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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."

 8. On or about October 9, 1970, plaintiff was convicted in Delaware County of the original charges of robbery and the shooting of a policeman. On his return to Graterford he was immediately interviewed by the Behavior Clinic on October 20, 1970, and the next day placed in C-Block in the general prison population because he was now a convicted but unsentenced prisoner. (defendants' exhibit 5).

 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 administrative segregation because he was a pretrial detainee. He offers as evidence the following portion of the answer to the complaint filed by defendant Alfred T. Rundle, Superintendent of Graterford in 1970:


The defendants deny that the plaintiff was placed in punitive segregation upon his receipt at the State Correctional Institution at Graterford. On the contrary, the defendants aver that the plaintiff was placed in administrative segregation because of his status as an untried and unconvicted prisoner.

 This portion of defendant's answer was read into the record at trial and admitted without objection. Plaintiff also relies on the following stipulations of fact admitted into the record at trial:


As of February 10, 1970, the policy of Superintendent Rundle of the State Correctional Institution at Graterford was to place pretrial detainees in administrative segregation. (Plaintiff's exhibit 2, #1)


* * * *


Superintendent Rundle had personal knowledge of, and approved of, plaintiff's confinement in administrative segregation. (Plaintiff's exhibit 2, #4)

 Plaintiff further offers as evidence the testimony of his three trial witnesses that they understood that they were placed in administrative segregation because of their status as pretrial detainees. Finally, plaintiff points out that he was immediately placed in the general prison population on his return from Delaware County after his robbery conviction. On the basis of this evidence, we find that plaintiff has carried his evidentiary burden, and we resolve this factual dispute in his favor. *fn12"

  11. Viewed as a whole, the living conditions of pretrial detainees in "B-Block Gallery, Administrative Segregation," to which plaintiff was subject while he was there, were significantly more restricted and inconvenient than the living conditions of the general prison population. Prisoners confined on B-Gallery had scantier bedding and clothing than prisoners in the general population. The temperature during the colder months in B-Gallery, although not excessively low, was lower than the temperature in other parts of the prison and living on B-Gallery was to that extent more uncomfortable. Unlike prisoners in the general population, plaintiff could not attend religious services although a priest could visit him in his cell. Unlike prisoners in the general population, while in administrative segregation, plaintiff could not send registered or certified mail, and, although he could have documents notarized, they were not notarized in his presence. Unlike prisoners in the general population, plaintiff did not have access to legal materials. Unlike prisoners in the general population, plaintiff did not have general commissary privileges nor did he have access to the prison library, television, or movies. If he requested them prison officials would bring to his cell four randomly-selected books from the prison library. Medical care in administrative segregation was apparently more cursory than in other parts of the prison; plaintiff, for example, was unable to get filled a prescription for eyeglasses. While in administrative segregation, plaintiff was allowed only very short, daily exercise periods out of his cell in a small enclosure lacking any recreational facilities. Inmates in the general population could exercise much more frequently in a larger area equipped with sports and recreational facilities. Showers were available twice a week in administrative segregation as opposed to daily in the general prison area and materials offered to prisoners to clean their cells were fewer in administrative segregation than in the general prison areas. The heads of pretrial detainees on B-Gallery were shaved close. This was not done to prisoners in the general population. Finally, opportunity to work, attend school, or take vocational training, available to the general population, was denied to pretrial trainees.


 A. Claim of Conspiracy Against All Defendants.

 Plaintiff claims a conspiracy among all defendants to harass and punish him apparently because plaintiff was accused of shooting a police officer. Except for the Commonwealth defendants' inability to produce two records, however, the record is simply devoid of any evidence, circumstantial or otherwise, of such a conspiracy. *fn13" No testimony at trial or documents admitted into the record suggest any bond among all defendants, except for their government employment, and certainly no evidence suggests any agreement, unity of purpose, or common design among them. *fn14"

  B. Claim Against Defendants Rambo and LaSpina.

 The evidence against defendants Rambo and LaSpina, the guards at Delaware County Prison who reported plaintiff's presence in the cell with the hole in its wall, is not much more substantial than the evidence of conspiracy against all defendants. Beyond plaintiff's allegations at trial that defendants changed their testimony from the arraignment to the actual trial for attempted escape, *fn15" plaintiff offers no other evidence bearing directly on defendants' conduct. Unfortunately, part of the record of the arraignment is missing and the Commonwealth cannot produce the record of plaintiff's trial for attempted escape. Although these disappearances may seem suspect, they are not enough alone or on this record to find defendants liable to plaintiff either individually or in combination. We conclude as a matter of law that plaintiff has not carried his evidentiary burden against defendants.

