The opinion of the court was delivered by: BECKER
This case raises the interesting question whether a long-term prison inmate segregated in a maximum-security housing unit at his own request for his own protection can nonetheless require prison authorities to afford him certain of the rights and privileges of inmates in the general prison population. For reasons which will in due course appear, we hold that, at least in some respects, he can.
Plaintiff is an inmate at the State Correctional Institution at Graterford, Pennsylvania (Graterford). In August, 1975, he was arrested on the aggravated morals charges described below and held in Montgomery County Jail in lieu of bail. The record indicates that at some point he spent a short time in Bucks County Prison. On February 26, 1976, following his conviction, he was transferred to Graterford. After expressing fears for his physical safety occasioned by the widespread publicity given his offenses, he was assigned to a housing unit known as the Behavioral Adjustment Unit (BAU).
The BAU is a maximum security unit used to segregate from the rest of the population those inmates who are violent, mentally ill, or need protection. Plaintiff is now and for a long time has been assigned to the BAU for his own protection.
Plaintiff does not seek to be transferred from the BAU. To the contrary, he requests that we order his continued assignment to the BAU. Rather, he challenges in this suit the following conditions and privileges afforded him as a BAU-assignee: (1) the fact that his cell has not been equipped with a chair, desk, or table, although cells in the general population are so equipped; (2) the fact that he has not been provided with any program for rehabilitation, while inmates in the general population have been provided with such programs; (3) his inability to leave his cell for more than one out of every twenty-four hours, although inmates in the general population are allowed more time out of their cells; (4) the fact that he has not been allowed to perform remunerative work, while inmates in the general population have been allowed such work; (5) the denial to him of the "idle pay" which is awarded to all inmates who are unable to work, except inmates like plaintiff who are confined in the BAU for their own protection; (6) the fact that he has been permitted to shower and shave only three times weekly, whereas inmates in the general population may shower and shave daily; (7) the denial of visitation rights equivalent to those afforded to prisoners in the general population; (8) the fact that he has not been permitted to attend weekly religious services of the Roman Catholic faith; and (9) the fact that he has not been permitted to do legal research in the prison law library.
Plaintiff brought this action under 42 U.S.C. § 1983 for injunctive relief and damages
for alleged deprivation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution.
He has also claimed that defendants violated Administrative Directive 801 of the Pennsylvania Bureau of Correction. After discovery, plaintiff moved for a preliminary injunction. By stipulation of counsel, we have treated that motion in all respects as a motion for a permanent injunction, See Fed.R.Civ.P. 65(a) (2), and have held a final hearing. Plaintiff requests a permanent injunction ordering defendants to permit him to attend weekly religious services; to allow him to visit the law library, to attend educational programs, and to receive visitors at the same times and with the same frequency as prisoners in the general population; to assign him remunerative work on the same terms as inmates in the general population; to award him "idle pay" when work is unavailable; to permit him to shower and shave daily; to furnish his cell with a desk and a chair; and to maintain his security by continuing to assign him to the BAU.
In terms of legal theory, plaintiff argues that he has been denied his constitutional rights of the free exercise of his religion and of meaningful access to the courts because he has been deprived of personal access to communal religious services in the prison chapel and to the prison law library. He argues that he has been deprived of equal protection of the laws in that other inmates enjoy greater rights and privileges than he does. He claims, further, that the denial to him of rights and privileges which other inmates enjoy violates Administrative Directive 801 of the Pennsylvania Bureau. In addition, plaintiff makes the following argument bottomed on the Eighth Amendment proscription of "cruel and unusual punishment." He contends that since his fear for his safety has an objective basis, which defendants recognized by assigning him to the BAU, defendants have a constitutional duty, included within the Eighth Amendment, to exercise reasonable care to protect him from violence directed at him by other inmates, and that while they have discharged that duty by assigning him to the BAU, they have improperly conditioned his enjoyment of the opportunities, rights, and privileges available to inmates in the general population on renunciation of his Eighth Amendment right to protection. We refer to this as plaintiff's unconstitutional conditions claim.
Defendant Cuyler is the Superintendent of the State Correctional Institution at Graterford. The other twenty defendants are prison officials, members of the medical and psychological staff, and guards at Graterford. Defendants submit that plaintiff's fear for his safety is a mere subjective belief, without an objective basis. Moreover, they note that plaintiff is free to rejoin the general prison population at any time, and then will enjoy all the opportunities, rights, and privileges of the inmates in the general population. They argue that by requesting confinement in the BAU, plaintiff has waived those opportunities, rights, and privileges, and in any event, that the treatment afforded him during his confinement in the BAU meets all constitutional minima. Defendants also take issue with certain of plaintiff's factual allegations concerning the opportunities afforded him and the opportunities afforded prisoners in the general population.
