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January 29, 1979

Charles COBB et al.
Louis S. AYTCH et al.

The opinion of the court was delivered by: NEWCOMER


Plaintiffs instituted this class action alleging that defendants violated their constitutional rights by transferring them from Philadelphia County prisons to the penal institutions of the Commonwealth of Pennsylvania. The case was tried to the Court and, after due consideration, and pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.


 1. Charles Cobb, James S. Glover, Daryl X (Jackson), Michael Jordan, Gregory Martinez, and Jeffrey X (Robinson) are the original plaintiffs in this action. After the original action was filed, Edward Engelfreid and Joseph Vines were permitted to intervene as plaintiffs.

 2. The named plaintiffs brought the action on behalf of themselves and all other persons incarcerated in Philadelphia County prisons on May 31, 1973, and all inmates subsequently incarcerated therein who were transferred against their will or in the future might be transferred against their will to Pennsylvania penal institutions pursuant to 61 P.S. § 72. Under Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court certified the class on January 23, 1974.

 3. Defendants are two officials of the Commonwealth of Pennsylvania the Attorney General and the Commissioner of Corrections and three officials of the City of Philadelphia the Superintendent of the Philadelphia County Prisons, the District Attorney and the Commissioner of Police. The successors in office of various defendants have been substituted as party defendants.

 4. There are three Philadelphia County prisons: Holmesburg Prison, located at 8215 Torresdale Avenue, Philadelphia; The House of Correction, located at 8001 State Road, Philadelphia, Pennsylvania; and the Philadelphia Detention Center, located at 8201 State Road, Philadelphia, Pennsylvania.

 5. Incarcerated within these institutions are three major classes of inmates: (i) pretrial detainees who are unconvicted and held for trial; (ii) unsentenced persons who are convicted and awaiting sentence; and (iii) sentenced persons.

 6. In early 1973, the Philadelphia prisons were substantially overcrowded and the population exceeded the prisons' operational capacity of 1,950.

 7. Representatives of the Philadelphia criminal justice system, including the President Judge of the Philadelphia Court of Common Pleas, the Superintendent of Philadelphia County prisons and members of the District Attorney's office, met to discuss the overcrowding situation. Staff members of the Philadelphia County prisons recommended that certain categories of offenders be transferred to state institutions to reduce the population; those categories were unsentenced inmates, parole violators, and sentenced prisoners with either six or more months remaining on their minimum sentence or additional state sentences to serve. Between mid-April and early May, 1973 a list of unsentenced inmates who the prison authorities proposed to transfer was submitted to the President Judge for review and evaluation. No action was taken on that proposed transfer list in May of 1973.

 8. Even though the Philadelphia County prisons were overcrowded in 1973, inmates could move freely in their cellblocks, shower at any time, watch television until 11:00 p.m., eat in the dining hall, watch movies in an auditorium or on the block and occasionally attend shows presented by outside entertainers. In addition, a variety of educational and organizational programs were available to them.

 9. In May, 1973, Holmesburg Prison's population exceeded its design capacity by more than 450. Although not confronted by serious security problems that month, the prison officials ordered a search of the institution's inmates and cells which disclosed ninety-nine items that could have been used as weapons.

 10. About that time, Holmesburg correctional officers learned from their own observations and inmates' statements that dissension existed within the Orthodox Muslim inmate group and that inmate Joseph Bowen had assumed the sect's leadership position. Unlike the previous leader Lee Jenkins, Bowen was reputed to believe that violence was a legitimate means for causing change and an appropriate method to apply in practicing religion. The prison authorities believed that the leadership change was not accomplished through totally peaceful means. An inmate, Samuel Hutchings, had reported to Correctional Officers Clegg and Gentile that he was beaten by Bowen and other Orthodox Muslims on May 25, 1973, because they wanted to persuade him to follow Bowen rather than Jenkins. Also that same night, Bowen and his followers threatened Jenkins with harm; Officer Clegg ordered the group to disperse. Bowen's followers numbered close to twenty-eight and twelve of them lived on "I" Block with him.

 11. Tension arose not only within the Orthodox Muslim group, but also between the Orthodox Muslims that followed Bowen and Holmesburg Prison authorities. Bowen sought to use a storage room on "I" Block for a private prayer room where the group's activities would not be visible to correctional authorities. Deputy Warden Robert F. Fromhold thought such a room would create a security risk and refused the request. On several occasions, the Deputy Warden and Bowen were heard to argue loudly on this subject.

