All inmates are limited to one visit per week. Inmates in the general population are permitted to see visitors on holidays, evenings, and weekends. Inmates in the BAU, including plaintiff, are permitted to see visitors only on Saturday mornings. These limitations do not apply to prisoners' consultations with their attorneys.
E. Security Justifications for the Challenged Conditions
Defendants have asserted that the restricted opportunities afforded plaintiff are justified by security considerations. We are obligated by the recent decision in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), to defer to the decisions of prison officials on matters of security unless substantial evidence shows that they have exaggerated their responses to the perceived security problem. See discussion Infra.
Plaintiff has testified that to insure his safety he needs an escort of two guards to accompany him to religious services and other programs where he would come into contact with other prisoners. Indeed, he has indicated that even if we order defendants to permit him to attend religious services and educational classes and to go to the law library, he would not do so unless accompanied by a two-guard escort, because of fears for his safety. Defendants do not contest plaintiff's evaluation of the necessity of a two-guard escort, except for their blanket assertion that all plaintiff's fears for his safety are insubstantial, a contention which we have rejected. Accordingly, we accept plaintiff's testimony that he cannot safely be transported to programs where he would come into contact with other prisoners unless he is accompanied by two guards.
Defendants argue that giving plaintiff the required escort would compromise the security of the institution as a whole by reducing the number of guards in the remainder of the institution. At no time are there more than 40 guards working within the institution.
Assigning a two-guard escort to plaintiff would reduce that complement by 5%, and might lead to an increased likelihood of escape, violence, pilferage, and vandalism in the institution. We find that defendants' response to this proposal has not been exaggerated, and we must defer to their judgment on the "escort" aspect of plaintiff's proposed relief.
Defendants argue further that the security of the BAU itself would be weakened if they had to open the doors frequently to transport plaintiff to programs which are conducted outside the BAU building. The chapel, prison law library, and prison school, to which plaintiff seeks personal access, are all located in a separate building from the BAU building. Superintendent Cuyler testified that some of the most dangerous inmates in the entire state prison system are housed in the BAU, and that he is concerned about the possibility of escapes.
We cannot and do not find that the defendants' concern for the risk to BAU building security that would be created by frequently transporting plaintiff from the BAU to the main prison building is exaggerated.
These problems the weakening of BAU security and the weakening of total institution security caused by diversion of guards from other areas of the institution would arise whenever plaintiff is transported from the BAU to a program in the main prison building where he would come into contact with other inmates. Since we have not found that the prison administrators' response to these problems is exaggerated, we must defer to their judgment. These security problems thus control our disposition of plaintiff's claims for personal access to communal religious services, personal access to the law library, personal attendance at educational classes, and work outside the BAU.
Defendants contend also that a security risk would be created by opening the doors of plaintiff's own cell. Their concern for that risk is plainly exaggerated. None of the relief sought by plaintiff would require defendants to open any other prisoner's cell in the BAU. Defendants have never claimed that plaintiff himself presents a security risk. To the contrary, they emphasize that he is free to rejoin the general population whenever he wishes.
Defendants argue further that giving plaintiff privileges not enjoyed by other inmates in the BAU would increase resentment against him felt by the other inmates. Although Superintendent Cuyler testified in general terms that "we have an unwritten rule . . . that we try not to do for one inmate or any group of inmates something that we can't do for our entire population," another defense witness testified that defendants have regularly granted some prisoners in the BAU more benefits, including jobs and television and radio receivers, than other prisoners in the BAU, and that no breakdown in BAU security has resulted. We note also that plaintiff seeks no privileges or opportunities which are not already enjoyed by prisoners in the general population. We find that defendants' argument concerning prisoner resentment is speculative, and that to the extent that disparate treatment of plaintiff is based on the anticipation of prisoner resentment it is an exaggerated response to any security problems that may exist.
