Court to hold otherwise would be to create a standard under which an alleged aggressor would be entitled to a hearing before he could be placed in segregated status but an alleged victim could be placed in unlimited solitary confinement without any hearing at all.
Of course such a hearing need not be held immediately following an altercation, assuming that such an altercation rises to the level of "unusual circumstances". Biagiarelli v. Sielaff, 483 F.2d 508 (3rd Cir. 1973); Gray v. Creamer, 465 F.2d 179 (3rd Cir. 1972). But where there has been sufficient time to gather information as to the identity of attackers and victims, then it is a violation of due process to continue that prisoner in isolation without a hearing establishing a rational basis for the belief that he was either an attacker or a victim of a violent outbreak.
In the present case plaintiff pled guilty to assault with a deadly weapon during the altercation. But this plea came a month after the altercation, a month during which plaintiff was segregated and denied any hearing on the matter. Had a hearing been held promptly to determine who was an aggressor and who a victim, and had plaintiff pled similarly at that time, his continued segregation would not have contravened due process.
Defendant invokes the State Police investigation which followed the November 2, 1972 incident as an excuse for delaying the hearing into whether plaintiff attacked his fellow inmates. The pendency of a State Police investigation should not, under normal circumstances, prevent an early hearing. The purpose of such a hearing is to establish probable cause, not to convict.
It seems unfair that a prisoner should be placed in solitary confinement merely because he was the victim of an attack. But for this Court to say that the policy the Superintendent followed was ill-founded, or to burden the implementation of this policy by requiring a hearing into the dangers of releasing a prisoner back to the general population, would be to upset the balance which the Gray Court declared must be struck between protecting an inmate's constitutional rights and not interfering with the practical necessities of administrating a prison. The task of identifying those situations which may give rise to violence is more competently performed by prison officials than by judges.
It is our opinion that the proper test of immunity for an official such as defendant is whether reasonable grounds existed at the time of his allegedly unconstitutional acts for believing that those acts were constitutional and whether he held such a belief in good faith. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90, 42 U.S.L.W. 4543, 4548 (1974). The scope of an official's discretion is a factor to be taken into consideration in determining reasonability and good faith. Where, as here, it has been factually established that there were reasonable grounds for believing his actions constitutional and that his belief was in good faith, the official is immune from suit under 42 U.S.C. § 1983. Scheuer v. Rhodes, supra, at 4548.
The Third Circuit has postulated what seems to be a different standard for determining an official's immunity than the one established in Scheuer. Fidtler v. Rundle, 497 F.2d 794 (1974). In Fidtler the Court drew a distinction between officials exercising discretionary and those exercising ministerial functions. Once it has been factually determined by the District Court that a defendant official was acting within his discretion when he committed the allegedly unconstitutional acts, the immunity of that official is complete. 497 F.2d at 800. Even if an official was merely following a clear directive when he acted, however, he would be immune from § 1983 liability for his acts if he acted in the good faith belief that they were constitutional.
The result in this case is the same whether the Scheuer test or the Fidtler test is employed. In segregating plaintiff Superintendent Johnson was acting pursuant to clear and specific policy, even if it was one which he had himself established. At trial Johnson declared that the policy required Lewis' segregation and that he would have treated any other prisoner in the same situation similarly. Our finding of good faith belief, however, immunizes Johnson in the performance of what was in effect, a ministerial act.
AND NOW, to wit, this 28th day of September, 1974, after a trial upon the merits and the briefs of counsel, a judgment is hereby entered in favor of defendant and against plaintiff in the above captioned matter.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.