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May 28, 1974

Norman C. GRAY, Jr., et al., Plaintiffs,
J. Shane CREAMER, Attorney General of the Commonwealth of Pennsylvania, Defendants

Gourley, Senior District Judge.

The opinion of the court was delivered by: GOURLEY

This is a Civil Rights proceeding filed pursuant to 42 U.S.C.A. § 1983 by plaintiffs who assert that various actions by defendants constitute violations of their constitutional rights. When this suit was instituted, all plaintiffs were inmates of the penal system of the Commonwealth of Pennsylvania and were incarcerated at various times at the State Correctional Institution at Pittsburgh. Defendants at the time this suit was filed were all employees of the Commonwealth of Pennsylvania, and all acted in some capacity in connection with the said penal institution. The Court has afforded the parties a full and complete trial and has considered the briefs and argument of counsel relative to plaintiffs' motion for attorneys' fees.

 The plaintiffs contend that their constitutional rights have been infringed as a result of mail censorship, censorship of various publications, cruel and unusual punishment, denial of procedural due process, and being transferred as punishment for participation on the newspaper VIBRATIONS. Each of these contentions will be individually considered. However, the Court wishes to make clear that in determining whether there has been any violation of plaintiffs' constitutional rights it is guided by an overriding principle that:

"To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community. The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably 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)

 The censorship of incoming and outgoing prisoner mail is an area which touches on the rights of both the prisoner and the sender or recipient of the mail. Procunier v. Martinez, 42 U.S. Law Week 4606, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974).

 The Supreme Court in this decision upholds censorship of prisoner mail provided two criteria are satisfied: (1) the regulation in question must further an important or substantial government interest unrelated to the suppression of expression, and (2) the limitations of First Amendment freedoms are no greater than necessary to protect the particular governmental interest involved.

 The situation which prevails at the State Correctional Institution at Pittsburgh depends upon the category of mail involved. Incoming and outgoing privileged mail, i.e., mail from lawyers, judges and state and federal officials is not censored in any way. Such mail sent to prisoners is opened by the inmate-addressee in the presence of an employee of the Institution and simply checked for any contraband. Privileged mail sent by a prisoner is never opened or spot-checked. All non-privileged incoming mail is opened and inspected for contraband before the inmate receives it, but it is not read, censored or reproduced. Non-privileged outgoing mail is spot-checked for security reasons to insure that mail privileges are not being abused, as for example to prevent attempts to devise escape plans. Otherwise, outgoing mail is not censored, read, or reproduced. On this basis it must be concluded that there is no constitutional violation of plaintiffs' rights to receive or send mail, and that the criteria of Procunier, supra, are met.

 Closely related to the question of general mail censorship is the issue of the extent to which censorship of publications should be permitted. It is the Court's belief that the standard announced in Procunier, supra, is also applicable to the receipt of various periodicals, books and magazines. A censorship committee has now been established to implement an administrative directive which sets guidelines for the censoring of various publications. This directive is included in Part A of an Appendix to this Opinion and is consistent with standards set forth in Procunier. The Court is satisfied that the screening process as employed with respect to various publications at the Pittsburgh Correctional Institution does not seek to unnecessarily hamper freedom of expression and that a substantial governmental interest is served in maintaining prison security and discipline in implementing the directive. While there may have been a delay in establishing the censorship committee in accordance with the administrative directive, this resulted not from any effort to violate plaintiffs' rights, but from insufficient personnel at the prison.

 Although in certain instances some books were returned to the publisher without being given to the inmate, these were occasions in which the prisoner had not complied with ordering procedures whereby a request is first submitted to the Institution and then forwarded to the publisher. Otherwise, the Court finds that there has been no censorship violative of plaintiffs' rights.

 Plaintiffs contend that punishment in the form of transfer or segregation from the general population of the prison was meted out to them because of their participation on the newspaper VIBRATIONS. Transfer to another prison has been held not to be a violation of a prisoner's constitutional rights. Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972). Moreover, the Court finds that no inmate was transferred to another institution or segregated from the general population solely as a result of activities on VIBRATIONS. Such segregation of prisoners as took place at the time VIBRATIONS was shut down was a result of information received by Defendant Walters on Sunday, April 18, 1971, that the tag shop at the Institution was to be the scene of a serious inmate disturbance on Monday, April 19, 1971. The Court is satisfied that no action in the form of transfer or segregation from the general population was taken by defendants in order to punish any plaintiff for his participation on VIBRATIONS. This conclusion is founded on the fact than many inmates segregated from the general population on or near April 19, 1971, had absolutely no connection with VIBRATIONS, while several on the staff of that newspaper were neither segregated nor transferred in April, 1971. Accordingly, no basis exists to conclude that plaintiffs were punished for an expression of their views on VIBRATIONS.

 Plaintiffs contend that they were subjected to physical and verbal harassment and that conditions and treatment received by them and other prisoners in areas of administrative and punitive segregation constitute cruel and unusual punishment. Specifically, Plaintiff Harris asserts that he was subjected to administrative segregation on "A" Range pending an investigation, although he had violated no institutional rules or regulations.