 Accordingly, we enter judgment for defendants Rambo and LaSpina and against plaintiff.

 C. Claims Against Defendant Gable Individually and Against Defendants Gable and Taylor in Combination.

 Plaintiff's claim against defendant Gable individually is that defendant, as Warden of Delaware County Prison, acted arbitrarily and maliciously in petitioning for his transfer to Graterford as a security risk. Plaintiff does not dispute the constitutionality of transferring a prisoner from one institution to another as a security risk; he contests the constitutionality of so doing without any justifiable reason to believe that the prisoner actually is a security risk. Plaintiff offers no evidence supporting a conclusion that defendant Gable acted arbitrarily, however. In fact, plaintiff admits that prior to his transfer he had a preliminary hearing before a judicial officer on the charge of attempted escape. Plaintiff was represented by counsel at this hearing at which defendants Gable, Rambo, and LaSpina testified. At the conclusion of the hearing, Judge Nesbitt found probable cause to hold plaintiff for trial, and the next day defendant Gable petitioned for plaintiff's transfer. Under Pa.R.Crim.P. 141(d), if the Commonwealth does not establish a prima facie case against an accused at a preliminary hearing and no reasonable grounds exist for continuance, he must be discharged. Moreover, under Pa.R.Crim.P. 141(c), at the hearing the accused has the right to counsel, to cross-examine witnesses, to present evidence, and to compel witnesses to appear and testify in his behalf. In the absence of evidence of prejudice or a "frame-up" by prison authorities, we cannot imagine a more rational and constitutional procedure for defendant Gable's determining to transfer plaintiff to Graterford as a security risk. *fn16"

  Plaintiff also contests the state procedure by which he was transferred to Graterford. Plaintiff claims that under 61 P.S. § 72, the Delaware County Board of Prison Inspectors and not Warden Gable had to apply for plaintiff's transfer. *fn17" Since defendant Gable petitioned for the transfer and defendant Taylor approved it, plaintiff argues, they acted beyond the scope of their authority in transferring him. Plaintiff next asserts that since his illegal transfer resulted in his being confined under unconstitutional conditions at Graterford, defendants Gable and Taylor are liable to him. We cannot accept this rather finely attenuated theory. First, even if defendants did not follow the correct procedure in transferring plaintiff, *fn18" a state procedural error, without more, does not subject plaintiff "to the deprivation of any rights, privileges, or immunities secured by the Constitution . . ." *fn19" Second, except under a "but for" theory of causation, which we reject, defendants are not responsible for what went on at Graterford after the transfer.

 Accordingly, judgment is entered for defendants Gable and Taylor and against plaintiff.

 D. Claim Against Defendant Zigler.20

 Plaintiff claims that defendant John Zigler, Warden of Delaware County Prison in 1971, injured him by transferring him back to Graterford after he was acquitted of attempted escape in February 1971. Plaintiff reasons that his acquittal invalidated the original order placing him in Graterford as a security risk and that defendant Zigler was, therefore, unauthorized to transfer him back to Graterford. We note that in February 1971 plaintiff had already been convicted of robbery and placed in the general prison population at Graterford. As with defendants Gable and Taylor, however, even if defendant Zigler made a procedural error under state law, and there is absolutely no evidence of this, such an error does not rise to a constitutional level.

 Accordingly, judgment is entered for defendant Zigler and against plaintiff.

