The opinion of the court was delivered by: GORBEY
The plaintiff instituted this action pursuant to the Civil Rights Act (42 U.S.C. § 1983) and the Criminal Conspiracy Act (18 U.S.C. § 241) in January, 1972, while an inmate at the State Correctional Institute at Graterford, Pennsylvania. In a pro se complaint, he alleges that he was denied a fair hearing in his attempt to be included in the Commonwealth treatment program, and in a subsequent disciplinary hearing. Defendants filed a timely answer in which five affirmative defenses were raised and now have filed affidavits and moved for summary judgment.
The procedures for screening, selecting and referring inmates to community treatment centers and for temporary home furloughs were required to be established by the Bureau of Correction pursuant to the Act of July 16, 1968, P.L. 351, as amended, 61 P.S. § 1053. "The Bureau of Correction shall establish rules and regulations for granting and administering release plans and shall determine those inmates who may participate in any plan." COMMONWEALTH ex rel. SAUNDERS v. CREAMER, 11 Pa. Cmwlth. 160, 312 A.2d 454, 457 (1973). The program is to be utilized as a diagnostic-treatment tool in an individualized program, thus requiring skilled discretion in selecting appropriate participants. Plaintiff alleges that, and in his affidavit states, at the hearing in which he was denied admission to the community treatment program, defendant Shaw, Sergeant of the Guards, was permitted to read false reports and make false statements which were accepted by the staff, including defendants Pace and Barrone, although known by them to be false. It is also alleged that plaintiff was not given the opportunity to object or to rebut such reports and statements. Reference by defendant Shaw was made continually to the contents of an alleged psychiatric report, a report which plaintiff requested to be permitted to examine but whose request was refused. Also, plaintiff alleges he had never been interviewed by a psychiatrist while at Graterford.
On or about November 3, 1971, a hearing was held before defendants Lightcap, Moser and Purcell to consider a misconduct report which arose from the circumstances of the first hearing, which were characterized as involving improper, insolent and disrespectful conduct by the plaintiff. In his affidavit plaintiff denies that he was given prior notice of the hearing and of the charges which were to be brought against him. He also denies the alleged improper conduct at the first hearing. No witnesses appeared against him, and he was not allowed to present any defense; plaintiff also denies in his affidavit that he pleaded guilty as indicated in defendants' "exhibit A", and he also states that most of the material found on page 2 of the defendants' exhibit A is false.
The consequence of the so-called hearing at which plaintiff had no opportunity to face his accusers or to present any defense, was a sentence of two weeks punitive segregation.
The manner in which the two hearings were alleged to have been conducted raises the important issue as to whether plaintiff has been denied procedural due process required by the Fourteenth Amendment.
Plaintiff has abandoned the claim for equitable relief and compensatory damages, but asks for punitive damages because of defendants' willful and malicious disregard of his constitutional rights.
In order to state a cognizable claim under the Civil Rights Act, complainant must allege specific conduct by state officials which violates some constitutional right. GITTLEMACKER v. PRASSE, 428 F.2d 1 (3d Cir. 1970); BROWN v. SIELAFF, 474 F.2d 826 (3d Cir. 1973). With respect to the first hearing at which plaintiff requested admission to the community treatment program, it is conceded that such admission is not a right guaranteed by the United States Constitution. Nevertheless, such a program has been created by the Commonwealth of Pennsylvania and "the Bureau of Corrections shall establish rules and regulations for granting and administering release plans and shall determine those inmates who may participate in any plan." COMMONWEALTH ex rel. SAUNDERS v. CREAMER, supra.
Thus, it would appear that an inmate's interest in such a state-created release plan is just as vital and significant as his interest in a state-created "good-time credit" for satisfactory behavior while in prison. Consequently, it seems logical to conclude and this court finds that such inmate's "interest has real substance and is sufficiently embraced within the Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." WOLFF v. McDONNELL, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, 42 U.S.L.W. 5190, 5196 (1974).
Prior case law and most certainly contemporary case law clearly establishes that due process is required if the consequences of an official's actions are sufficiently serious to amount to a "grievous loss". CAFETERIA AND RESTAURANT WORKERS UNION v. McELROY, 367 U.S. 886, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961); PALMIGIANO v. BAXTER, 487 F.2d 1280 (1st Cir. 1973). In the latter case it is stated:
"[in] a prison setting where liberty is by necessity shrunken to a small set of minor amenities such as work or schooling privileges, . . . it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss." Id. at page 1284.
Thus, it appears that the denial of the admittance of a qualified inmate to a community treatment program set up by the state would result in a grievous loss just as it would in the revocation of a parole or the denial of good-time credit. Accordingly, the conclusion is irresistible that in a hearing held before the staff of the community treatment program, the basic requirements of due process must be observed, and this very simply stated means that such a hearing when accorded an inmate must not be a mockery or a sham.
No longer is it appropriate to talk or write in terms of "right v. privilege" as respects those who are confined to correctional institutes or prisons. In a leading case, SOSTRE v. McGINNIS, the court wrote:
". . . the distinction between a 'right' and a 'privilege' . . . or between 'liberty' and a 'privilege' for that matter -- is nowhere more meaningless than behind prison walls. The difficult question, as always, is ...