 Any statement made here would be less than candid if it did not give recognition to the often deplorable conditions which prevail at the Pittsburgh Correctional Institution. But the Court is not prepared to determine that these conditions amount to cruel and unusual punishment; although deplorable, the conditions do not strike the conscience of the Court as being intolerable. Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965). Furthermore, there has been no demonstration of barbarous conduct which is revolting in the extreme. Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937 (3d Cir. 1969).

 The Court recognizes that the Eighth Amendment proscription against cruel and unusual punishment is founded on the basic goal of preserving "the dignity of man." Trop v. Dulles, 356 U.S. 86 at 100, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). Continuing, the Court in Trop indicated that the Amendment takes its meaning from "evolving standards of decency that mark the progress of a maturing society." Two additional tests have been set forth in Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966): (1) is the punishment greatly disproportionate to the offense for which it is imposed; (2) does the punishment go beyond what is necessary to achieve a legitimate penal goal. See also Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910).

 A review of the conditions as they exist at the State Correctional Institution at Pittsburgh convinces the Court that under none of the above tests have any plaintiffs been subjected to cruel and unusual punishment, nor has there been any physical and verbal harassment.

 Areas of segregation within the State Correctional Institution at Pittsburgh consist of "A" Range, "J" Range, and the Behavior Adjustment Unit. Inmates are housed in "A" Range for protective and punitive administrative segregation and are reviewed weekly by the Program Review Committee. Inmates are housed temporarily in the front half of "J" Range upon their initial arrival at the Institution. The back half of "J" Range is used as transitional housing for inmates who have been in administrative segregation prior to their return to the general population.

 The Behavior Adjustment Unit is reserved for inmates who display or have exhibited a pattern of abnormal and dangerous behavior within the Institution.

 The Behavior Adjustment Unit is divided into four Ranges: "U", "V", "W", and "X" with the latter being reserved for the most difficult behavioral problems. Needless to say, conditions are restrictive in the areas of segregation. However, the cells are generally clean and free of rodents and insects. With the exception of "X" Range, inmates in the Behavior Adjustment Unit are permitted television and radio, and although limited, inmates of the Behavior Adjustment Unit do have visiting privileges, and opportunity for exercise, showers and use of library facilities.

 More significantly, there are rehabilitative and educational programs available for inmates at the State Correctional Institution at Pittsburgh. Training in various vocations is available such as bricklaying, auto mechanics, welding and barbering. In addition, high school and college credits may be earned through courses at the Institution as was true for Plaintiff Harris who without paying tuition received ninety college credits from the University of Pittsburgh. Daily medical and psychiatric services are available to the inmates. Finally, it should be noted that the use by officers of the Institution of firearms, nightsticks, and chemical mace is severely limited and restricted. Firearms are carried only by correction officers working on the towers and the Institution's rotunda; nightsticks and mace cannot be used unless authorization therefor is obtained from the Deputy Superintendent for Operations. Thus contrary to plaintiffs' assertions that macing and beating is not uncommon, the Court finds that such activity is restricted and limited to the necessary control of behavior or disciplinary problems. In view of the foregoing, the Court concludes that plaintiffs' claims of cruel and unusual punishment are unfounded.

 Of plaintiffs' substantive claims, there remains for disposition plaintiffs' assertion that they have been denied procedural due process as a result of being subjected to administrative segregation without a disciplinary hearing or any notice of the charges against them. On or about April 19, 1971, defendants caused certain inmates, including Plaintiff Moore, to be placed in segregation without a hearing. But as heretofore indicated, Defendants were acting on a reasonable belief that an emergency situation was developing, i.e., a possible serious disturbance in the prison tag shop. Under the circumstances defendants acted reasonably and did not violate plaintiffs' constitutional rights. Gray v. Creamer, supra. The Court must conclude that the information of an impending riotous situation warranted defendants in acting as they did in placing Plaintiff Moore in segregation without a hearing. Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir. 1973).

 The Court in Biagiarelli stated:

"We are not prepared to hold that the due process clause requires the prison authorities to provide "a prisoner with a statement of the evidence, which forms the basis for the removal of the prisoner from the general prison population. Even where the question is raised at the time of a criminal trial in the federal courts, the defendant generally is not entitled to have the prosecution furnish him with a detailed statement of the evidence the prosecution plans to use.
Biagiarelli was only entitled to either written notice of the basis for his removal from the prison population and an opportunity to rebut the charge, or a hearing. When the notice reasonably should have been given, or the hearing held, depended on when the threat to the institutions subsided, regardless of whether he was held in punitive or administrative segregation. It is not feasible for courts to adopt hard and fast rules that will apply to every institution, or to every situation that might arise within a particular institution. Emergency conditions may require prompt and decisive administrative actions, and what is reasonable must be measured against the urgency of the circumstance necessitating the action. See Arzonica, [ United States ex rel. Arzonica v. Scheipe, et al. 474 F.2d 720 (3d Cir. 1973)] supra. This rule of reason involves the weighing and balancing of conflicting interests referred to in Gittlemacker v. Prasse, supra, [428 F.2d] at p. 4. See United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1201 (3d Cir. 1973)."