 E. Claim Against Defendant Rundle.

 We have found that plaintiff was placed in "B-Block, Administrative Segregation" because he was an untried prisoner or pretrial detainee (Finding of Fact No. 10). We have further found that the living conditions of prisoners on B-Gallery, taken as a whole, were significantly more restricted than those of the general prison population (Finding of Fact No. 11). Given these findings, we will now examine the question of what constitutional theory, if any, can afford plaintiff a basis for relief.

 The possibility that placing pretrial detainees under more restricted and inconvenient conditions than other prisoners violates the detainees' constitutional rights is one which courts are entertaining with increasing frequency. *fn21" The courts which have found constitutional violations of the rights of pretrial detainees, however, have not always agreed on the specific constitutional basis for their decisions.

 Some courts have been urged to find that the "presumption of innocence" provides a constitutional foundation for the rights of pretrial detainees. In Blunt v. United States, *fn22" the District of Columbia Court of Appeals strongly rejected this urging. *fn23" The court did not reach the issue of the possible constitutional underpinnings of the presumption itself; instead it found:


The importance of this presumption stems from the fact that in early English law, the accused was required to present evidence to prove his innocence.


The presumption of innocence, however, has never been applied to situations other than the trial itself. To apply it to the pretrial bond situation would make any detention for inability to meet conditions of release unconstitutional.

 We agree with the court that the presumption of innocence is a highly unlikely standard for the constitutional rights of pretrial detainees.

 A much more likely constitutional theory on which to ground such civil rights is one based on the Eighth Amendment to the Constitution. *fn24" Although courts most frequently find "cruel and unusual punishment" when the prison conditions challenged are, on any scale, outrageous and barbaric, *fn25" in Howell v. Cataldi *fn26" the Court of Appeals for the Third Circuit cited with approval Jordan v. Fitzharris *fn27" and quoted from it the following language:


[A] punishment may be cruel and unusual when, although applied in pursuit of a legitimate penal aim, it goes beyond what is necessary to achieve that aim; that is, when a punishment is unnecessarily cruel in view of the purpose for which it is used.

 Moreover, in remanding this action to us the Court suggested that if length of restricted confinement is unrelated to the seriousness of the penal interest involved, this disproportion could violate the Eighth Amendment. *fn28"

 Applying the Eighth Amendment to pretrial detainees, however, presents conceptual problems. Pretrial detainees have, by definition, not been convicted of any crime. Therefore, they are not yet in a position to be punished at all. To label challenged conditions of pretrial detention as either barbaric or disproportionate punishment is to assume that some form of punishment is legitimate. *fn29" For this reason, we do not find the Eighth Amendment to be the appropriate source for the constitutional rights of pretrial detainees.

  Instead we believe that the source of a pretrial detainee's right not to be confined under conditions significantly more restricted than those of the general prison population is the due process clause of the Fourteenth Amendment. *fn30" We refer here to the constitutional guarantee of substantive due process, the right of the individual to be free from any arbitrary invasion by the State of his fundamental right to liberty. *fn31" The only legitimate state interest in the pretrial detention of an accused person who cannot raise bail is in guaranteeing his presence at trial. Given this legitimate interest, the State acts irrationally, arbitrarily, and constitutionally illogically when it imposes restrictions on the freedom of pretrial detainees significantly greater than those imposed on convicted prisoners. This kind of arbitrary state conduct violates substantive due process. *fn32"

 We hold, therefore, that since the living conditions of "B-Block Gallery, Administrative Segregation," to which plaintiff was assigned in 1970 as a pretrial detainee, were significantly more restricted than those of the convicted prisoners in the general prison population and since defendant Rundle knew and approved of plaintiff's placement, defendant deprived plaintiff of his rights under the Fourteenth Amendment to the Constitution. Our holding also resolves any remaining First and Eighth Amendment claims since we view the curtailing of religious exercise and the apparently cursory medical attention received as simply two among the number of restrictions visited on pretrial detainees at Graterford in 1970.