 12. On May 31, 1973, Patrick N. Curran, Warden of Holmesburg Prison, and Deputy Warden Robert F. Fromhold were murdered and Captain Leroy Taylor was stabbed and seriously wounded. Bowen and another Orthodox Muslim, Frederick Burton, had requested to see the Deputy Warden about the prayer room. Approximately one minute after they were admitted, Captain Taylor heard calls for help. Upon entering he saw the two inmates stabbing the officers; he tried to stop them, and was stabbed himself. Bowen and Burton alone were charged with the killings.

 13. The Deputy Superintendent of the Philadelphia County prisons, Edmund Lyons, was in his office at the Detention Center when he learned of the stabbings. He immediately went to Holmesburg Prison and, upon arrival, assumed control as senior prison official at the scene. He ordered the institution secured and all inmates locked in their cells.

 14. Captain Thomas McCaffrey told Lyons about the prior incidents involving the Orthodox Muslims and the recent power struggle within that group. Other correctional officers and members of the police force supplied Lyons with additional information, including that which indicated that some Orthodox Muslims on "I" Block might have been planning to instigate additional trouble to show their support of Burton and Bowen. Lyons also knew that other tensions existed between certain inmate factions and the correctional staff at Holmesburg which led him to conclude that the institution was a "powderkeg." In addition, he had reason to believe that some inmates sought revenge on the Orthodox Muslims because of the trouble that Bowen and Burton had caused.

 15. On the same day as the murders, Lyons decided to recommend to Louis S. Aytch, the Superintendent of the Philadelphia County prisons, that the ten or twelve inmates who were closely allied with and followers of Burton and Bowen on "I" Block be transferred to the Detention Center. He believed that the transfers would serve the institution's interest in security and the affected inmates' interest in safety. The transfer decision was not based upon these inmates' religion, but rather upon their association with Burton and Bowen.

 16. Agreeing with Lyons' recommendation, on May 31, 1973, Superintendent Aytch, ordered a certain twelve Orthodox Muslims on "I" Block transferred to the Detention Center. Aytch and Lyons thought the inmates were associated with Burton and Bowen. Upon Aytch's request, within forty-eight hours, these individuals were then transferred to state correctional facilities. The Superintendent had asked Phillip Bannan, Deputy Commissioner of Corrections for the Commonwealth of Pennsylvania, to accommodate these individuals in state facilities. Aytch sought these transfers because he believed that these individuals would be safer in the state institutions and that the Philadelphia institutions would be more secure without them. His action was based upon their association with the suspected murderers and not on their religious beliefs. However, the transfers to the Commonwealth facilities were made without the approval of the Court of Common Pleas.

 17. Aytch also decided to reduce the number of inmates in Philadelphia institutions by transferring some of them to state facilities. Due to the emergency situation created by the Holmesburg murders, Aytch had ample reason to believe that the Philadelphia County prison situation was explosive and that decreasing the prison population would be a means to defuse that situation. He directed the preparation of two types of transfer lists.

 18. First, on May 31, 1973, Aytch instructed Thomas Nesbitt, then Acting Chief Registrar of the Philadelphia County prison system, to compile a list of unsentenced prisoners whose names could be sent to the Court as persons proposed for transfer to state facilities. Nesbitt prepared a list of approximately 110 unsentenced prisoners.

 19. Second, on June 1, 1973, Aytch instructed several members of his staff to prepare a list of individuals who were disruptive to the normal operation of the institutions. By ordering this list he did not mean to punish these individuals. In seeking clarification of his instructions, David Owens, then a lieutenant in the Executive Office, asked whether this list should include the Muslims in the institutions and Aytch responded affirmatively. As Aytch explained at trial, and as this Court finds, by this comment he did not mean to direct Owens to place all Muslims on the list, but rather to include Muslims who also were disruptive to the prisons.

 20. Owens interpreted Aytch's instructions to mean that he was to compile a list of troublemakers. Troublemakers included both inmates guilty of disciplinary infractions and inmates who created or caused any problems in the institution. To Owens, in fact, troublemakers specifically included those inmates who officers knew caused problems, but against whom they could not obtain sufficient evidence to file formal charges. And with reference to the Muslims, Owens understood Aytch to mean that even though some troublemakers who were Muslims were already isolated from the population, they too should be transferred.

 21. Owens sought to compile a list at Holmesburg. He directed the housing officers to list those individuals who were disruptive to the institution. The officers were not instructed to distinguish between untried, unsentenced and sentenced inmates. Owens gave the same instructions to the housing officer of "D" Block, which he knew housed many "troublemakers" who were Muslim. The only block from which he did not seek a list was the psychiatric block. After receiving the housing officers' lists, he went through them and deleted the names of persons who he knew had medical problems. He then composed a master list which he submitted to Superintendent Aytch.

