is not a "property" or "liberty" interest entitled to protection under the due process clause. We agree that this case controls and will dismiss this portion of plaintiff's complaint.
We also agree with defendants that the complaint should be dismissed against the Northampton County Prison Board because it is not a "person" within the purview of the Civil Rights Act. See Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977). However, this holding does not warrant dismissal of the actions against the Board members, who may be liable as individuals. Likewise, the quasi-judicial immunity of the Board members, which applies to adjudicatory duties, is not properly raised at this juncture. Nor is the good faith qualified immunity for executive officers properly before us. We do not have on record the bases for the actions of any of the Prison defendants regarding any of the matters set forth in the complaint. Thus we cannot tell if the acts complained of were adjudicatory in nature or whether they were performed in good faith. These matters are more properly raised in summary judgment motions supported by exhibits.
However, in order to be liable, the members of the Prison Board, as supervisors of DiGiacinto and Olander, must have actual knowledge of the subordinates' acts and acquiesce in them or must directly participate in them. Such personal knowledge can be found if there was a history of such episodes. Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974). See also Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976).
The complaint does not allege such participation. There are no indications that the Board members had any specific knowledge of the acts complained of, nor is it alleged that the Board participated in such acts. Plaintiff does make a variety of very general allegations that seek to indicate a corrupt situation in the Prison of which the Prison Board should have been aware. These allegations include: charging excessive prices in the prison store, and seeking to limit inmates to one phone call per month (para. 56), systematically ignoring prisoners' grievances (para. 55), writing reports of rehabilitation and vocational programs that are sheer fabrication (para. 58), generating hate and rebellion through lies and favoritism (para. 59), leaving themselves open to successful litigation in federal court (para. 56) and suffering a mass escape (para. 56).
This general caustic language, while painting a picture of a poorly run prison, does not allege a systematic deprivation of constitutionally protected rights and liberties. Even if the Board is aware of poor prison management, it cannot be inferred that the Board was aware of actual civil rights violations.
There is some indication that the Board might have known of a pattern of arbitrary and discriminatory grants and denials of work release and furlough leaves. In paragraph 25 plaintiff lists six instances of grants or denials of work releases and furloughs which are indicated as being very poor decisions. However, these incidents do not indicate that there was a pattern of systematic constitutional violations that would have given the Prison Board personal knowledge of such misconduct, in which they acquiesced. These incidents would only tell the Board that work releases and furloughs are sometimes granted and sometimes denied, that there is no concrete pattern to such grants or denials and that perhaps there was an occasional lack of wisdom in one or another of these decisions. This level of knowledge is hardly that called for by Bracey v. Grenoble to impose liability on a superior for acts of subordinates. Perhaps the individuals involved in these incidents could show that they were subjected to arbitrary treatment in violation of the Civil Rights Act, but the mere existence of these incidents does not create a pattern of conduct so pervasive as to permit the Court to assume that the Prison Board had sufficient knowledge of the deprivation of constitutional rights to be liable.
Thus, the complaint will be dismissed as to the Prison Board members as well as to the Prison Board.
The Parole Board
The Parole Board properly notes that three-judge courts are no longer available to judge the constitutionality of a state statute unless the constitutionality of apportionment of Congressional or state legislative districts is involved. 28 U.S.C. § 2284(a), as amended, now reads:
"(a) A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body."
Thus, a three-judge court is required under certain provisions of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. See Wright, Law of Federal Courts, p. 214. It is not available for the relief requested in this action, namely, declaration of the Pennsylvania Probation and Parole Act as unconstitutional.
Furthermore, we find that the statute is constitutional. See United States ex rel. Horne v. Pennsylvania Board of Parole, 234 F. Supp. 368 (E.D. Pa. 1964). In a hearing to determine suitability for parole, a prisoner is not entitled to an evidentiary or adversary hearing, the opportunity to present witnesses or documentary evidence, the right to confront and cross-examine witnesses or to interrogate Parole Board members, the right to examine his record or the right to rebut information militating against parole. Such rights are associated with adversary hearings, and the Parole Board is not an adversary of the prisoner. In fact, it is in the Board's interests to secure the release of qualified inmates. See Wiley v. United States Board of Parole, 380 F. Supp. 1194 (M.D.Pa. 1974).
Plaintiff in this case is not alleging improper revocation of parole, so it is doubtful that he can contest the Act's revocation provisions in light of the Due Process requirements of Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). However, it is notable that in Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A. 2d 842 (1973), the Court extended the right to a due process hearing to convicted parole violators as well as technical parole violators. Thus, the Act, as it has been interpreted by Pennsylvania courts, supplies every bit of the requirements of Morrissey if not more.
Furthermore, we note that the Act, in sections 331.19 and 331.21, sets forth specific requirements for granting parole.
Thus, such a decision cannot be arbitrarily made in keeping with this statute.
The courts have also upheld the provisions of the Act governing arrest and detention of parole violators. See United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404, (E.D.Pa.1975). Taking all these matters into account, we hold that the Act, as it has been construed by the courts, is not unconstitutional.
The Parole Board itself cannot be sued because it is not a "person" under the Civil Rights Act. See Thompson v. Burke, supra. Furthermore, Parole Board members and probation officers are entitled to a qualified immunity in which they are immune from suit if they acted in good faith. Id.
Unlike the Prison defendants, the Parole Board defendants have furnished an exhibit which describes the bases for their actions. The exhibit, which consists of documents from the file of Philip Gahagan, clearly indicates that parole was denied him in May of 1975 because of his refusal to participate in therapy for alcohol addiction and his need for further counseling and treatment, as well as educational and vocational training. The documents also indicate concern with plaintiff's "unrealistic attitude", particularly concerning acceptance of authority.
We cannot conclude as a matter of law that denial of parole based on these factors was done arbitrarily or in bad faith. Thus, we will grant defendants' motion for summary judgment as it relates to the allegation that plaintiff was wrongfully denied parole.
Concerning the Weisel interview, the Court has been furnished an affidavit in which Weisel states that all questions she used in her interview were routine. The four questions she specifies are:
"a. Have you ever had veneral (sic) disease?
b. Have you ever had a homosexual relationship?