 On the basis of Biagiarelli, it must be concluded that plaintiffs' rights to procedural due process have not been infringed. In any event, plaintiffs' claims in this regard are now moot since Administrative Directive 801 of the Bureau of Correction, included herein in Part B of the Appendix, became effective November 1, 1972, whereby all inmates charged with major misconduct are given a disciplinary hearing. Inmates so charged are given advance written notice of the hearing and are advised that they may be represented by another inmate or a staff member. While it is true that an inmate, one Richard Mayberry, was placed in the Behavior Adjustment Unit upon his arrival at the State Correctional Institution at Pittsburgh on July 5, 1973, the Court is satisfied that this was proper in view of his background as a most dangerous individual who had immediately prior to his arrival been confined in Fairview State Hospital for mental observation. Prior to that, Mayberry had been incarcerated in the Behavior Adjustment Unit of the State Correctional Institution at Dallas. His placement in the Behavior Adjustment Unit of the State Correctional Institution at Pittsburgh was consistent with institution policy whereby an inmate transferred from the Behavior Adjustment Unit of another institution is placed in Pittsburgh's Behavior Adjustment Unit, and then his status is periodically reviewed. Moreover, since Mayberry is not a plaintiff and the Court deems this case not to be a proper class action, violation of Mayberry's right, if such took place, is not before the Court.

 It is well to note in connection with this determination that the present proceeding should not be deemed a proper class action that every inmate presents a different problem due to various factors, including age, education, previous experiences and activities in life. Moreover, an inmate's background and training, his state of mind, general attitude, and his physical and mental capabilities all help to determine what treatment is necessary, proper, and required for him as an individual. In view of the foregoing, the Court must conclude that there has been no denial of plaintiffs' rights to procedural due process.

 The Court now turns to consideration of plaintiffs' motion for awarding counsel fees. The fees sought in this connection total $9,720 for 486 out-of-court hours and $3,450 for 115 in-court hours. Plaintiffs' attorneys contend that they have acted as "private attorneys general" and that by bringing this lawsuit they have furthered a significant national policy of prison reform. They assert that as a result of this lawsuit, prisoners' rights were expanded in the areas of due process hearings, censorship of books, publications, and mail. In addition, the newspaper VIBRATIONS, which was closed down when suit was instituted, was reestablished by consent order entered upon agreement of the parties. Plaintiffs' attorneys contend this was possible only through their efforts in representing plaintiffs.

 Although plaintiffs' attorneys are to be commended for rendering their services gratuitously, the Court cannot reasonably conclude that attorneys' fees should be imposed upon defendants. In the first instance, no such fees can be imposed on the state because of the state's sovereign immunity, which has not been waived by virtue of the state paying the costs of transcribing the record of this proceeding, or in any other way. Jordon v. Gilligan, 500 F.2d 701 (6th Cir., filed July 18, 1974). Moreover, suits filed pursuant to 42 U.S.C.A. § 1983 must be maintained against individuals and cannot be directed against a state. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). With respect to the re-establishment of VIBRATIONS, the Court takes note of the fact that this was accomplished only when plaintiffs acceded to defendants' demands that the newspaper be subject to a censorship review board.

 It is well to bear in mind that attorneys' fees are nor ordinarily taxable as costs and are awarded only in extraordinary cases. Bernstein v. Brenner, 320 F. Supp. 1080 (D.C.D.C. 1970). The Supreme Court has indicated exceptions to the general rule in Hall v. Cole, 412 U.S. 1, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973), where it is stated that counsel fees may be awarded "to a successful party when his opponent has acted 'in bad faith, vexatiously, wantonly, or for oppressive reasons '". In addition, attorneys' fees may be awarded where plaintiff's successful litigation confers substantial benefit on members of an ascertainable class and an award will effectively spread costs among the class benefited. See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968); and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593. In view of the conclusions reached in this case, the Court does not believe that there is a "successful plaintiff" in the sense referred to in Newman, supra. Moreover, although attorneys' fees were awarded in Commonwealth of Pa. v. Charleroi School District, 63 F.R.D. 440 (W.D. Pa. 1973), a § 1983 case involving school hair length regulations, the Court does not view this as setting a precedent for all § 1983 cases. In the Charleroi School District case, the question of the right of a school district to regulate hair length had already been clearly and unequivocally decided, *fn1" and there is no question that, although no finding of bad faith was made in the Charleroi case, the Charleroi School District was knowingly acting outside the law. Such a conclusion is not warranted with respect to defendants in the present proceeding.

 Certainly the award of attorneys' fees is an encouragement to the bringing of suit and the vindicating of rights which might otherwise not be accomplished. However, the Court takes judicial notice of the virtual flood of prisoners' § 1983 complaints. Little if any encouragement is needed by way of awarding attorneys' fees in a case such as this matter before the Court. In view of the foregoing, plaintiffs' motion for attorneys' fees should be denied.

 Findings of fact and conclusions of law have not been separately stated but are included in the body of the foregoing opinion as specifically authorized by Rule 52(a) of the Federal Rules of Civil Procedure.

 An appropriate Order is entered.


 BC-ADM-814 Administrative Directive




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