 22. Edward M. Forman, then Acting Warden at the House of Correction, was also instructed to compile a transfer list. He was told to include sentenced inmates, unsentenced inmates and other persons who posed security problems. He understood that when reporting inmates with security problems he was not limited to including only those who were found guilty of misconduct charges.

 23. In 1973 and today, maximum security facilities exist in Philadelphia prisons for inmates who present security problems.

 24. A final transfer list of 287 inmates was prepared. Listed were 150 untried inmates, 101 inmates who were unsentenced, 25 sentenced prisoners, 5 held for the Pennsylvania Parole Board, 4 held for the United States Marshal, 1 held for another jurisdiction and 1 serving back time.

 25. Of the 287 inmates, 28 were housed in the House of Correction, 173 in Holmesburg and 86 in the Detention Center.

 26. Only 24 of the 287 inmates listed had a record of inmate misconducts resulting in disciplinary action.

 27. A record of the inmates incarcerated in Philadelphia County prisons on June 8, 1973, shows that 445 were sentenced and 2,167 were awaiting trial. Although a few transfers occurred before that date, the bulk of the transfers took place after that time and therefore, as it is the only day for which statistical data of this kind has been made available, the Court views it as a representative day prior to the vast majority of the transfers and after the Holmesburg murders. The number of sentenced inmates, then, exceeded the total number of inmates that the City sought to transfer by 158. In addition, the record discloses that the number of sentenced inmates in Holmesburg, the House of Correction and the Detention Center surpassed the number of persons proposed for transfer from each institution. Therefore, defendants have not shown that it was necessary to transfer untried inmates to reduce the prison population. Nor have they established that the security needs of the prison could not be met by placing untried troublemakers in more restrictive confinement in Philadelphia.

 28. Although a number of Black and Orthodox Muslims were included on the list, that number has not been established; moreover, it has not been shown that that number was disproportionate to the number of Black and Orthodox Muslims in the Philadelphia County prisons at that time.

 29. On or about June 6, 1973, the defendant Aytch transmitted a Petition for Transfer of 287 names to the Court of Common Pleas, Philadelphia County. Pursuant to Pennsylvania 61 P.S. § 72, the petition was filed and acted on Ex parte, with no notice to the inmates affected or opportunity for them to be heard.

 30. On or about June 7, 1973, the Honorable D. Donald Jamieson, then President Judge of the Philadelphia Court of Common Pleas, approved the Petition, after deleting the names of 50 inmates with pending court dates. Of the 232 inmates whose names remained, 115 were pretrial detainees, 82 unsentenced, 25 sentenced, 4 held for the Pennsylvania Parole Board, 4 held for the United States Marshal, 1 held for another jurisdiction and 1 serving back time.

 31. In mid- and late June 1973, 123 inmates were transferred to state correctional facilities pursuant to the petition. In later months, 2 more inmates were transferred.

 32. The transfers were made without any prior notice to the inmates involved, their attorneys or families. The transferred inmates were not afforded an opportunity for a hearing. Their attorneys were notified of the transfers shortly after they occurred.

 33. The transferees were placed in five different state correctional institutions. These institutions and their distances from Philadelphia are:

(i) State Correctional Institution at Huntingdon-220 miles;
(ii) State Correctional Institution at Dallas-120 miles;
(iii) State Correctional Institution at Pittsburgh-300 miles;
(iv) State Correctional Institution at Rockview-201 miles;
(v) State Correctional Institution at Camp Hill-90 miles.

 34. Because of overcrowding, no inmate was transferred to the State Correctional Institution at Graterford which is the state prison closest to Philadelphia.

 35. At the state institutions, the transferees lost the freedom of movement that they had in Philadelphia County facilities. They were placed in several types of more restrictive confinement. Some inmates were housed in maximum security, often not permitted out of their cells at all; they stayed in maximum security for periods ranging from three to four days to the entire time at the state prison. Other inmates were placed in quarantine, for all or part of their stays in the state facility, where they would be allowed to leave their cells for meals and two hours of recreation per day on the cell- block. And another group was placed in a cellblock where they were permitted out of their cells for most of the day and given yard and recreational privileges.

 36. In making housing assignments, state officials did not distinguish between inmates on the basis of trial status; inmates held for trial, unsentenced inmates and sentenced prisoners were all placed in the housing conditions as described in Finding 35.

 37. A transferee's release from maximum security or quarantine confinement was often conditioned upon his accepting an institutional job. This condition was applied equally to ...

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