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August 23, 1978

Jeffrey Roger MIMS and Frederick Burton et al.
Milton SHAPP, Governor of the Commonwealth of Pennsylvania William B. Robinson, Commissioner for the Bureau of Correction for the Commonwealth of Pennsylvania and James F. Howard, Warden of the State Correctional Institution at Pittsburgh, et al.

The opinion of the court was delivered by: WEBER


This court must now decide whether the Commonwealth of Pennsylvania may continue to confine plaintiff Frederick Burton in the "Behavioral Adjustment Union" (BAU) of the Western Penitentiary (also known as SCI Pittsburgh).

 On May 31, 1973, Frederick Burton was serving his first sentence for homicide *fn1" in Holmesburg Prison. Together with another inmate, Joseph Bowen, he was admitted to the office of Deputy Warden Frumhold. Both Frumhold and Warden Curran were stabbed to death in the confrontation which immediately followed. As a result of the incident Burton was transferred to Graterford Prison and then to Western Penitentiary in Pittsburgh; in both institutions he was confined in the BAU, the most secure and Spartan area of the prison. Except for some time spent in Graterford during his trial for participating in the Holmesburg stabbing, Burton has remained in the Western Penitentiary BAU until the present. *fn2"

 No hearing was held before Burton's initial confinement in the BAU. Late in 1975, prison authorities began regular, monthly reviews of Burton's status. The notes of these reviews, conducted by the Program Review Committee (PRC), composed of certain prison officials, reveal that the outcome was always the same. Burton would remain in the BAU, at first until his trial and, later, he would remain there for another 30 days. *fn3" The recommendations of the PRC were submitted each time to the Warden, Mr. Howard, who invariably agreed that Burton should remain in the BAU. In reaching this conclusion the Warden testified that he relied on Burton's involvement in

"(t)he murder of the warden and prison warden and deputy warden within the confine of Holmesburg Prison. The fact that some of our staff felt Mr. Burton was an extremely dangerous individual, and a fact that I personally agreed with, and for this reason it was my decision that Mr. Burton would remain confined in the BAU in our institution until there was some indication that there was some change in his attitude, his conduct, his overall attitude basically." Tr. 98-98.

 His conclusion was bolstered by what he perceived, in personal contacts with Burton as his "rather cold attitude, his unwillingness to cooperate, his apparent satisfaction with being in the BAU. His lack of demands." Tr. 107. The Warden did agree with the PRC that Burton's behavior while he was in the BAU had been good, even "exemplary." Also, it is clear from cross-examination of the warden and from the fact that Burton was one of the original plaintiffs in this suit that he could not reasonably be considered to have been at all satisfied with being in the BAU. Finally, Burton's unwillingness to answer questions posed by prison officials about the Holmesburg incident prior to his conviction and sentence was a response to the sensible advice of his counsel not to say anything about it; we cannot consider this as an example of an unwillingness to cooperate.

 The Commissioner of Corrections, Mr. Robinson, testified to substantially the same effect: that Burton's confinement in the BAU was required for security reasons, a conclusion based only on his "past criminality." Tr. 267, 275. No plans have been developed to reintroduce Burton gradually in the prison population. Tr. 275. At no time has Burton been informed of specific criteria by which his eligibility for a return to general population would be judged, nor has he been allowed any extra contacts with the world outside the BAU in which he might demonstrate to the prison authorities that he no longer represented a significant security risk.

 Burton bases his claim that his prolonged confinement in the BAU should be ended by this Court on the Eighth Amendment prohibition against cruel and unusual punishment and on the Due Process clause of the Fifth Amendment.

 In cases such as this, federal courts must be

"extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate. (citations omitted).
State penitentiaries are occupied by convicted felons, either ineligible for or found to be unworthy of probation. By its very nature, the operation of such a prison is a dangerous undertaking. Time and time again, experience has dramatically taught that the management and control of prisons, the prevention of mass violence within prisons, and the safe retention of convicts within prison walls, present problems of the first magnitude, in which failures occur all too often . . ..
The authority to manage and control a felony prison should never be unduly restricted or divided. That authority must repose in one well identified place, limited only by the requirements of the law." Newman v. Alabama, 559 F.2d 283, 287 (5th Cir. 1977).

 First we note that the conditions in the BAU at Western Penitentiary are not so shockingly inadequate as to constitute in themselves cruel and unusual punishment of prisoners confined there. Nor could we conclude, on this record, that any specific condition in the BAU is so unrelated to the legitimate objective of "administrative segregation" minimizing any possible security risk posed by these inmates as to be unacceptable under the Eighth Amendment analysis employed by Judge Luongo in United States ex rel Hoss v. Cuyler, 452 F. Supp. 256 (E.D.Pa.1978). Finally, although the Commonwealth apparently concedes that lengthy confinement in the BAU is probably psychologically damaging, we do not find that Burton's confinement there, even for five years, has been cruel and unusual punishment simply because of these psychological effects, which have not been severe in Burton's case. We consider it highly significant that Burton was kept in segregation because of a good faith belief by prison officials that he represented a security risk Whether the standards which they applied to make that determination were constitutionally ...

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