Plaintiffs also contend that in a variety of circumstances they have been placed on the first floor of the SHU in disciplinary segregation status or temporary disciplinary segregation status without a hearing before the Institution Disciplinary Committee (IDC) within the time required by Policy Statement 7400.5D. Warden Fenton first contends that even if violations of Policy Statement 7400.5D have occurred, he is without sufficient knowledge of such violations to be held in contempt of Court. The Court is of the view that this contention of the Warden is without merit. Plaintiffs' Exhibit 289, a letter from Warden Fenton to Senator Hatfield, regarding inmate Robert Chappelle, was written in response to Chappelle's claim that members of the institution staff had engaged in acts of violence against the inmates in the Segregation Unit. In that letter, Defendant Fenton flatly states that "all inmates confined in our Administration Detention Unit and Disciplinary Segregation Unit are treated in accordance with Bureau of Prisons Policy Statement No. 7400.5D dated July 7, 1975 on "Inmate Discipline.' " Warden Fenton testified that while this letter was not written by him, he read and signed it. Thus, it is apparent that Warden Fenton contends that the Bureau of Prisons Policy on Inmate Discipline has been properly observed. To make the statement to Senator Hatfield, Warden Fenton must have had knowledge or should have had knowledge of all that occurred with regard to inmate discipline on the first floor of the SHU. Furthermore, the Court notes that with respect to the placement of an inmate in temporary disciplinary segregation status, the Warden is required to send a memorandum to the regional director setting forth the reasons for such placement. The Warden would then have responsibility to see that the Bureau of Prisons Policy Statement is complied with with respect to the conducting of the IDC hearing for those inmates. Finally, the Court notes that Warden Fenton upon the beginning of his tenure at the Lewisburg Penitentiary indicated that he essentially changed all the procedures followed in the institution. Given this far-reaching revision of administrative procedures, it cannot fairly be said that Warden Fenton had no knowledge of the manner in which those procedures were followed. Although it would probably be extreme to require Warden Fenton or his successors personally to observe every placement on the first floor for compliance with the Court's order, the Defendant has a clear responsibility to insure that the order was obeyed. It appears that Warden Fenton had sufficient knowledge of the activities in the SHU with regard to the placement of individuals in disciplinary or temporary disciplinary segregation status for responsibility to attach to him.
Paragraph 11(a)(4) of Bureau of Prisons Policy Statement 7400.5D provides that an inmate who is causing a serious disruption by threatening life or property in administrative detention and who cannot be controlled within the confines of administrative detention may be moved temporarily to disciplinary segregation pending a hearing before the IDC. However, such temporary placement in disciplinary segregation is not to exceed 3 days. On December 16, 1978, a very serious disturbance occurred in the Special Housing Unit. As a result of this disturbance, a number of inmates were that day placed in temporary disciplinary segregation status. Approximately six of the inmates were given IDC hearings on their incident reports on December 22, 1978. Approximately seven other inmates did not receive an IDC hearing before January 3, 1979. This is a clear violation of P 11(a)(4). Defendant contends that the dire emergency in the SHU excuses the failure to provide a timely IDC hearing. Furthermore, the Defendant notes that because of the seriousness of this incident, the matter was referred to the Federal Bureau of Investigation for investigation. Defendant represents that Bureau of prisons interpretations permit deferment of an IDC hearing, pending completion of an FBI investigation into the incident. As a result, Defendant contends that an IDC hearing could not proceed before the FBI completed its investigation. The Defendant submits that the Bureau of Prisons Policy Statement is not a statute or a regulation but is a statement of internal operating procedures, and as a consequence the Bureau of Prisons' interpretation of the policy statement should be upheld. It apparently is Defendant's position that referral of a matter to the FBI or the existence of an emergency, See Carlo v. Gunter, 520 F.2d 1293 (1st Cir. 1975); Morris v. Travisono, 509 F.2d 1358 (1st Cir. 1975), excuses strict compliance with the policy statement and that this interpretation of the policy statement by the Bureau of Prisons should be given controlling weight under the circumstances of this case. See Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3d Cir. 1976). Courts are obligated to give deference to an administrative agency's construction of the language of a statute and of an agency's interpretations of regulations it has drafted if the constructions or interpretation are reasonable. See Lucas Coal Company v. Interior Board of Mine Operations Appeals, 522 F.2d 581 (3d Cir. 1975). An administrative interpretation of regulations should be given controlling weight unless it is plainly erroneous or inconsistent with the regulation itself. McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858 (3d Cir. 1975). Warden Fenton submits that he is charged through the Bureau of Prisons by the Attorney General to provide among other things discipline and security within an institution and that his interpretation of the policy statement as excusing compliance in the event of an emergency or other special circumstances should be given deference by the Court.
Defendant's position is incorrect. If the Warden's or Bureau of Prisons' reading of the Policy Statement that investigation by the FBI or emergencies in the SHU excused timely IDC hearings were reasonable, then he would not be found in contempt of the Court's order. But it is the Court's view that the Defendant's interpretation of the policy statement is not reasonable and is inconsistent with the plain meaning of the regulations. Paragraph 11(a)(4) makes no mention of investigations by the FBI or of the existence of emergencies which would excuse hearings before the IDC within three days of the placement of an individual in temporary disciplinary segregation. There is no ambiguity in the policy on this issue. Mindful of the Third Circuit's direction in Concerned Residents of Buck Hill Falls to read interrelated parts of the policy statement together, the Court does not find any provision of the Policy Statement which reasonably permits the Defendant to abandon the requirements of that statement. It is true that P 7(b) notes that investigations of an incident should be suspended and that the inmate should not be questioned until the FBI completes its interviews. There is no indication that the IDC could not meet and merely place the inmate in administrative detention status pending the completion of an investigation by the FBI or the end of the emergency. If the Defendant's argument that an individual may be placed in administrative detention status on the first floor of the SHU is correct, then the Court sees no reason why an inmate could not be given the proper privileges on the first floor for an inmate in administrative detention status while the security of the institution is maintained.
Defendant has also suggested that the lateness in holding IDC hearings for inmates involved in the December 16, 1978 incident was excused because two holiday weekends, Christmas and New Years, contributed to the delay. Defendant further submits that it was difficult to secure impartial hearing officers for IDC and UDC proceedings. Like the Defendant's reasoning with respect to investigations by the FBI and emergencies in the SHU, this argument must also be rejected. The Policy Statement does not explicitly or implicitly permit the postponement of IDC hearings because of intervening holidays or the difficulty in securing impartial hearing officers. Given the language of the Policy Statement, it would be unreasonable to imply such an exception.
Defendant has argued that the policy statement is not even a regulation but rather is an internal operating procedure and as such is not a rule of law binding on the agency. See Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 38 (3d Cir. 1976). This argument must be rejected. The Court's order dated March 25, 1976 specifically incorporates in P 3 and P 5 the language of the Bureau of Prisons Policy Statement. As a result, the provisions of the Policy Statement become more than internal operating procedures, they are now part of a court order. As such, they are not as susceptible to agency interpretation and Defendant is not entitled to rely solely on the Bureau's interpretation of the policy. In the Court's view the policy should be more strictly construed under the circumstances.
There are a number of other instances in which inmates were placed on the first floor in temporary disciplinary segregation status and were not given a hearing before the IDC within the required three days. Those instances include:
(a) On September 8, 1978, inmate Joseph Bryan was moved to the first floor of the SHU and placed in temporary disciplinary segregation status without first receiving a hearing before the IDC. Bryan received a hearing before the IDC on September 20, 1978. The hearing before the IDC was allegedly delayed due to an investigation until September 18, 1978 by the FBI.