The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
Plaintiff in this civil rights case
is a state prisoner serving a 21 to 42 year sentence for second degree murder, aggravated robbery and conspiracy. Originally confined in 1967 at the State Correctional Institution at Graterford, plaintiff was demotionally transferred approximately sixteen months later to the State Correctional Institution at Pittsburgh. On January 21, 1970, plaintiff was retransferred from Pittsburgh to Graterford to accommodate a Philadelphia court appearance and remained at Graterford until July. The gravamen of his complaint is that, in being relegated to administrative segregation status for the entire five and one half month period spent at Graterford while awaiting court proceedings in Philadelphia, he was deprived of liberty without due process and denied equal protection of the law.
Plaintiff filed this action pro se on June 11, 1970, and the case was assigned to our late colleague Judge Ralph C. Body. Judge Body appointed law student counsel for plaintiff pursuant to Local Civil Rule 9 1/2 in February 1972. Thereafter, defendants moved for summary judgment; the motion was granted on August 16, 1972.
Plaintiff appealed, and, in an unpublished per curiam opinion filed on March 26, 1974, the Court of Appeals held that Judge Body erred in granting summary judgment on plaintiff's equal protection and due process claims and remanded the case for further proceedings consistent with its opinion.
The Court of Appeals also: (1) upheld Judge Body's disposition of plaintiff's eighth amendment claim; (2) suggested that on remand the due process claim be considered in the light of several of its intervening opinions regarding the due process rights of prisoners subjected to special disciplinary treatment;
and (3) noted that should plaintiff prevail on the merits, his relief must be limited to damages. Plaintiff was no longer at Graterford, and the regulations governing administrative segregation of prisoners had been changed to incorporate the procedural safeguards required by the Third Circuit decisions cited at note 4, supra.
Plaintiff's due process claim is substantive and not procedural; the specific due process requirements announced by the Court of Appeals after the events in question and subsequently implemented are not retroactive. See Wolff v. McDonnell, 418 U.S. 539, 573-74, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). However, plaintiff contends that fundamental notions of substantive due process require that segregative confinement be based on some actual infraction of prison rules or a showing of present danger, even if it was not necessary to accord him any particular form of hearing on the reason for the confinement.
After receiving the record upon remand, we conducted a hearing. In addition to receiving the plaintiff's testimony, we admitted several uncontroverted affidavits and all the available relevant records of the institutions at which plaintiff had been confined. Following the receipt of briefs and requests for findings, we requested further clarification of the defendants' immunity claim. The Deputy Attorney General submitted an affidavit from defendant Wolfe, but that affidavit was immediately controverted in a letter from plaintiff's counsel.
We thereupon summoned counsel to a further conference, as the result of which we ordered a further hearing at such time as Mr. Wolfe, now retired from the Pennsylvania correctional system and living in West Virginia, could be available. On July 14, 1975, that further hearing was held. Briefs were submitted in the wake of the hearing, making the matter at long last ripe for disposition.
Plaintiff concedes that he has not adduced sufficient evidence to support a verdict for damages against defendants Prasse and Rundle;
i.e., he has failed to demonstrate their acquiescence in, knowledge of, or accountability for plaintiff's confinement to administrative segregation. Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). Accordingly, judgment must be rendered in their favor. See Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). As to defendant Wolfe, however, plaintiff continues to assert liability, alleging that he has proved the necessary degree of involvement in deprivations of plaintiff's constitutional rights. Wolfe denies sufficient involvement to support liability, avers that plaintiff has failed to establish his equal protection and/or due process claims, and also claims immunity from suit for damages under the Civil Rights Act. For the reasons which follow, judgment must be entered for defendant Wolfe as well. This opinion constitutes our findings of fact and conclusions of law under Fed.R.Civ.P. 52(a).
The State Correctional Institution at Graterford principally houses inmates who have been assigned to that institution for the duration of their terms of sentence. During the periods at issue here, Graterford also served to confine temporarily inmates (called "transferees") from institutions throughout the Commonwealth, when they were required to appear in litigation in or near Philadelphia. Due to their transiency and the diverse nature of their respective backgrounds, administrative problems arose regarding the mobility and privileges which transferees were to be accorded during their interim stays at Graterford. Accordingly, immediately upon receipt of the transferees from other institutions throughout the Commonwealth, they were placed in Cell Block "B" and were segregated from members of the general Graterford population. Inmates in "B" Block administrative segregation were accorded lesser privileges than the general prison population.
Plaintiff's original incarceration following imposition of sentence was at Graterford, from September 25, 1967, until February 5, 1969. During his first nine months at Graterford, plaintiff's prison record showed no misconduct. However, commencing in June 1968, plaintiff committed a series of institutional infractions which led to his demotional transfer on February 5, 1969, from Graterford to the State Correctional Institution at Pittsburgh. This course of misconduct is important to this case and must be summarized.
On June 19, 1968, plaintiff was placed in punitive segregation for fifteen days for forgery and attempted larceny of another inmate's money. The reporting officer was the defendant in this case, Deputy Superintendent C. R. Wolfe. On July 12, 1968, less than a week after completing this punishment, plaintiff was again placed in punitive segregation for "insolence" and refusal to work. During his confinement in punitive segregation from July 12, 1968, until August 8, 1968, plaintiff accumulated an additional fifty-five reports of misconduct for refusing to obey prison regulations and stand for count. Upon completing this punishment on August 8, 1968, plaintiff was released back into the general prison population and apparently had no further trouble with prison authorities for six months, until January 9, 1969. On that date, he was assigned to the punitive segregation block again, this time for being part of a conspiracy with other inmates in refusing to do their assigned work.
During plaintiff's segregation between January 9, 1969, and January 20, 1969, he incurred an additional five misconduct reports for insolence and disrespect and refusing to obey institution regulations.
While this record of multiple misconduct during plaintiff's earlier incarceration at Graterford is heavily relied upon by the Deputy Attorney General in his justification of the retention of plaintiff in administrative segregation while a transferee at Graterford during 1970 (indeed he asserts that it is a conclusive justification), plaintiff relies upon the report of one particular incident during this stay in punitive segregation to support his claim of a personal animus toward him on the part of defendant Wolfe. On that occasion, January 16, 1969, plaintiff observed defendant Wolfe and other institution personnel attempting to remove another inmate from a nearby cell. Plaintiff testified that he objected to the use of chemical Mace on this inmate, and to the number of guards involved. The same day Wolfe cited plaintiff for "[continuing] to make uncomplimentary remarks concerning methods used" to move inmates from one location to another. Wolfe alleged in his report that "[these] remarks were directed at myself and other officers present." As a result, plaintiff was sentenced to an additional thirty days in maximum security with no exercise.
Plaintiff never completed this thirty day sentence at Graterford, for on February 5, 1969, he was demotionally transferred to the State Correctional Institute at Pittsburgh.
Plaintiff remained at Pittsburgh for almost a year. During this period he committed no reported infractions of institution rules, held a steady job and participated in a rehabilitative program. On January 21, 1970, plaintiff was transferred from Pittsburgh back to Graterford to facilitate pending court appearances in Philadelphia. Upon his arrival at Graterford, plaintiff was assigned to "B" Block in accordance with institution policy regarding the placement of transferees. On January 26, 1970, he was interviewed by members of the Graterford Administrative Staff. One of the members of that staff, Director of Treatment Walter F. Bruckno, advised ...