The opinion of the court was delivered by: LUONGO
This action under the Civil Rights Act of 1871 was instituted by Stanley B. Hoss to redress alleged deprivations of his civil rights during his confinement at the State Correctional Institution at Graterford. Hoss contends that he has been subjected to cruel and unusual punishment and deprived of liberty without due process of law. The case was tried to the Court, sitting at Graterford, on June 1, 1976. Since that time, the parties have unsuccessfully attempted to settle the case. In addition, decision has been deferred to allow completion of psychiatric evaluations of Hoss which were conducted pursuant to an order of this Court. In the interim, counsel have supplemented the record with various documents. Now that the record is complete, I make the following
1. Plaintiff is Stanley Barton Hoss, an inmate of the State Correctional Institution at Graterford, Pennsylvania (SCI Graterford), who is confined to that institution's Behavior Adjustment Unit (BAU).
2. Defendant Julius T. Cuyler is the Superintendent of SCI Graterford.
3. Defendant Robert N. Mauger is one of the two majors of the guard at SCI Graterford. From October 1975 to May 1976 he served as acting Deputy Superintendent for Operations at the institution, replacing Deputy Superintendent T.J. Meisberger, who was on sick leave.
4. Defendant Daniel T. Sims is the Deputy Superintendent for Treatment Services at SCI Graterford.
5. Defendant Lawrence Reid is Director of Treatment Services at SCI Graterford.
6. Defendant William B. Robinson is the Pennsylvania Commissioner of Correction.
7. Hoss was born March 1, 1943.
8. To keep in good physical condition, Hoss practices a demanding daily physical fitness regimen, including 1000 push-ups, 600 "dips," 600 sit-ups, and karate exercises. To develop his hands, he hits the cement wall of his cell daily.
9. According to the testimony and medical reports of psychiatrists, Hoss is not psychotic, although he does have a personality disorder known as "passive-aggressive personality." The term "passive-aggressive personality" was not defined at trial; Stedman's Medical Dictionary (4th unabr. lawyers' ed. 1976) defines it as follows on page 1061:
"a personality disorder in which aggressive feelings are manifested in passive ways, especially through mild obstructionism and stubbornness."
The SCI Graterford staff psychiatrist described Hoss' personality as "severely passive-aggressive or explosive."
10. Hoss is Caucasian. He frequently uses the epithet "nigger" in referring disparagingly to other persons. At trial, he explained that he does not use this word in a racial sense as a label for black persons; instead, he uses it as a derogatory name for any person - black or white - who does not treat him fairly or with respect.
C. History of Hoss' Incarceration Prior to His Transfer to SCI Graterford
11. On March 9, 1970, Hoss was convicted of first degree murder in the Court of Common Pleas of Allegheny County, Pennsylvania, and was sentenced to death. On October 25, 1972, the death sentence was vacated and Hoss was sentenced to life imprisonment.
12. Until 1973, Hoss was incarcerated at the State Correctional Institution at Pittsburgh (SCI Pittsburgh).*
14. On September 10, 1972, SCI Pittsburgh officials found Hoss guilty of misconduct in refusing to move to another cell and in threatening an officer.
15. On December 10, 1973, Hoss (who was confined to the BAU) and other SCI Pittsburgh inmates assaulted and killed Walter Peterson, a black prison guard.*For that slaying, Hoss was convicted on June 13, 1974 of second degree murder in the Court of Common Pleas of Allegheny County, Pennsylvania, and was sentenced to a further prison term of ten to twenty years.
16. Two days after the killing of Peterson, Hoss was transferred to the State Correctional Institution at Huntingdon (SCI Huntingdon), where he was kept for the duration of the Peterson murder trial. After that trial, on June 19, 1974, Hoss was transferred from SCI Huntingdon to SCI Graterford. Throughout the period of his incarceration at SCI Huntingdon, Hoss was held in that prison's BAU.
D. Description of SCI Graterford and its Procedural Regulations
17. SCI Graterford is a part of the Pennsylvania prison system. It is under the supervision, management, and control of a board of trustees, a departmental administrative board within the Pennsylvania Department of Justice, and of the Bureau of Correction, a part of the Department of Justice headed by the Commissioner of Correction. *
18. At the time of trial, the inmate population of SCI Graterford was 1725, of which only about 200 were white. Although these figures are constantly changing, the ratio of black to white inmates at SCI Graterford remains high.
