misconduct in plaintiff's records; and (2) the inclusion of this information in his records represents a continuing potential injury to plaintiff since it may adversely affect his chances for parole.
There remains the question of whether we can grant injunctive relief for a violation of due process that was not recognized as such by this Circuit in February or March of 1972.
The Third Circuit has not yet reached this question, Braxton v. Carlson, 483 F.2d 933, 936, 938 (3d Cir. 1973). In our view, enjoining the defendants in their official capacities to expunge the records is an appropriate remedy to prevent a continuing injury, since unlike damages which only compensate for past injury, an injunction is not retroactive in effect. There are other policy reasons why it is proper to grant an injunction while denying damages to correct a violation of due process standards set forth in Gray. It is considerably easier for prison officials to expunge records than to pay damages, and unlike the situation in the damage cases, there should be no dire effects on prison administration resulting from implementation of equitable relief such as an expungement order. Judge Body's analysis in United States ex rel. Jones v. Rundle, 358 F. Supp. 939, 952 (E.D. Pa. 1973) supports our conclusion; Judge Body also granted equitable relief to expunge a prisoner's records of a misconduct report entered before and in violation of the standards in Gray. Accordingly, we hold that the prison records should be corrected by deleting any reference to the alleged misconduct of February 1, 1972, entered on plaintiff's file.