They argue that the disparate treatment of plaintiff is necessary to the maintenance of prison security. And finally they disagree with plaintiff's application of constitutional theory.
We have found this to be a difficult and troubling case, in which the arguments of both the plaintiff and the defendants have considerable appeal. Upon analysis and reflection, and for reasons that will appear in Part III of this opinion, we have determined that plaintiff's Eighth Amendment argument is meritorious. While it has been a source of concern, we are satisfied that our decision accommodates fully the policy of broad deference to prison officials which was enunciated most recently in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). In Wolfish, the Supreme Court held that courts must defer to the judgments of prison officials concerning prison security unless the officials have exaggerated their response to perceived security considerations. 441 U.S. at 548 & 551 & 555 & 561-62, 99 S. Ct. at 1878-79 & 1880 & 1882 & 1886. We are mindful of our obligation to defer to prison administrators, but we find that certain of the practices challenged in this action were the result of exaggerated responses to security considerations.
Our first task is to make findings of fact on the following matters: the nature of plaintiff's criminal convictions and attendant publicity; the general layout of the prison; the threats on plaintiff's life and his placement and retention in the BAU; the conditions of plaintiff's confinement in the BAU; and the security justifications for the challenged conditions. We will then turn to our discussion of the applicable law. This opinion constitutes our findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a).
A. The Nature of Plaintiff's Criminal Convictions and Attendant Publicity
In August, 1975, plaintiff was arrested on charges of burglary, felonious restraint, corruption of minors, and deviate sexual intercourse. These charges were the result of complaints filed on behalf of eight young girls ranging in age from nine to thirteen years. He was subsequently convicted of the rapes of three of those girls. The first conviction was in Montgomery County, the second conviction was in Philadelphia, and the most recent conviction, in November, 1978, occurred in Bucks County. As a result of these convictions, plaintiff is serving a total sentence of forty to eighty years.
The publicity accompanying plaintiff's arrest and convictions was extensive. All the major Philadelphia daily newspapers and TV channels covered his arrest.
Plaintiff testified that the publicity made it necessary for his wife to be provided with police protection and for his son to be withdrawn from school.
Prisoners in the general population at Graterford have access to television, radio, and newspapers. It is highly probable, and not disputed in the record, that at least some inmates at Graterford know of the nature of plaintiff's offenses.
Within the prison walls at Graterford there are three buildings: the main building, the powerhouse, and the BAU. The main building encompasses five cell blocks as well as the chapel, school, law library, and visitation room. The prison kitchen, auditorium, hospital, administrative offices, and industrial plant are also located in the main building. Inmates in the general population are housed in the five cell blocks. Cells remain unlocked between the hours of 6 A.M. and 4 P.M., and from 5 P.M. until 9 P.M., during which time the inmates are free to move about the cell block.
In the rear of one cell block is an area consisting of fifty cells separated from the rest of the block by cyclone fencing and a gate. This area is known as B-gallery. It houses those inmates who require closer security than is available in the general population. Inmates there are locked in their cells except for periods of recreation in the yard, meals in the dining room, medical treatment, and visits. B-gallery inmates have contact with each other during recreation and meals, and may also come in contact with the general population in moving back and forth from these places. B-gallery inmates are assigned work in B-gallery when available. Inmates who have committed themselves to B-gallery are permitted to go to the chapel and the law library, but are not escorted by guards if they choose to go there.
The BAU is located in a separate building and constitutes the most secure housing at Graterford. BAU inmates are locked in their cells approximately twenty-three hours per day. Meals are served to them in their cells, and the inmates are not in physical contact with one another during recreation periods in the yard. Prisoners in the BAU ordinarily leave the BAU building only to go to the visitation room in the main building to see attorneys or other visitors. In such instances, prisoners are taken from the BAU to the main building in a station wagon and are escorted by two guards.
The BAU houses three categories of inmates: (1) those assigned for disciplinary reasons; (2) those who are severely mentally disturbed; and (3) those who are there for their own protection. Plaintiff falls into this latter category. At the time of trial, three other inmates were housed in the BAU for their own protection. Superintendent Cuyler testified that this was a "relatively high number" compared to the usual number of inmates lodged in the BAU for their own protection.