19. At the time of trial, SCI Graterford had 279 correctional officers, including guards. The guards work eight hour shifts and are divided into nine squads; two squads work during each shift.
20. Some of the administrative personnel at SCI Graterford, including defendants Cuyler, Sims, and Reid, are black.
21. The chief administrative officer at SCI Graterford is the superintendent. From the time of Hoss' arrival at SCI Graterford in June 1974 to the date of trial, the institution had three superintendents - Robert L. Johnson, who left a few days after Hoss' arrival; Ronald Marks, who served from the time Johnson left until early 1975; and defendant Cuyler, who became superintendent in early 1975.
22. SCI Graterford is administered in accordance with administrative regulations issued by the Commissioner of Correction, including Bureau of Correction Administrative Directive No. 801, which deals with prison disciplinary procedures and restricted housing categories. That Directive became effective on June 1, 1974 and was amended in several significant respects on February 12, 1977.*As amended, para. 1 of the Directive [to be codified at 37 Pa. Code § 95.101] sets forth its "Scope and Purpose" as follows:
"Institutional life shall be governed by standards of behavior designed to promote correctional objectives and to maintain the general welfare of the institutional community. The laws of this Commonwealth and the rules and regulations of the Bureau of Correction and of the institution are a part of the standards of behavior governing each institution.
23. Administrative Directive No. 801 sets forth a fairly comprehensive procedure for the handling of prisoners' misconducts. It provides that "expectations and prohibitions" applicable to inmates of all institutions under the Bureau of Correction's supervision are to be defined by administrative directives issued by the Attorney General and Commissioner of Correction and by regulations comporting with these directives issued by the superintendent of each institution upon approval of the Commissioner of Correction. (para. II.A. [§ 95.102]) It provides guidelines for the classification of misconducts into two categories - "major" or "class 1" (ranging from murder to refusal to obey an order and repeated violations of minor misconduct prohibitions) and "minor" or "class 2" (ranging from simple assault or "body punching" to tatooing and failure to report for work). (para. II.B. [§ 95.102.1]) As amended, the Directive provides that all misconduct charges must be heard by a Hearing Committee consisting of a major or captain of the guard (the committee chairman), a casework supervisor, and a school or vocational supervisor. Inmates charged with misconduct are entitled to written notice, a hearing, an explanation of the committee's decision during a personal appearance of the inmate before it, and formal review by another body known as the Program Review Committee. (Amended Directive, para. III [§ 95.103]) The original version of the Directive mandated similar procedures, except that it provided for somewhat less formal disposition of minor misconduct charges (original Directive, para. III.D.).
24. Administrative Directive No. 801 authorizes a variety of disciplinary measures for dealing with prisoners' misconducts. For major misconducts, one of the actions authorized is a change of the prisoner's housing from that used for the general prison population - i.e., those inmates "who do not require special physical measures for the control of behavior" (original Directive para. V.A.) - to a more restricted housing area. (Original Directive, para. III.H.5; amended Directive, para. III.F. second 3. [§ 95.103(f) (second 3)]) The original version of the Directive authorizes two restrictive housing categories for such use: "Administrative Custody" and the "Behavior Adjustment Unit" (BAU); as amended, it authorizes "placement in Close or Maximum Disciplinary Custody." The amended Directive provides that placement in disciplinary custody "will have a specified maximum duration for each misconduct not to exceed six months."
25. In addition to authorizing use of the more restrictive housing categories to discipline prisoners who committed misconducts, Administrative Directive No. 801 authorizes use of restrictive housing for behavioral control in situations in which a hearing has not been held. Paragraph IV.B. of the original Directive provided:
2. A resident who has allegedly committed a minor misconduct may be confined as follows:
a. Depending upon the situation, and the need for control, a resident may immediately be removed from his job, restricted in activities and/or confined to his own cell upon approval of the officer in charge of the institution pending the application of procedures under Paragraph III.
b. A resident who poses a clear and present danger to himself, others, or property, may be placed in Administrative Custody or the Behavior Adjustment Unit on a temporary basis upon approval of the officer in charge of the institution pending the application of procedures under Paragraph III or until such time as he can be safely removed.
3. A resident may be temporarily confined to any of the above units in an investigative status upon approval of the officer in charge of the institution where it has been determined there is a threat of a serious disturbance or a serious threat to the individual or others. An investigation shall begin immediately to determine whether or not a behavior violation has occurred.
