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February 21, 1975

KENNETH TAYLOR, et al., Defendants

The opinion of the court was delivered by: HUYETT


 This action is before us on remand from the Court of Appeals for the Third Circuit. *fn1" Invoking 28 U.S.C. §§ 1331 and 1343(3) and 42 U.S.C. § 1983, plaintiff David Tyrrell seeks damages for deprivation of civil rights by state officials resulting from his 1970 transfer from Delaware County Prison to Graterford State Prison and from the conditions under which he was incarcerated for the first eight or nine months of his confinement at Graterford.


 Plaintiff's pro se complaint, not unusually, contained a series of imprecise claims and allegations of misconduct by state and prison officials. He has had two different Court-appointed student counsel during the pendency of this litigation, and his claims under this complaint have, with time, undergone something of a metamorphosis. Naming fifteen defendants, plaintiff's 1971 complaint alleged a conspiracy among all the defendants to deprive him of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. One infers from the complaint that plaintiff also claims against the defendants for their individual activities outside the context of the alleged conspiracy. A careful review of the complaint, however, reveals no allegations of misconduct cognizable under the Fourth, Fifth, or Sixth Amendments. *fn2" Moreover, defendants, like claims, have dwindled during the course of litigation. Defendants Speaker, Creamer, Prasse, and Sielaff were dismissed by the Appeals Court in January 1973. *fn3" Counsel for the parties stipulated to the dismissal of defendant Johnson. *fn4" By our Order of March 4, 1974, we dismissed institutional defendants Bureau of Corrections and Delaware County Prison under the theory of Moor v. County of Alameda. *fn5" Finally, although plaintiff originally sought both damages and injunctive relief, only his damage claim remains viable. Plaintiff has long since been released from the particular conditions of confinement at Graterford of which he complains, and his counsel informs us that he is presently at Dallas State Prison. Thus, any claim for injunctive relief based on the alleged illegality of either his specific or general *fn6" confinement at Graterford is moot.

 We proceeded to trial, then, on the question of whether or not the remaining defendants, either individually or in concert, are liable to plaintiff in damages for depriving him of his constitutional rights under the First, Eighth, or Fourteenth Amendments. Plaintiff's case consisted of two sets of stipulated facts (plaintiff's exhibits 1 and 2), a part of the answer to the complaint of defendant Rundle, read into the record, and the testimony of plaintiff Tyrrell and Frank J. Crutchley and Daniel Harvey, both of whom had been confined in Graterford in the same section of the prison and under the same conditions as plaintiff. The Commonwealth defendants' case consisted of nine copies of various state records relative to plaintiff's arrest on the charge of attempted escape and to his confinement at Graterford. The defense put on no witnesses and offered no depositions.


 We have spent the rather considerable time that has elapsed between the Third Circuit's remand of this action and this opinion attempting to compile a factual record upon which we would be satisfied to base a decision. The task has not been easy. *fn7" Neither the facts nor the issues are yet as sharply focused as we would wish, but we are satisfied that we have a complete enough record to dispose finally of this action.

 Based on this record, *fn8" then, we find the following facts.

 1. Plaintiff was arrested on December 20, 1969, and charged with a series of crimes including robbery and the shooting of a police officer.

 2. On January 22, 1970, while he was lawfully incarcerated in Delaware County Prison unable to furnish bail and awaiting trial on these charges, defendants William E. Rambo and Samuel LaSpina, guards at the prison, saw plaintiff leaving a cell assigned to another inmate. When they asked plaintiff what he was doing in the cell, he told them he went in to get a cigarette. Defendant guards then checked the cell and, behind a poster, found a hole in the wall. They reported this incident to defendant John Gable, then Warden of Delaware County Prison.

 3. On January 28, 1970, Warden Gable filed a criminal complaint (defendants' exhibit 1) against plaintiff charging him with attempting to break prison and escape.

 4. On January 29th a preliminary arraignment was held (defendants' exhibit 3) and on February 3, 1970, plaintiff and his counsel were present at a preliminary hearing before Justice of the Peace Clarence B. Nesbitt, Jr., at which defendants Gable, Rambo, and LaSpina testified. (defendants' exhibit 3). Unfortunately, we appear to have only part of the record of this preliminary hearing since the page we have ends in mid-sentence with the notation "(ove". The Commonwealth is unable to provide us with a complete copy. The result of these proceedings was a finding that probable cause existed to hold plaintiff for trial on the charge of attempted escape.

 5. On February 4, 1970, defendant Gable initiated a petition pursuant to 61 P.S. § 72 *fn9" to transfer plaintiff to Graterford as a security risk. Pursuant to 61 P.S. § 72 defendant Kenneth E. Taylor, Deputy Commissioner for the Bureau of Corrections, and the late Judge Sweeney, President Judge of the Delaware County Court of Common Pleas, approved the petition.

 6. On February 10, 1970, plaintiff was transferred to Graterford as ordered and, after an interview with the Behavior Clinic on February 13, 1970, was placed in that section of the prison designated "B Block Gallery, Administrative Segregation." *fn10" At the Behavior Clinic interview prison officials told plaintiff he had been transferred from Delaware County Prison as a security risk and permitted plaintiff to give his version of the events at Delaware County Prison.

 7. From February 13, 1970, to October 21, 1970, with some interruptions during which plaintiff was transferred back to Delaware County Prison for court proceedings, *fn11" plaintiff was confined in "B Block Gallery, Administrative Segregation."

 9. On February 9, 1971, plaintiff was acquitted of the charge of attempted escape. As with the missing part of the record of plaintiff's preliminary hearing on February 3, 1970, the Commonwealth has been unable to produce a copy of the record from the trial for attempted escape.

 10. Plaintiff was placed in "B-Block Gallery, Administrative Segregation" because he was a pretrial detainee or untried prisoner and not because he was determined to be a security risk at Graterford. This finding of fact is the crucial one in this action and the one most hotly disputed. The Commonwealth defendants contend that plaintiff was placed in administrative segregation because he was a security risk at Graterford. They offer as evidence a stipulation entered into by plaintiff's first student counsel that "[plaintiff] . . . was told [at the Behavior Clinic's interview of February 13, 1970] that he had been placed in administrative segregation because of his status as an alleged security risk" (plaintiff's exhibit 1, #12). Plaintiff contends that he was placed in ...

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