the committee's decision and the nature of the evidence supporting that decision. Also, a record review was conducted every seven days, generally by the correction supervisor of the special housing unit, but plaintiff had no input into that review. Lastly, there was no formal investigation, but Mr. Jacobsen conducted an investigation in the sense that he spoke to plaintiff regarding the burnout in his cell, conferred with other staff members, and obtained the information from the confidential informant.
Plaintiff does not directly dispute that he was placed in administrative segregation because it was believed that his life was in danger. Rather, he does not believe that, in fact, his life was in any danger. He claims that the unidentified informant must have been lying or misinformed. While not disputing the facts outlined in the affidavit of Mr. Jacobsen submitted July 18th, plaintiff asserts that it is incorrect to draw from these facts the conclusion that his life was in danger. He states that (1) it is a common practice in the federal penitentiary system for certain inmates to attempt to scare another inmate by starting a fire in his cell in order to get him to "move on" so that they might have his cell or his job; (2) whenever he was transferred from one section to another, he had requested the transfer far in advance or it was the result of other circumstances having nothing to do with any changes in prison procedures and his transfers did not reflect on his character in the other inmates' minds; and (3) Mr. Jacobsen is basically, in effect, solely responsible for plaintiff's placement in administrative segregation.
As stated, plaintiff maintains that his placement and confinement in the administrative segregation unit was unlawful. He claims that the prison officials never made a proper determination that he was in need of protective custody, never conducted a proper investigation, and that he was not in need of protective custody. Reading this pro se complaint with the appropriate liberality, See Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), I believe that plaintiff is asserting that he has been denied his right to procedural due process and that he had a right to some of the procedures the federal prison officials employ with disciplinary action cases. I also construe his complaint as alleging that he has been denied his constitutional right to substantive due process, i. e., that he was placed in administrative segregation arbitrarily or capriciously. However, plaintiff does not allege that his confinement in administrative segregation amounted to cruel and unusual punishment. His concern has been with the fact of his confinement in the segregation unit, not with the conditions therein.
A federal court must exercise care in interfering with the broad discretion afforded prison officials, especially when it comes to the classification of prisoners. See Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977). Furthermore, prison officials have a duty to protect inmates from physical assault and danger. See 18 U.S.C. § 4042. And, under the proper circumstances, an inmate may be placed in administrative segregation against his will for his own protection. Cf. Kelly v. Brewer, 525 F.2d 394, 398 (8th Cir. 1975). However, given the conditions that exist in the administrative segregation unit at Lewisburg, See Bureau of Prisons' Policy Statement No. 7400.5D (July 7, 1975) (hereinafter 7400.5D); and Civil No. 78-260, document No. 34, filed July 18, 1978,
I believe that prolonged incarceration in that unit against an inmate's will implicates a liberty interest protected by procedural due process.
The procedures employed here appear to basically conform to the procedures outlined in 7400.5D for administrative segregation cases.
In the ordinary administrative segregation case these procedures might well be adequate. In the typical case the underlying facts are not in dispute. For instance, a prisoner may be there for his own protection at his request, See Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. en banc, 1975), or he is there as a holdover, See Hooker v. Arnold, 454 F. Supp. 527 (M.D.Pa., 1978) or he may be there pending a hearing for a violation of disciplinary rules or pending an investigation. But in the situation presented here, plaintiff is disputing the facts (his need for protection) which underlay the decision to confine him in administrative segregation. Given this, plus the duration of the confinement,
I believe that the procedures utilized were constitutionally deficient. First, I believe that plaintiff was entitled to the procedures outlined in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). That would include, inter alia, the right to call witnesses and present evidence unless institutional safety would have been jeopardized and the right to a written statement after the hearing of the evidence and reasons relied upon. This was not done.
Furthermore, as a matter of equal protection, plaintiff should have been afforded, along with the procedures that were utilized, the procedures outlined in 7400.5D for disciplinary cases which go towards the reliability of the factfinding process. At a minimum this should have included a staff representative and a finding by the I.D.C. that there was a substantial factual basis to conclude that plaintiff was in danger if he remained in general population and that he was in need of protective custody. It is not necessary for me to spell out all the procedures which should have been utilized because the most this court would order here as a result of the procedural deprivations would be that the correct procedures be followed by the prison officials in order that a proper determination regarding plaintiff's need or lack of need for administrative segregation be made. Since plaintiff is no longer confined in administrative segregation, such a course of action is not called for. Suffice it to say that the procedures employed here were constitutionally inadequate.
However, I believe that, as a matter of law, it would be inappropriate to impose damages on any of the defendants. Defendants are entitled to a qualified immunity, i. e., the defense of good faith. See Butz v. Economou, et al., 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). That means that if the defendants believed in good faith that their conduct was lawful and this belief was reasonable, they cannot be held liable in damages. See Clark v. Zimmerman, 394 F. Supp. 1166 (1975). Even though defendants have not specifically pleaded this defense, it is obvious from the record that it applies. Plaintiff was basically afforded the procedures outlined in 7400.5D applicable to administrative segregation cases. See supra. There would be no reason for any of the defendants to believe that these procedures would be constitutionally deficient in this particular case. See Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978). Plaintiff does not really allege that any of the defendants were actually acting in a capricious or bad faith manner, nor is there evidence from which that could be inferred. And there were good faith efforts made to transfer plaintiff to the general population of another institution. Furthermore, except as to defendants Jacobsen and Fenton, the only connection the other defendants seem to have to the case is the fact that they were a part of plaintiff's unit team and, therefore, possibly reviewed the situation. This does not sufficiently implicate them in the constitutional violation. Lastly, given the fact that I do not believe that there has been any substantive due process violation here, See infra which means that plaintiff's job was not lost through arbitrary or capricious action, plus the fact that plaintiff is not constitutionally entitled to a particular prison job and did not lose any good time to which he would otherwise have been statutorily entitled (i. e., he did not have any good time forfeited or withheld), it would not be appropriate to award as damages the extra good time he might have earned had he not been placed in administrative segregation and lost his job.
Finally, as to plaintiff's substantive due process claim, the claim that he has been arbitrarily or capriciously placed in administrative segregation, I believe it has no merit. As stated, prison officials have wide discretion, especially in the classification of prisoners, and I believe a sufficient basis now exists on the record to support the finding by the prison official defendants that plaintiff would have been in danger if he remained in the general population at Lewisburg and that he was in need of protective custody. The prison staff drew rational inferences from the facts presented in making their determination and placing plaintiff in administrative segregation was not an arbitrary or capricious act. This is not changed by the fact that plaintiff also provides an explanation of the facts which I believe is rational and which might lead to the conclusion that his life was not in danger. This court does not sit as the fact finder here. The substantive due process review here is not whether this court believes that plaintiff's life may have been in danger, but, rather, whether the prison officials' determination that plaintiff's life was in danger was rational and whether it was an arbitrary or capricious act to place him in administrative segregation. As stated, I believe it clearly was not such an act and, therefore, there has been no substantive due process violation. Cf. Beatham v. Manson, 369 F. Supp. 783 (D.Conn.1973).