4. If the above conditions do not exist, the resident shall not be so confined unless such confinement is determined by the disposition of the case in accordance with Paragraph III."
Clauses 1. and 2.a. of the paragraph have been included in para. IV.B. of the amended Directive [§ 95.104(b)] with the one significant change that "Close or Maximum Administrative Custody" has been substituted for "Behavior Adjustment Unit." As amended, the paragraph does not contain clause 2.b. and has the following revised clauses 3. and 4.:
"3. An inmate may be temporarily confined to either of the above units in an investigative status upon approval of the officer in charge of the institution where it has been determined there is a threat of a serious disturbance, or a serious threat to the individual or others. The inmate shall be notified in writing as soon as possible that he is under investigation and that he will receive a hearing if any disciplinary action is being considered after the investigation is completed. An investigation shall begin immediately to determine whether or not a behavior violation has occurred. If no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abated but in all cases within ten (10) days.
4. An inmate who requests self-confinement may be placed in Close or Maximum Administrative Custody upon approval of the officer in charge of the institution pending review by the Program Review Committee. The Program Review Committee shall document the request by the inmate as well as the reasons for the request and shall determine whether Close or Maximum Administrative Custody is warranted by a review of the reasons and whether continuing confinement is justified or whether a transfer should be recommended."
26. The general prison population at SCI Graterford is housed in five cell blocks of 400 cells each. The population of each cell block ranges from 360 to 290. Five correctional officers are assigned to each cell block.
27. The original version of Administrative Directive No. 801, para. V.B., described authorized use of the "Administrative Custody" housing category as follows:
"for residents requiring closer supervision or protection than is provided in the general population and for temporary assignment of residents pending further classification."
28. The original version of Administrative Directive No. 801, para. V.C., described authorized use of the BAU as follows:
"for residents found by the Hearing Committee/Program Review Committee in accordance with the procedures established in this directive to have committed major misconducts and/or for residents who require close custody for the protection of themselves and others as provided under IV.B."
The BAU was the most restrictive housing category for those prisoners not subject to confinement in Psychiatric Quarters. Paragraph VI.B. of the original Directive imposed the following requirements with regard to the BAU:
"The Behavior Adjustment Unit shall be in a separate cell-block or building of the institution providing close custody.
1. The purpose of placing a resident in this unit shall be to closely supervise, control and treat problematic behavior of a serious nature.
2. Residents confined thereto shall have all the rights and privileges accorded the general population except for freedom to move about the institution, to engage in programs with the general population, or the use of individual radios and televisions. However, the use of the latter items may be permitted with the express approval of the Hearing Committee/Program Review Committee. Any privilege may be curtailed at the express discretion of the Hearing Committee/Program Review Committee."
At SCI Graterford, the BAU is a separate building located at a distance of three or four city blocks from the main prison building. The BAU has a capacity to house 39 prisoners, but the most ever kept there is 34, and at the time of trial only 22 or 23 prisoners were housed there. BAU residents are kept segregated from each other and are confined to their own cells throughout the day except for a daily period of recreation outside the cells and an opportunity to use the showers, which are in a separate section of the BAU. The cells are eight feet wide, ten feet long, and nine feet high. In accordance with the discretion allowed by para. VI.B.2. of the original version of Administrative Directive No. 801, the residents have had access to a radio. At the time of trial, they did not have access to a television because of insufficient electricity in the BAU building, but since then the prison has installed electrical facilities for television in the part of the BAU in which Hoss is housed. BAU residents are allowed a maximum of three visits per month, and each visit may last no longer than one hour. The BAU residents are under close supervision of prison correctional officers; four officers are stationed in the BAU from 6:00 a.m. to 6:00 p.m., and two officers are stationed there from 6:00 p.m. to 6:00 a.m. Because the BAU provides isolation from other inmates, some SCI Graterford prisoners have requested BAU confinement for self protection.
29. The original version of Administrative Directive No. 801 authorized use of Administrative Custody and the BAU for both administrative and disciplinary reasons. The 1977 amendments changed the terminology applied to the restrictive housing categories, authorizing the establishment of "Administrative Custody" and "Disciplinary Custody," each of which is to contain two confinement levels, "close" and "maximum." (Amended Directive para. V [§ 95.106])
30. The amended version of Administrative Directive No. 801, para. V.A. [§ 95.106(1)], describes authorized use of the "Administrative Custody" housing category in the same manner as that in para. V.B. of the original Directive. Unlike the original Directive, however, the amended version does not authorize use of Administrative Custody as a disciplinary measure. Paragraph VI.A. of the amended Directive [§ 95.107(a) *] provides, in part:
"1. The purpose of placing an inmate in this unit shall be to maintain the safety of the institution by segregating an individual who poses a threat to other inmates, to staff or to himself, poses an escape risk or needs protection from other inmates. The decision to place an inmate in this custody must comply with [paragraphs] III.G.4., IV.B.1., IV.B.3., or IV.B.4. . . .
