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April 21, 1977


The opinion of the court was delivered by: FOGEL


 This prisoner's civil rights suit is before us alternatively, on cross-motions for summary judgment pursuant to F.R.Civ.P. 56, or for final judgment as a case stated under F.R.Civ.P. 52(a). *fn1" Plaintiff, Isiah Mack, contends that his constitutional rights were violated first by his confinement in punitive segregation without an adequate due process hearing, and thereafter by his transfer to another institution in which he was segregated from the general prison population without having been granted a hearing. He seeks, (1) a declaratory judgment which establishes that his rights were violated, (2) damages for the alleged unconstitutional confinement and (3) expungement of all references to the incident and punishment from his prison records.


 Plaintiff was an inmate of the State Correctional Institution at Huntingdon, Pennsylvania (Huntingdon) when this lawsuit was filed. Since commencement of the action, he has been released on parole, and his maximum release date has passed. However, since he is seeking monetary relief, the matter is not moot. Cf. Preiser v. Newkirk, 422 U.S. 395, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975).

 On August 18, 1973, plaintiff was engaged in an oral altercation with a guard at the State Correctional Institution at Graterford, Pennsylvania (Graterford), as a result of which a misconduct report was submitted to the Behavior Clinic committee at Graterford. *fn3" A disciplinary hearing was held on August 20, 1973, after which plaintiff was confined to punitive segregation for a period of thirty days. He was present at the hearing, but he claims that he was not given an adequate opportunity to explain his version of the incident to the hearing officers. *fn4"

 Plaintiff sought a review hearing, which was held on August 31, 1973. *fn5" He alleges that once again he was frustrated in his attempts to explain his story, and he also complains that he was not allowed to call any witnesses to the incident to testify on his behalf. No change in his status was made after this hearing.

 On September 19, 1973, the last day of the thirty day segregation period, defendant Robert Johnson, the Superintendent of Graterford, requested that plaintiff be transferred to Huntingdon. This was done immediately. Upon his arrival at Huntingdon, plaintiff was put into segregation. He was interviewed there on September 21, 1973, but, allegedly because his records had not yet arrived from Graterford, he was retained in administrative segregation until October 5, 1973, when he was released to the general population of the institution.

 Plaintiff now seeks a judgment declaring that his rights were violated (1) by the failure of the defendants to provide adequate due process guarantees at either of the two Graterford hearings, (2) by his subsequent transfer to Huntingdon without a hearing, or legitimate cause, and (3) by his continued segregation at Huntingdon, again without a hearing or sufficient cause. Plaintiff claims damages in the amount of $1,000.00 for his alleged unconstitutional confinement of forty-six days. He also requests that we order expungement of all references to the incident and ensuing punishment from his prison records, so that they cannot continue to adversely affect his parole and furlough possibilities; this ground is now moot because of his release, and the passage of his maximum release date. Preiser v. Newkirk, supra.6


 A. The Hearings at Graterford

 The defendants who were involved, either directly or indirectly (in a supervisory capacity), in the Graterford hearings are Walter Smith, Richard Parcell, Harry Godfried, Daniel Sims and Robert L. Johnson. Their contentions are as follows: First: that the hearings held on August 20 and 31, 1973, did not deprive plaintiff of any procedural due process guarantees, and Second : that they are immune from suit because they acted within the scope of their discretionary duties and power when they presided over the two hearings. We reject both of these contentions and therefore grant summary judgment for the plaintiff against the defendants, Walter Smith, Richard Parcell, Harry Godfried and Daniel Sims. Because there is no evidence before us that defendant, Robert Johnson, was actually present at the Graterford hearings, or knew of, or acquiesced in the procedures adopted at those hearings, we will not enter judgment against him on this issue. Rende v. Rizzo, 418 F. Supp. 96 (E.D.Pa. 1976); Ammlung v. City of Chester, 355 F. Supp. 1300 (E.D.Pa. 1973), aff'd, 494 F.2d 811 (3d Cir. 1974). See also, Fisher v. Volz, 496 F.2d 333, 349 (3d Cir. 1974).

 1. The Adequacy of the Hearings

 Plaintiff claims that he was denied a constitutionally adequate disciplinary hearing at Graterford on the following grounds: FIRST, he was not permitted to complete his answers to the questions addressed to him at both the August 20, 1973 hearing and the August 31, 1973 hearing; SECOND, he was cut off before he could give his version of events at both hearings; and THIRD, he was not allowed to present witnesses in his behalf at the second hearing. *fn7" We are not concerned, in this action, with the merits of the charges lodged against plaintiff. Rather, we must determine whether he was afforded a hearing that satisfies the minimum constitutional standards which were required to be met.

 The Supreme Court has specifically addressed the question of procedural due process guarantees in the prison discipline context twice within the past three years. *fn8" In Wolff v. McDonnell, the Court carefully analyzed the countervailing factors requiring consideration in examining prison disciplinary procedures, noting that

a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.

 Wolff, supra, 418 U.S. at 555-56. On the other hand,

the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. [citations omitted] Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.

 Id., at 556.

 In light of these considerations the Court refused to establish rigid and extensive due process requirements for prison disciplinary hearings, but did establish certain minimal standards. These include (1) written advance notice of the charges; (2) a written statement by the factfinders as to the evidence upon which they relied and the reasons for the disciplinary action, id., at 563; (3) the right to present documentary evidence and (4) the right to call witnesses as long as their presence would not cause undue hazards to institutional safety or correctional goals. Id., at 566. The Court specifically refused, however, to give Wolff retroactive effect. Id., at 573-74. Thus the holding in Wolff does not govern the litigation before us. *fn9"

 In Baxter v. Palmigiano, 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976) the Supreme Court attempted to clarify its holding in Wolff. Specifically, the Court noted that (1) inmates did not have a constitutional right to have counsel, whether privately retained or publicly appointed, in prison disciplinary proceedings, even when the charges involved criminal conduct; (2) the Fifth Amendment privilege against self incrimination did not forbid drawing adverse inferences from the failure of the inmate to testify at his hearing; and (3) the prison officials need not provide written reasons for denying the privilege of confrontation and cross-examination of adverse witnesses to an inmate.

 Ours is a pinpointed inquiry. What was required of defendants in order to meet the minimal obligatory procedural due process standards in connection with prison discipline matters at the period which is relevant to this litigation? In Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972) the Court held that,

the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances not evident in the pleadings, meet minimal due process requirements. (footnote omitted)

 Id., at 185. Specifically, the Court noted that

[in] most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him, . . . and afforded a reasonable opportunity to explain his actions. (citations and footnote omitted, emphasis added)

 Id., quoting from Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972).

 This view was reiterated in United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir. 1973), when the Court noted that

Gray requires that Tyrrell's transfer to punitive segregation by the Superintendent of Graterford or a warden of the Delaware County Prison be based, after hearing, on "facts rationally determined."

 Id., at 1203.

 (a) Opportunity to explain his actions

 Plaintiff does not dispute the fact that he was given written notice, prior to the hearing, of the charges lodged against him, or that the hearings were, in fact, held. Rather, his objection goes to the conduct of the hearings, and, in particular, to the actions of those persons who presided at the hearings, which resulted in ...

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