Motion are true, and after a careful review of the record and the law, this Court is of the opinion that a genuine issue of fact is presented by the affidavits. Accordingly, summary judgment must be denied on Points (A), (B) and (C), and plaintiff will be given an opportunity to present evidence regarding his commitment in solitary confinement.
After his arrest, following his participation in an attempted escape from prison on December 26, 1976, plaintiff was placed in solitary confinement at Northampton County Prison for 32 days. At no time during this period of solitary confinement was plaintiff given a disciplinary hearing despite requests by plaintiff for such a hearing on at least two occasions.
Plaintiff further alleges that during this 32-day period of solitary confinement, all of his incoming mail was withheld by the defendant prison officials; that he was denied the right to communicate with his family despite requests to do so on many occasions; that he was informed that he would not be permitted visits while in solitary confinement and, in fact, on January 7, 1976, his girlfriend was not permitted to see him; and, finally, that, despite many requests, he was not permitted to shower.
On January 3, 1976, plaintiff alleges that he attempted to send "legal mail to the courts" but was denied the use of writing materials. Despite more than one request to a number of prison officers, plaintiff further alleges that he was allowed to write to his attorney only after 27 days of solitary confinement. In fact, on December 27, 1975, plaintiff specifically alleges that he requested but was denied permission to write to his attorney.
In response to plaintiff's allegations, the defendants assert that plaintiff was placed in solitary confinement only as a consequence of his attempted escape from the prison and assault on a prison guard -- plaintiff was placed in this protective custody for security reasons and in view of the clear and present danger that plaintiff presented to prison officials.
In their affidavits, defendants state that plaintiff was treated in accordance with established prison policy -- writing materials are provided upon request; incoming mail is delivered to each prisoner; visitors are permitted to see all prisoners, including those in solitary confinement; and opportunities for showers are provided three times a week. Defendants do admit that plaintiff's visitation privileges were temporarily removed from December 26, 1975 to December 28, 1975, immediately following the attempted prison escape. However, they allege in their affidavit that these privileges were restored by December 29, 1975.
Finally, defendants allege that at least on one occasion during this period, the shift report for December 30, 1975 indicates that plaintiff refused to take a shower.
Furthermore, defendants deny, in their affidavit, that plaintiff was treated in a manner in contravention of the general prison policy regarding access to his attorney or to the courts. Writing materials are provided upon request for any purpose. It is also noted on the December 30, 1975 shift report that plaintiff was permitted to, and did, call his attorney.
The allegations presented in all of the pleadings of all of the parties demonstrate that there are many factual disputes regarding the general areas discussed above ((A) to (C)). This Court cannot resolve those factual disputes based on the record established to date.
Prison officials must be afforded a certain amount of discretion and latitude in safeguarding prisoners committed to their custody. "Even those rights which survive penal confinement may be diluted by peculiar institutional requirements of discipline, safety, and security." Gittlemacker v. Prasse, supra at 4. The task of striking the proper balance between the rights of the inmates while in prison and the practical necessities of prison discipline and security must, in the first instance, lie with the responsible state prison officials. Accordingly, federal courts have been reluctant to interfere with the exercise of state prison administration absent exceptional circumstances or the denial of a federal right.
It is, therefore, well established that solitary confinement is not per se cruel and unusual. Newsome v. Sielaff, 375 F. Supp. 1189 (E.D. Pa. 1974). Maximum security confinement must be permitted where, in the judgment of the prison authorities, such confinement is necessary for the protection of the general prison population, for the prison personnel, or for the prisoner himself. In their affidavits, defendants claim that their actions in this case, in placing plaintiff in solitary confinement without notice or hearing, were solely in response to the plaintiff's attempted escape and assault on a prison guard.
Whenever possible, some type of notice of the charges and/or hearing should be given to the prisoner before his transfer from the general prison population to solitary confinement in order to meet minimal due process requirements.
A similar situation was presented in Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir. 1973). In that case, plaintiff was taken from his cell on October 19, 1971, without any notice or hearing, and placed in solitary confinement until December 24, 1971, a little over two months later. The prison authorities justified this transfer on the basis that they had received information that the plaintiff was conspiring to escape from prison, i.e., an emergency situation existed requiring prompt action on their part. Although the district court entered declaratory judgment for the plaintiff, the Court of Appeals vacated that order because of the circumstances of the case. The Court of Appeals pointed out that:
This case presents an example of the "unusual circumstances" referred to in Gray. Here the prison authorities, in order to maintain control and to insure the continued security of the institution, were entitled to postpone notice of the charges, or the holding of a hearing for a reasonable period of time. . . . This was not the ordinary case of a prisoner being placed in administrative or punitive segregation for disciplinary purposes, but the case of a prisoner alleged to have been involved in a conspiracy to escape from prison. Id. at 511-12 (footnotes omitted).
Because of the unusual circumstances presented by the plaintiff's conspiracy to escape, the Court of Appeals would not apply a per se rule that placement of a prisoner in solitary confinement without notice and hearing constitutes a constitutional deprivation. Hard and fast rules applicable to every institution and in every situation that might arise could not be adopted. Instead,
[when] the notice reasonably should have been given, or the hearing held, depended on when the threat to the institution subsided, regardless of whether he was held in punitive or administrative segregation. . . . Emergency conditions may require prompt and decisive administrative actions, and what is reasonable must be measured against the urgency of the circumstance necessitating the action. Id. at 512.