2. The inmates therein shall have all the rights and privileges accorded to the general population except for freedom to move about the institution, freedom to engage in programs with the general population, the use of civilian clothing, and the use of items specifically found by the Program Review Committee to be a security hazard. The use of personal radios and televisions may be permitted with the express approval of the Program Review Committee. All other personal property which is permitted in general population will be permitted in Administrative Custody."
The paragraph also authorizes institution of "a limited release program from Close Administrative Custody as a gradual process to return to general population status." (Amended Directive, para. VI.A.4. [§ 95.107(a)(4)])
31. Paragraph V.B. of the amended Directive [§ 95.106(2)] authorizes use of Disciplinary Custody "for inmates found by the Hearing Committee to have committed Class 1 [major] Misconducts." Paragraph VI.B. [§ 95.107(b)] provides:
"Disciplinary Custody housing . . . will be specified groups of cells in a designated section or sections of the institution as the physical plant permits.
1. The purpose of placing an inmate in this unit shall be to supervise and control serious disciplinary problems.
2. Inmates confined therein shall not be permitted freedom to move about the institution or to engage in programs with the general population. Inmates in this confinement will be permitted those items, or use of those items, necessary to maintain an adequate level of personal hygiene as well as a reasonable amount of personal legal materials and correspondence. Inmates in this unit will also be permitted to visit with their approved visitors consistent with institutional and Bureau regulations, to correspond consistent with Bureau Directives and will be issued those items not already possessed by the inmate necessary to maintain personal hygiene, to correspond and prepare personal legal documents; also three cigarettes or their equivalent per day if requested. Any privilege may be curtailed at the express decision of the Hearing Committee after a Hearing."
32. The distinction between administrative and disciplinary custody recognized by the amended version of Administrative Directive No. 801 corresponds to a similar distinction between "Administrative Segregation" and "Punitive Segregation" in July 1972 rules and regulations published by SCI Graterford [Ex. P-2]. Paragraph I of the rules describes "Administrative Segregation" as follows:
Assignments to administrative segregation are to be made by "the Behavior Clinic, Treatment Staff, Superintendent, Deputy Superintendent, Major of the Guard, or, in his absence, the Officer-in-Charge"; provision is also made for the prisoner to request administrative segregation. (para..B.2) Residents in administrative segregation are to be housed "where possible, separate from [those in] punitive segregation." (para. I.B.1.) The rules do not define "Punitive Segregation." They provide for assignment to that category as follows:
"Assignment to punitive segregation will be recommended by the Behavior Clinic and will have the approval of the Superintendent. Pending action of the Behavior Clinic, assignment will be made only by the Superintendent, Deputy, Major or Officer in Charge of the Institution." (para. I.C.2.)
Residents in punitive segregation are to be housed "in a separate section of [the Maximum Security Cell Block], specifically designed for the housing of disciplinary cases." (para. I.C.1.) They are subject to much greater restrictions than residents in administrative segregation. The rules provide for review of the cases of residents in both administrative and punitive segregation by the "Behavior Clinic" at least every thirty days.
33. Paragraph V of the amended version of Administrative Directive No. 801 [§ 95.106] provides that housing in Administrative and Disciplinary Custody shall be divided into "close" and "maximum" classes. In each case, "maximum" custody is described as "housing in the most secure facilities available in the institution"; it "includes the most intensive scrutiny of all matters pertaining to security and the most restrictive regulation of inmate mobility." The paragraph states that "close" custody "involves housing in more secure facilities than those used for general population and restricted mobility", although "the degree of security and restriction of mobility is less than the degree present in maximum custody." Whether confinement is to be at the close or maximum level is to be determined by the Program Review Committee (and initially, in the case of Disciplinary Custody, by the Hearing Committee) on the basis of "the intensity of supervision and control required" and, in disciplinary cases, "the nature and particulars of the offense committed." (Amended Directive, paras. V.A.,B.; VI.A.1., B. [§§ 95.106(a), (b); 95.107(a)(1), (b)])
34. The parties have not submitted evidence as to how the restricted housing designations used in the amended version of Administrative Directive No. 801 correspond to the housing quarters at SCI Graterford. From the description of the various designated housing levels, it appears that Close Administrative and Disciplinary Custody corresponds to what has been known as "B Gallery" housing and Maximum Administrative and Disciplinary Custody corresponds to what has been known as the BAU.*No evidence has been presented as to whether SCI Graterford now distinguishes between the privileges afforded to B Gallery and BAU residents according to whether their confinement is for administrative or disciplinary reasons.
