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UNITED STATES EX REL. ROBERSON v. ROTH

May 1, 1978

UNITED STATES OF AMERICA ex rel. MELVIN ROBERSON
v.
LAWRENCE ROTH



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 This matter comes before the Court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, Melvin Roberson, was incarcerated in Montgomery County Prison from August 2, 1974, until August 16, 1974. He filed this pro se action pursuant to the Civil Rights Act, 42 U.S.C. § 1983, naming as defendants Lawrence Roth, the Warden of Montgomery County Prison, together with Donald Carlin and William Anastasia, both of whom are Deputy Wardens. *fn1" The Court granted leave to proceed in forma pauperis and student counsel was appointed pursuant to Local Rule 9 1/2 of the Local Rules of the United States District Court for the Eastern District of Pennsylvania.

 I. STATEMENT OF THE FACTS AND HISTORY OF THE CASE:

 Plaintiff, Melvin Roberson, was transferred from Graterford Prison to Montgomery County Prison on August 2, 1974. The record shows that he was reparoled from Graterford at that time, after incarceration for a parole violation. He was transferred to the County Prison for detention, pending the imposition of sentence by the Montgomery County Court for a robbery conviction; he was assigned to a cell in the "front jail." *fn2" His personal belongings, including law books and papers, were taken from him, although they were returned later the same day.

 Plaintiff remained in this more restrictive cell until August 5, 1974, when he was moved into the general population, or "back jail." Defendants allege that this transfer was the result of periodic administrative reviews of inmates held in custody. Plaintiff contends that he was taken before defendant Anastasia, who offered to transfer plaintiff into the general population in return for plaintiff's promise to refrain from writing writs, filing legal papers, and advising other inmates of the available legal programs at the prison. *fn3"

 On August 8, 1974, an incident occurred between plaintiff and the guard, Paul Salvati, originally named as a defendant. According to plaintiff, he was looking into the cell of a fellow inmate when Salvati shoved him roughly to the floor. Plaintiff states that he got up without saying anything to the guard and continued on his way to the lunch room. He further alleges that while he was having his lunch, the same guard came up and shouted at him in Italian. Another inmate, who understood Italian, purportedly interpreted the phrase shouted at plaintiff as "Black Nigger."

 According to Salvati, he and another guard, named Bucci, observed plaintiff walking along the corridor shouting into the small door, or wicket, on each cell and slamming the door shut. Salvati approached plaintiff, touched him lightly on the shoulder, and told him to go on to lunch. Plaintiff is alleged to have become boisterous and insulting. Later, in the lunch area, the two guards were talking to each other in Italian when plaintiff approached, insisted that he was the subject of the conversation, and that they were insulting him, and again became boisterous and insulting. Both guards made written reports of their version of the incident, and these reports were signed by plaintiff. *fn4"

 On August 9, 1974, there was a meeting in the office of Deputy Warden Anastasia, with Anastasia, Roth, the guards, Salvati, Bucci, and plaintiff present. Again, plaintiff and defendants have different versions of the genesis of that meeting as well as its substance. According to plaintiff, the meeting occurred because he had stated to the corporal of the guard that he wanted to see the warden in order to bring assault charges against guard Salvati. According to defendants, plaintiff had caused a commotion and demanded to see the warden when he received copies of reports of the guards with respect to his conduct. Despite the different versions of the purpose and content of the meeting, both sides agree that the meeting terminated when defendant Anastasia informed plaintiff that he would be transferred back to the front jail for his protection and that a guard would be assigned to protect plaintiff when he left the cell. This procedure was enforced throughout the remainder of this time period, even though plaintiff had not requested such protection.

 Plaintiff has presented copies of two request slips, one dated August 9, 1974, addressed to defendant Anastasia, and one dated August 14, 1974, addressed to defendant Roth. These slips request that charges be lodged against Salvati and that plaintiff be released to the general prison population or given a hearing. According to the normal prison procedure, as testified to by defendant Anastasia, an inmate in administrative detention would receive a hearing after submitting such a request slip. *fn5"

 Additionally, plaintiff alleges that the assignment of a guard to him resulted in the guard remaining present on two occasions while he attempted to speak with an attorney or a law student intern prior to his sentencing.

 II. MINOR CLAIMS:

 Many of plaintiff's complaints can be dismissed summarily, such as his contention that his personal possessions were seized upon his arrival. Plaintiff testified to the contrary when his deposition was taken, stating that all of his belongings were returned to him before the end of the same day. Therefore, we find nothing violative of plaintiff's rights in ...


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