Finally, defendants argue that their refusal to furnish the plaintiff's cell with a chair is justified by the security consideration that he might dismantle the chair and use it as a weapon. While this reasoning would be persuasive as applied to inmates who are confined in the BAU because they present security risks themselves, it is inapplicable to plaintiff. As we have noted above, defendants have never asserted that plaintiff is a security risk himself. Indeed, they have provided him with a sledge hammer and other heavy tools for use in his former job in the BAU. Consequently, we find that the denial to plaintiff of a chair in his cell is an exaggerated response to any perceived security problem.
Our analysis begins, as it must, with the recent opinion of the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). In Wolfish, the Court considered a challenge to the conditions of confinement of pretrial detainees at the Metropolitan Correctional Center (MCC), a federal facility in New York City. Much of the Court's reasoning is expressly made applicable to convicted inmates as well as to pretrial detainees. 441 U.S. at 546 n.28 & 547 n.29, 99 S. Ct. at 1878 n.28 & n.29. The Supreme Court indicated that courts should accord great deference to correctional officials' decisions about the security needs of their institutions, and enunciated a standard for judicial review of such decisions:
Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."
441 U.S. at 547-48, 99 S. Ct. at 1878-79 (emphasis added) (citations and footnotes omitted). In evaluating challenged conditions at MCC against a background of security considerations, the Court determined that the record would not support an inference that MCC officials had exaggerated their responses to security problems. 441 U.S. at 551 & 555, 99 S. Ct. at 1880 & 1882. The Court concluded that respondents in Wolfish "simply have not met their heavy burden of showing that these officials have exaggerated their response to the genuine security considerations that actuated these restrictions and practices." 441 U.S. at 561-62, 99 S. Ct. at 1886. In our findings of fact, we concluded that plaintiff had met this burden with respect to several of the practices which he challenges here.
However, such a conclusion does not resolve the matter, for in order to be entitled to relief in this action brought under 42 U.S.C. § 1983, plaintiff must establish that he has been deprived of rights secured to him by the Constitution and laws of the United States. See, e.g., Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). Plaintiff in fact maintains that he has been deprived of constitutional rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. He claims that denial of his personal access to religious services and to the law library violates his rights under the First and Fourteenth Amendments. He maintains that the denial to him of employment, idle pay, participation in educational programs, and other benefits enjoyed by inmates in the general population, solely because he is confined in the BAU for his own protection, is an unconstitutional burden on his Eighth Amendment right to be protected reasonably from violence directed at him by other inmates.
And he advances a claim under Administrative Directive 801 of the Pennsylvania Bureau of Correction, over which we exercise pendent jurisdiction.
Our task is made somewhat easier by the apparent agreement of the parties on the issues relating to plaintiff's access to religious services, use of the law library, and availability of educational programs. The defendants state that under existing prison policy, plaintiff may receive daily visits from the prison chaplain and may be given communion in his cell; that he will be provided with photocopies of materials from the prison law library for use in his cell; and that he may participate in educational programs by means of tutors and correspondence courses in his cell. Plaintiff denies that these arrangements have been made available to him in the past, but has indicated that he is willing to accept them in lieu of being transported under guard to the prison chapel, library, and school. We address these arrangements here only to explain why the constitution requires no more of defendants but permits no less.
A. Denial of Personal Access to Religious Services
Prisoners must be afforded reasonable opportunities to exercise the religious freedom guaranteed by the First and Fourteenth Amendments. Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964). In the Third Circuit, a restriction on the free exercise by prisoners of their religion is deemed reasonable only if it is the least restrictive alternative that is consistent with the maintenance of prison discipline. O'Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973); X v. Brierley, 457 F. Supp. 350 (E.D.Pa.1978) (Luongo, J.). However, in determining what the least restrictive alternative is, we must defer to prison officials' evaluation of security risks unless their response is exaggerated. In Wolfish, supra, the Supreme Court indicated that such deference was due prison administrators "even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment." 99 S. Ct. at 1878. In particular, we must defer to defendants' assessment of the security risks associated with opening the BAU and diverting guards to escort plaintiff to the main prison building, as we have explained in Part II-E, Supra. Because of these security considerations, plaintiff is not entitled to attend religious services in the prison chapel.