35. Standard procedure at SCI Graterford is to place a prisoner transferred from another institution into the same housing category as that in which he was at his previous residence until his status can be reviewed. The initial review is conducted by the Behavior Clinic, a three-man committee consisting of defendant Mauger (the Acting Chairman) and one treatment and one vocational staff member. The Behavior Clinic reviews the transferee's records to determine whether he should be kept in the same housing category as that at his previous residence or placed in a different category. If the Behavior Clinic decides that the transferee should be housed in the BAU for more than thirty days, it relinquishes jurisdiction over the new inmate to the Program Review Committee.
36. The Program Review Committee is a three-man body which, under Administrative Directive No. 801, consists of the Deputy Superintendent for Operations, the Deputy Superintendent for Treatment Services, and the Director of Treatment (called "Classification and Treatment Supervisor" in the amended Directive). (Original Directive, para. III.I.1; amended Directive, para. III.G.1. [§ 95.103(g)(1)]) At SCI Graterford, these positions are filled by Deputy Superintendent Meisberger and defendants Sims and Reid. From October 1975 to May 1976, defendant Mauger, as acting Deputy Superintendent for Operations, was on the committee in place of Meisberger, who was on sick leave; he also has substituted for Meisberger since the summer of 1977. The committee's duties include review of misconduct determinations of the Hearing Committee and, since May 1975, review of the status of inmates retained in the BAU for periods longer than thirty days. Prior to May 1975, the BAU inmate status reviews at SCI Graterford were conducted by the Behavior Clinic; the duty was transferred to the Program Review Committee by Superintendent Cuyler in compliance with Administrative Directive No. 801.
37. The following provisions of para. III.I. of the original version of Administrative Directive No. 801 were applicable to the Program Review Committee:
2. The resident shall be entitled to have any decision of the Hearing Committee reviewed by the Program Review Committee at his request.
3. The Program Review Committee shall review weekly those cases of residents detained in Administrative Custody or the Behavior Adjustment Units as the result of action of the Hearing Committee.
4. The Program Review Committee shall review bi-weekly those cases of residents held in Administrative Custody by self-imposed confinement, administrative protective confinement, transfers, etc.
5. The Program Review Committee shall interview in person at least once every 30 days those residents detained in Administrative Custody or the Behavior Adjustment Unit. Residents detained in this status for more than 30 days shall have their cases reported to the Commissioner of Correction, together with the rationale for such status and the particular programs prescribed."
In the amended Directive, these provisions are in para. III.G. [§ 95.103(g)], and clauses 3.-5. have been amended to read as follows:
"3. The Program Review Committee shall review weekly those cases of inmates detained in Administrative Custody or Disciplinary Custody and shall decide whether continued custody in those units is appropriate and necessary in each case. This decision will be based upon a review of the counselor's notes and recommendations, additional entries made on the inmate's record regarding his attitude and actions since placement in the restricted housing or since the last weekly review as well as the misconduct which was the basis of the placement for those cases in Disciplinary Custody.
5. The Program Review Committee, in releasing an inmate from Disciplinary Custody, must determine whether the inmate is a threat to other inmates, to staff or to himself or poses a threat of escape and all available records on the inmate shall be reviewed and considered to make this decision. In cases where such a determination is made the Program Review Committee may assign the inmate to either Close or Maximum Administrative Custody in cases where the inmate was released from Maximum Disciplinary Custody or to Close Administrative Custody where the inmate was released from Close Disciplinary Custody. This determination will be made in writing and a copy will be provided to the inmate.
Paragraph VI.D. of the original Directive provided:
"Residents in [Administrative Custody, the BAU, and Psychiatric Quarters] shall receive interviews at least weekly by the institution's professional treatment staff in an attempt to restore satisfactory behavior. The Program Review Committee shall release a resident from ...