argued: February 5, 1976; As Amended June 21, 1976.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-939)
Seitz, Chief Judge, and Van Dusen and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
The Warden of the State Correctional Institution at Graterford (Warden)*fn1 appeals from a judgment of $500.00 in favor of Tyrrell, an untried prisoner, who also appeals. While awaiting trial, the prisoner was confined in the above penal institution in administrative segregation from February 10, 1970, until October 20, 1970. We affirm, but direct a reduction of the nominal damages awarded.
The action is based on 42 U.S.C. § 1983*fn2 and the early procedural history of this case is set forth in Judge Biggs' opinion in United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir. 1973), where we remanded the case for further consideration on a more adequate record.
On January 20, 1970, Tyrrell was lawfully incarcerated in the Delaware County prison awaiting trial on a series of charges, including robbery and the shooting of a police officer (38a). On that date, the plaintiff was seen by William E. Rambo and Samuel LaSpena, two guards at the Delaware County prison, leaving the cell assigned to Raymond Crispt. Rambo and LaSpena observed the plaintiff covered with dust and white powder (38a). Upon investigation, the guards discovered a hole in Crispt's cell, and reported the incident to the Warden (39a).
On January 28, 1970, Warden John I. Gable, of the Delaware County prison, swore to a criminal complaint charging that the plaintiff had attempted to break prison and escape (39a, 305a-06a). On that same day, the criminal complaint, charging the plaintiff with attempting to break prison and escape, and an arrest warrant were issued by Clarence B. Nesbitt, Jr., Justice of the Peace (39a, 205a, 207a).
The following day, January 29, 1970, plaintiff was given a preliminary arraignment on the charge of attempting to break prison and escape (39a). On February 3, 1970, plaintiff was given a preliminary hearing before Justice of the Peace Clarence B. Nesbitt, Jr. on the above charges (39a). At this hearing on February 3, 1970, the plaintiff was represented by counsel, and had the opportunity to cross-examine the witnesses who testified against him. Among those witnesses who testified against the plaintiff were Guards Monyar, Joines, Samuel LaSpena, and Warden John I. Gable (129a, 209a). A prima facie case of attempting to break prison and escape was established against Tyrrell and he was held, without bail, for action by the Delaware County Grand Jury (129a, 209a).
On Friday, February 10, 1970, the plaintiff was transferred to the State Correctional Institution at Graterford and placed in administrative segregation (39a). At that time, he was an untried prisoner. On Monday, February 13, 1970, the plaintiff was interviewed by the Behavior Clinic at the State Correctional Institution at Graterford (40a). During the course of that interview, the plaintiff was advised that he was being retained in administrative segregation because of his status as an alleged security risk (40a, 212a). The plaintiff was advised that the prison officials were aware of the charges being brought against him by the Delaware County officials and asked the plaintiff to make a statement. Plaintiff denied that he was attempting to break prison and escape, and reiterated his previous story that he had gone into Raymond Crispt's cell in order to get a cigarette (195-96a, 198a).
The Behavior Clinic recommended, and Rundle approved, plaintiff's retention in administrative segregation at the State Correctional Institution at Graterford (72a, 212a). This decision was based on the facts adduced at the hearing of February 13, 1970 (195-98a, 212a). During the period of plaintiff's confinement in administrative segregation at the State Correctional Institution at Graterford, he spent a total of 70 days at the Delaware County prison, where he was transferred incident to court hearings.
The plaintiff was interviewed on three other occasions by the staff at the State Correctional Institution at Graterford after his initial interview of February 13, 1970. On August 13, 1970, and September 10, 1970, the plaintiff was given the opportunity to speak, but on both occasions declined such opportunity and refused to say anything (193-98a, 40a). On October 20, 1970, the plaintiff was again interviewed and released into the general population at the State Correctional Institution at Graterford, and assigned to Cell Block "C," with employment as a cleaner (40a). This release was apparently due to his status as a convicted prisoner following his conviction on October 9, 1970, of the charges of robbery and the shooting of a policeman. On February 9, 1971, plaintiff was acquitted of the charge of attempted escape (40a).
Initially we turn to the issues raised in the appeal of defendant Rundle.
I. FINDING THAT PLAINTIFF WAS PLACED AND RETAINED IN ADMINISTRATIVE SEGREGATION UNTIL OCTOBER 20, 1970, SOLELY BECAUSE OF HIS STATUS AS ...