Plaintiff's first incarceration was in Montgomery County Prison when he was awaiting trial. Plaintiff testified that while he was lodged there, other prisoners threw firebombs, burning newspapers, and cigarettes into his cell, and that many verbal threats were directed at him. He described these threats:
Well, these were prisoners, inmates. We'll get you. We can get you. They used the terms baby raper, child molester.
As a result, he was segregated from the other prisoners at Montgomery County Jail. At Bucks County Prison, prior to transfer to Graterford, the word reached him through another inmate that there were inmates "waiting for him" at Graterford.
These occurrences formed the basis for plaintiff's request for protection upon arrival at Graterford. At a hearing before defendants Mauger, Schildt, and Spaid, he told them that numerous attempts had been made on his life because of the nature of the crimes for which he had been sentenced, and that he was concerned about his physical safety at Graterford. He was then assigned to the BAU.
Plaintiff contends that initially he did not specifically request placement in the BAU. Defendants claim that he did request such placement. There is no dispute, however, that plaintiff does not now wish to be transferred out of the BAU, but wishes to remain there. Defendants point out and plaintiff concedes that he is free to go to the general population or to B-gallery at any time. Defendants note that most self-protection cases are housed in B-gallery. However, plaintiff fears that he cannot be adequately protected in these areas where contact among inmates is less restricted, and therefore chooses to remain in the BAU. Indeed, in May 1977 plaintiff was removed from the BAU and placed in B-gallery.
After approximately two hours on B-gallery, plaintiff requested the guards to return him to the BAU, and he was returned there. Plaintiff testified that during those two hours, he was threatened by two prisoners in the main portion of "B" cell block, who called him by name and said that they could "get" to him. During that scant two hours, either those prisoners or two others called plaintiff a "baby-raper" and "child molester."
Plaintiff also testified that he has been threatened even while in the BAU. He testified that he has heard prisoners in the yard call his name and threaten him with death. We credit that testimony. Plaintiff was thus subjectively in fear. We also find that there was an objective basis for that fear. If plaintiff were transferred out of the BAU, other prisoners would indeed be able to "get" to him. Moreover, plaintiff's contention that he has reason to fear for his safety was supported by the testimony of an expert witness.
Dr. Edward V. Guy, the Director of Psychiatric Services for the Philadelphia prison system, testified that the lowest status among prison inmates is generally reserved for persons convicted of sex crimes against children. He testified that he had found "a very active type of a threatening attitude" toward such inmates among other inmates, and that in the Philadelphia prison system, a person convicted of a sex crime against a child would "automatically" be housed differently from the general population. While other inmates there are housed in dormitories, sex offenders against children are housed initially in individual cells with some access to other inmates. Dr. Guy testified that "almost invariably within a day or two . . . once the threats begin," such offenders request transfer to a maximum security cell.
We find Dr. Guy's testimony as to conditions and practices in the Philadelphia prison system, and the plaintiff's own testimony as to his own experiences in other prisons in Eastern Pennsylvania, to be probative of the reasonableness of plaintiff's apprehension of danger to his physical security at Graterford. See Withers v. Levine, 449 F. Supp. 473, 476 (D.Md.1978). Indeed, that apprehension was acknowledged by the defendants, who assigned plaintiff to the BAU in response to his expressed fears of physical assault by other inmates, and who have never attempted to transfer him from the BAU, with the possible exception of the two hours he spent on B-gallery.
D. The Conditions of Plaintiff's Confinement in the BAU
The basis of plaintiff's complaint is the disparity between the opportunities and programs available to prisoners in the general population at Graterford, and the restricted opportunities available to him in the BAU. He presented evidence at the hearing of disparities in access to religious services, access to the prison law library, the availability of educational programs, employment and idle pay, cell furniture, time out of lock-up, personal hygiene, and access to visitors. We consider each of these topics in turn.
1. Access to Religious Services
Inmates in the general population and in B-gallery are permitted to attend weekly religious services in the prison chapel, located in the main prison building. Plaintiff is a Roman Catholic who regularly attended Mass before his incarceration. During his confinement in the BAU, plaintiff has not been permitted to attend communal religious services.
Plaintiff has requested that defendants permit him to receive communion in the BAU once a week. He testified that a priest had visited him in the BAU only sporadically and had given him communion at times varying from approximately once a month to once every four months. Defendants state that although plaintiff is not permitted to attend services with other prisoners for security reasons, he may receive daily chaplain visits and be given communion in his cell. Plaintiff testified at the hearing that he was willing ...