On the other hand, no substantial security considerations preclude plaintiff from receiving regular visits from a prison chaplain and receiving communion or mass in his cell. Prisoners in segregated confinement are entitled at least to individual religious ministration in their cells. E. g., Sweet v. South Carolina Department of Corrections, 529 F.2d 854 (4th Cir. 1975) (en banc); Diamond v. Thompson, 364 F. Supp. 659 (M.D.Ala.1973), aff'd, 523 F.2d 1201 (5th Cir. 1975). Since defendants have asserted no security justification for limiting the frequency of plaintiff's religious exercise, they must permit him to see a chaplain of the Roman Catholic faith at least as frequently as prisoners in the general population are permitted to attend religious services.
B. Denial of Personal Access to the Law Library
In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S. Ct. at 1498. See also Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975); Wade v. Kane, 448 F. Supp. 678 (E.D.Pa.1978) (Lord, C. J.), aff'd, 591 F.2d 1338 (3d Cir. 1979). The Supreme Court emphasized, however, that its decision "does not foreclose alternative means" of assuring meaningful access to the courts. 430 U.S. at 830, 97 S. Ct. 1491. The Court observed, for instance, that the constitutional requirement might be met through a program of legal assistance provided by inmates who were trained as paralegal assistants working under a lawyer's supervision. Id. at 831, 97 S. Ct. 1491.
While the Supreme Court has "consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts," Id. at 824, 97 S. Ct. at 1496, and this right was not before the Court in Wolfish, supra, in the wake of that decision we must extend some deference to the judgments of prison officials as to the security concerns that would be implicated if plaintiff were permitted to go the law library under escort. See also Procunier v. Martinez, 416 U.S. 396, 420, 94 S. Ct. 1800, 1814, 40 L. Ed. 2d 224 (1974). The security risks involved here are the same that preclude plaintiff's personal attendance at the prison chapel. Accordingly, we follow our earlier reasoning and hold that plaintiff need not be afforded personal access to the library. In such circumstances, other courts have held that the constitutional right or meaningful access to the courts is satisfied by providing legal materials to prisoners in their cells. Arsberry v. Sielaff, 586 F.2d 37, 44 (7th Cir. 1978); Frazier v. Ward, 426 F. Supp. 1354, 1371 (S.D.N.Y.1977). We agree.
In Bryan v. Werner, supra, the Third Circuit held that a regulation prohibiting an inmate-run clinic from assisting inmates in filing certain suits violated their right of access to the courts, in the absence of reasonable alternatives for obtaining access. The court stated, "If there is no alternative and readily available means of obtaining assistance of at least equal caliber, the restriction must be invalidated." 516 F.2d at 237. While the defendants may provide legal materials to plaintiff in his cell, the opportunity to do legal research which is thereby afforded him must be at least the equivalent of the opportunity that is available to an inmate who is permitted to go personally to the prison law library. We therefore hold that the legal materials provided to plaintiff in his cell must be legible, that they must be supplied to him within 48 hours of his request, and that he may request legal materials at least as frequently as he would be permitted to visit the law library if he were in the general population.
C. Denial of Employment and Idle Pay
As we have found, plaintiff has been denied the opportunity to engage in remunerative employment or, when work is not available, to receive idle pay. Defendants provided plaintiff with a job immediately before the trial of this action began, but have made no representations to him or to us that they will continue to employ him or to grant him idle pay. Defendants pay idle pay to inmates who are in the BAU for reasons other than their own protection; they deny idle pay only to inmates who are housed in the BAU because they need protection from other prisoners.
Administrative Directive 801 of the Pennsylvania Bureau of Correction includes provisions governing the treatment of prisoners who are assigned to restricted housing units such as the BAU. The Directive provides:
The inmates (in the BAU) shall have all the rights and privileges accorded to the general population except for freedom to move about the institution, freedom to engage in programs with the general population, the use of civilian clothing and the use of items specifically found by the Program Review Committee to be a security hazard.
