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October 17, 1979

William EDWARDS, Plaintiff,
B. WHITE et al., Defendants

The opinion of the court was delivered by: MUIR

Edwards, an inmate at the State Correctional Institution at Rockview, Pennsylvania, filed this action pursuant to 42 U.S.C. ยง 1983 alleging that the defendants White, Caskey, Day, Wilson, McCullough, Beard and Mazurkiewicz violated his constitutional rights by subjecting him to disciplinary sanctions because of his alleged possession of a petition seeking the removal of a correctional officer at Rockview. On June 12, 1979, Defendants filed a motion for summary judgment accompanied by a brief. On June 27, 1979, Plaintiff filed a cross motion for summary judgment accompanied by a brief. On that same day, Plaintiff filed a motion to strike affidavits that the Defendants had submitted in support of their motion for summary judgment. On August 3, 1979, Defendants filed briefs in opposition to Plaintiff's motions for summary judgment and to strike Defendants' affidavits. On August 23, 1979, Plaintiff filed reply briefs with respect to both motions. The filings on August 3, 1979 and August 23, 1979 were timely pursuant to an order dated August 16, 1979 which extended the time in which to file briefs. For the reasons which follow, the Court will deny Defendants' motion for summary judgment and will grant Plaintiff's motion in part and deny it in part.

On March 14, 1979, Defendant White and three other correctional officers discovered a paper in Edwards' possession which Defendants maintain was a petition addressed to William B. Robinson, Commissioner of Corrections for the Commonwealth of Pennsylvania. In view of the fact that Plaintiff denies that the paper was a petition, the Court will set forth the contents of the paper in substantially the form in which it exists.

"Subj: Mr. Jeffrey Beard, Deputy Superintendent for Treatment.
TO: Mr. William B. Robinson, (Commissioner)
FROM: The Residents at State Correctional Institution,
As residents at S.C.I.R., We, the undersigned, Request the removal of Mr. Jeffrey Beard from the administrative staff of S.C.I.R. We welcome the opportunity for our representative's (sic) to discuss our reasons for this request."

 Beneath this paragraph were three columns, each containing 21 blank lines. At the time the Defendants confiscated the paper from Edwards, no signatures had been affixed thereto.

 Edwards was charged with conspiracy to disrupt normal institution routine, possession of contraband, and indirectly threatening an employee. On March 14, 1979, Edwards was given a copy of the misconduct report which set forth the three charges as well as a brief description of the circumstances surrounding the seizure of the paper. A hearing on the charges was held on March 16, 1979 before a Hearing Review Committee (HRC). Edwards admitted having the paper in his possession, but maintained that he had found it in the laundry, had picked it up, placed it back on a bench, and began to do his work in the laundry. On the basis of correctional officer White's report that he took the petition from Edwards' hand, the HRC found Edwards guilty of all three charges. The HRC imposed a penalty of confinement in disciplinary custody cells for a period not to exceed six months, a change in custody from outside honor status to disciplinary custody, loss of honor status for 180 days, and loss of varsity athletic privileges for six months.

 On March 26, 1979, the HRC's finding was reviewed by the Program Review Committee (PRC). The PRC was composed of defendant Beard, who was the object of the petition found in Edwards' possession, and defendants McCullough and Wilson. The PRC sustained the HRC's finding of guilt but reduced Edwards' punishment. He was released from disciplinary custody on March 27, 1979 and his status was improved to "limited outside." On March 27, 1979, defendant Mazurkiewicz, reviewed the PRC's decision and sustained its decision to affirm the HRC's finding.

 Edwards' complaint attacks practically every facet of the disciplinary procedure. He alleges that the HRC did not have sufficient evidence before it to convict him of the three charges, that defendant Beard's presence on the PRC denied him an impartial tribunal, that the Defendants could not constitutionally prohibit the possession and circulation of a petition, and that the Defendants' regulations purporting to prohibit the possession of a petition are unconstitutionally vague. Edwards also alleges that he was not provided with adequate notice of the charges he would face at the HRC hearing and that Defendants' regulations against petitioning abridged his right to access to the Courts.

 The Court is in agreement with a number of Edwards' contentions. It is the Court's view that Beard's presence on the PRC denied Edwards an impartial tribunal, that there are not sufficient facts appearing in the record of the HRC hearing to justify Edwards' conviction for conspiracy to disrupt institution routine and for threatening an employee and that the Defendants' regulations prohibiting the possession of a petition are unconstitutionally overbroad. The Court, therefore, will issue an order enjoining Defendants from enforcing their present regulation against petitions.

 Although Edwards claims that he did not receive adequate notice of the charges he was to answer before the HRC, the Court concludes that the notice provided to Edwards complies with the requirements of Wolff v. McDonnell, 418 U.S. 539, 563-64, 94 S. Ct. 2963, 2978-2979, 41 L. Ed. 2d 935 (1974). The notice Edwards received on March 14, 1979 informed him of the charges and their underlying factual basis. This is all Wolff requires. There was no need for the notice to contain information relating to the Defendants' reasons for prohibiting petitions or relating to a threatened strike by correctional officers. While these factors may have motivated the Defendants to charge Edwards, they did not form the factual basis of the charge and would not have aided Edwards in his defense if he had been aware of them. In order to escape punishment, Edwards had to disprove the allegations levelled against him that he possessed the petition, that he conspired to disrupt the institution, and that he threatened Beard. The information provided by the notice was sufficient for that purpose.

 The Court finds, however, that the disciplinary procedure was rendered constitutionally defective by Beard's membership on the PRC which reviewed the finding of the HRC. Affidavits submitted by Defendants Beard and McCullough and by Reverend Frederick H. Bigelow, who was present at the PRC meeting, state that Beard did not participate in the PRC's decision. Plaintiff, in his motion to strike affidavits, claims that this attempt to contradict form JBC-141 D Part III, on which the PRC decision is recorded and which shows that Beard was a member of the PRC, violates the parol evidence rule. The parol evidence rule is inapplicable. Whatever application the parol evidence rule may have outside the field of contracts, it is the Court's view that the affidavits do not contradict the statement in Form JBC-141 that Beard was a member of the committee. They merely show that he did not participate in the committee's decision. Plaintiff's motion to strike the affidavit of Reverend Bigelow will be denied.

 The undisputed fact that Beard was present at the PRC hearing of Edwards' appeal and during its deliberations is sufficient to invalidate the disciplinary proceedings. In Braxton v. Carlson, 483 F.2d 933, 936 (3d Cir. 1973), the Court of Appeals for this Circuit held that disciplinary proceedings resulting in segregation must comply with the due process provisions of the constitution. In Meyers v. Alldredge, 492 F.2d 296, 305 (3d Cir. 1974), the Court of Appeals held that due process requires that disciplinary proceedings be conducted before an impartial tribunal. In Myers, the Court of Appeals held that an associate warden who was substantially involved in the dispute which gave rise to the disciplinary proceedings in question could not serve on the disciplinary committees considering the claims at issue. Beard was substantially involved in the incident giving rise to Edwards' disciplinary proceeding because he was the individual named in the petition and because one of the charges Edwards faced was that of threatening Beard. Accepting as true Defendants' contention that Beard did not participate in the PRC's decision, the Court nonetheless concludes that his presence on the ...

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