 Defendant Rundle in his answer to the complaint raises the affirmative defense of official immunity. He does not raise a separate defense of good faith in his answer although in the Commonwealth defendants' joint post-trial brief, they invoke a good faith defense citing Fidtler v. Rundle. *fn33" In Fidtler the Court of Appeals for the Third Circuit found that both defenses, immunity and good faith, were available to the superintendent of a state prison. Under Scheuer v. Rhodes, *fn34" Johnson v. Alldredge, *fn35" and Fidtler, however, the crucial requirement for establishing the defense of immunity or good faith is evidence on the record from which a court can determine whether or not the defense is available under a given set of circumstances. In Scheuer the Supreme Court emphasized that a defendant must offer evidence to support claims of immunity and good faith. Reversing and remanding the actions before it, the Court said:


In dismissing the complaints, the District Court and the Court of Appeals erroneously accepted as a fact the good faith of the Governor . . .. There was no evidence before the Courts from which such a finding of good faith could be properly made . . . . *fn36"

 The Third Circuit treats the defenses of immunity and good faith separately. It finds immunity the appropriate defense for an official performing a discretionary function and good faith the appropriate defense for an official performing a non-discretionary or ministerial function. Under Johnson v. Alldredge, to establish a defense of immunity, a defendant official must offer evidence, by affidavit or testimony, that the challenged action was discretionary and "within the outer perimeter of his authority." *fn37" In Johnson defendant offered his own uncontroverted affidavit and that of his immediate superior attesting to his discretionary authority. These the court found sufficient to establish immunity. *fn38" Defendant Rundle, however, has offered no evidence, testimonial or otherwise, in support of a defense of official immunity. We, therefore, reject his defense. Under Fidtler v. Rundle, as under Scheuer v. Rhodes, to establish a defense of good faith, a defendant official must offer some record evidence that he did, in fact, rely in good faith on a state statute, court order, or the state of the law in general. *fn39" Defendant Rundle neither alleged good faith in his answer to the complaint, nor did he offer any evidence by way of affidavit or testimony from which we could find good faith reliance on statute or law. Although Fidtler was decided about a week after trial was completed in this action, we feel no qualms in relying on it. In Safeguard Mutual Insurance Co. v. Miller, *fn40" the Third Circuit clearly anticipated both Scheuer and Fidtler in requiring a defendant to make a record in order to establish immunity or good faith. Scheuer itself was decided prior to trial. Further, in their post-trial brief, the Commonwealth defendants, among them defendant Rundle, cite Fidtler. Finally, all defendants objected, several months after trial, to our order requiring post-trial affidavits on the ground that we were "forcing defendants to put on evidence which counsel deemed inappropriate at time of trial."

 Having rejected defendant Rundle's defenses, we find that he is liable in damages to plaintiff. We find, however, that only nominal damages are appropriate here. *fn41" Although plaintiff alleged that malice motivated the conduct of all defendants, he offers no evidence to support his allegation against any defendant. Thus we find that defendant Rundle's conduct does not rise to a level at which punitive damages would be appropriate. Neither will we award actual damages. The only possible basis for actual damages in this action is the loss of wages plaintiff alleges because he was denied the opportunity to work while in pretrial detention. Although the Commonwealth defendants offer no evidence on the feasibility or non-feasibility of providing pretrial detainees the opportunity to work, we are unprepared, on this record, to grant damages to a pretrial detainee solely on the ground that he had no opportunity to work. In the best of all possible judicial systems, the system would function so efficiently that a prison might not have time to place a pretrial detainee into a work program. *fn42"

 Based on our findings of fact and conclusions of law, then, we now enter judgment on the complaint for plaintiff and against defendant Rundle. Defendant will pay plaintiff five hundred dollars in nominal damages.

 We are extremely grateful to Lewis Lieberman, the law student from the University of Pennsylvania Law School appointed to represent plaintiff. His thorough preparation for trial and excellent post-trial brief greatly aided us.

 Daniel H. Huyett / J.


 NOW, February 21, 1975, IT IS ORDERED that:

 Judgment is entered for defendants William Rambo, Samuel LaSpina, John Gable, Kenneth E. Taylor, and John Zigler and against plaintiff David Tyrrell.

 Judgment is entered for plaintiff David Tyrrell and against defendant Alfred T. Rundle in the sum of $500.00.

 Daniel H. Huyett / J.

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