Administrative Directive 801, Part VI.A.2 (effective October 1, 1978). The denial to plaintiff of the opportunity to work or to receive idle pay, when those benefits are afforded to prisoners in the general population, is contrary to the plain language and the facially apparent meaning of this provision.
Although we deal here with a state law claim, we must nevertheless apply to this situation the overriding principles of Bell v. Wolfish, supra. The policy of judicial deference to prison administrators stated in Wolfish is based on a recognition of the limitations on judicial competence "to deal with the increasingly urgent problems of prison administration and reform." 441 U.S. at 548 n.30, 99 S. Ct. at 1879 n.30, Quoting Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). Since that policy arises from these broad prudential considerations, it should be applied by federal courts whenever they are called upon to scrutinize the decisions of prison administrators, no matter whether their scrutiny is founded on federal or state law. Accordingly, we must defer to the judgments of the Graterford authorities concerning any applicable security problems unless we find that their response is exaggerated.
We note initially that no security justification has been advanced for denying plaintiff idle pay when he is not working. The only reason defendants have advanced for denying him idle pay is to deter prisoners in the general population from fraudulently seeking protective confinement in the BAU in order to avoid work. This reasoning is not sufficient to justify a clear violation of Administrative Directive 801. We are confident that the defendants have the power to determine whether individual applications for confinement in the BAU are spurious, and need not rely on a blanket exclusion which unnecessarily penalizes inmates who are validly confined in the BAU for their own protection. When individual determinations are readily available, the use of a broad generalization which disadvantages a constitutionally cognizable group is unnecessary. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 1113, 59 L. Ed. 2d 306 (1979) (use of gender as a proxy for financial need held unconstitutional because individual determinations of need were available). See n.16, Infra.
The assignment of plaintiff to work outside the BAU would implicate the security considerations related to taxing the guard force and weakening the building security which we have already held preclude plaintiff's personal access to the law library and to religious services. We note, too, that Administrative Directive 801 permits limitations on plaintiff's "freedom to move about the institution," and thus does not require that he be assigned to work outside the BAU. For these reasons, we do not order defendants to assign plaintiff to work outside the BAU, but only to provide him work within the BAU building when such employment is available. The record has not been developed with respect to security risks involved in assigning plaintiff work inside the BAU, or the availability of work there. It is clear, however, that no security considerations preclude plaintiff from ever being assigned remunerative work, since he was given work shortly before the first hearing in this action. Because we are uncertain what risks to security may exist, we hold only that plaintiff must be provided with remunerative employment when suitable employment is available, consistent with security precautions, and that plaintiff must be given idle pay when he is not working.
D. Denial of Other Benefits (The Unconstitutional Conditions Claim)
In addition to the denial of personal access to communal religious services and to the law library, and the denial of employment and idle pay, plaintiff complains as well of a number of other disparities between the opportunities, rights, and privileges afforded him during his confinement in the BAU, and those afforded prisoners in the general population at Graterford. In particular, he complains of disparities in the availability of educational programs, in cell furnishings, in time out of the cell, in the frequency of opportunities to shower and shave, and in the hours of visitation. We have already made factual findings with respect to these disparities.
We emphasize that plaintiff does not argue, and we do not hold, that the limited rights and privileges afforded him in themselves constitute cruel and unusual punishment. Such an argument or holding would be contrary to the clear weight of precedent. See, e.g., Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977), Cert. denied, 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978); Padgett v. Stein, 406 F. Supp. 287, 296 (M.D.Pa.1975). See also Nadeau v. Helgemoe, 561 F.2d 411 (1st Cir. 1977). However, for reasons which will appear, we believe that the denial to plaintiff of benefits which other prisoners enjoy, solely because he is in need of protection from other inmates, violates the Eighth Amendment unless the disparity is justified by considerations of institutional security. Put differently, we conclude that, absent valid security considerations, plaintiff may not be required to renounce his right to reasonable protection from other inmates as a condition of receiving the opportunities afforded to prisoners in the general population.
1. The Eighth Amendment Right to Protection from Other Inmates
Our analysis proceeds from the proposition that correctional authorities have an obligation to protect inmates from violence and assaults directed at them by other inmates. Judge Van Dusen has explained that "the right of a prisoner to be reasonably free from an atmosphere conducive of sexual assault is a constitutional right; it falls within the Eighth Amendment right against cruel and unusual punishment." United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1235 (3d Cir. 1977) (concurring opinion). Moreover, in Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973), the Fourth Circuit held:
A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.
Accord, Rudolph v. Locke, 594 F.2d 1076 (5th Cir. 1979); Little v. Walker, 552 F.2d 193 (7th Cir. 1977), Cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 530 (1978); Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 858 n.3 (4th Cir. 1975) (en banc); Finney v. Arkansas Board of Correction, 505 F.2d 194, 201 (8th Cir. 1974); Stevens v. County of Dutchess, 445 F. Supp. 89 (S.D.N.Y.1977). The danger of assault may be proved by evidence of events at other penal institutions in the area, as well as at the institution at which the prisoner is serving his sentence. Withers v. Levine, 449 F. Supp. 473, 476 (D.Md.1978).
2. The Eighth Amendment and the Doctrine of Unconstitutional Conditions
The defendants have accommodated Wojtczak's well-founded apprehension of harm by housing him in the BAU. His assignment to the BAU was made after a hearing at which he expressed his well-grounded fear of assault. We cannot say that by assigning Wojtczak to the BAU, defendants have failed to satisfy their duty of reasonable care to protect him from violence. However, as a condition of receiving this protection, the defendants have deprived Wojtczak of some rights and privileges which would have been available to him if he had remained in the general population. Defendants argue that by requesting voluntary confinement in the BAU, the plaintiff has waived the rights and privileges granted to prisoners in the general population. Although plaintiff does request continued confinement in the BAU for his own protection, we believe that, under the facts of this case, defendants' waiver argument is unsound. Defendants would condition plaintiff's enjoyment of the opportunities available to prisoners in the general population on his willingness to be reassigned to the general population. Thus defendants would require plaintiff to choose between those opportunities and his constitutional right to be protected reasonably from harm from other inmates.
The short of it is that defendants would deny plaintiff the opportunity to participate in educational programs, to have a chair in his cell, and otherwise to receive treatment equivalent to that afforded prisoners in the general population, because he has exercised his Eighth Amendment rights. This is impermissible. In Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), the Supreme Court analyzed a similar denial of benefits as follows:
For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which (it) could not command directly." Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460. Such interference with constitutional rights is impermissible.
408 U.S. at 597, 92 S. Ct. at 2697. Accord, Elrod v. Burns, 427 U.S. 347, 358-61, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality opinion); Frissell v. Rizzo, 597 F.2d 840, 845 (3d Cir.), Cert. denied, 444 U.S. 841, 100 S. Ct. 82, 62 L. Ed. 2d 52 (1979).
In fact, the antecedents of the doctrine of unconstitutional conditions are far older than the quarter-century claimed by the Perry Court. In Insurance Company v. Morse, 87 U.S. (20 Wall.) 445, 22 L. Ed. 365 (1874), the Court invalidated a Wisconsin statute which permitted foreign corporations to do business in Wisconsin only on the condition that they waive their right to remove suits filed against them in the state courts to federal court. The Court held that although the state could absolutely prohibit a foreign corporation from doing business in Wisconsin, it could not impose conditions "which are repugnant to the Constitution and laws of the United States." Id. at 456-57. The Wisconsin law was unconstitutional because it obstructed the petitioner in the exercise of his rights under Article III of the Constitution and the Judiciary Act of 1789. In Frost v. Railroad Commission, 271 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101 (1926), the Court traced the development of the doctrine during the preceding half-century, concluding:
If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.