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July 31, 1980

UNITED STATES of America, ex rel. Rayford SMITH
William ROBINSON et al.

The opinion of the court was delivered by: LORD, III

In this prisoner's civil rights action defendants Robinson and Cuyler have moved to dismiss the complaint; defendant Spaid has moved for summary judgment. Defendant William B. Robinson was Commissioner of the Bureau of Correction during the time the alleged events took place. Defendant Julius T. Cuyler is and was at all relevant times Superintendent of the State Correctional Institution at Graterford (SCIG). Defendant Spaid is and was at all times relevant to this case a staff member at SCIG, employed in the capacity of Major of the Guards.

On November 9, 1979 plaintiff's cell was routinely searched by SCIG personnel. The correctional officer who conducted the search found a number of items he deemed contraband. *fn1" In accordance with correctional institution procedures, 37 Pa.Code § 95.103 (hereinafter cited by section only), plaintiff was immediately given a copy of the misconduct report and a hearing was held on November 13, 1979 within six days of the notice of the misconduct. Defendant Spaid chaired the committee hearing, which found Smith guilty of possession of contraband and ordered him placed in segregation on B Gallery for sixty days.

 On or about November 28, 1979 plaintiff filed a pro se complaint, inartfully but urgently pleading his cause. Although rambling and somewhat confused, the complaint and Statement of Appeals, Plaintiff's Exhibit A-1, alleges that the disciplinary committee conducted a virtual farce of a hearing, concluding as it did that plaintiff should be placed in segregation for two months for possession of items that were deemed "inherently dangerous to the safety and security of the inmates and staff at SCIG." Spaid Affidavit P 2, Exhibit D.


 A 42 U.S.C. § 1983 claim requires a factual averment that shows some personal involvement by the defendants. Fialkowski v. Shapp, 405 F. Supp. 946 (E.D.Pa.1975) (Huyett, J.). In their 12(b)(6) motion to dismiss, defendants Robinson and Cuyler assert that, "No acts or failure to act has (sic) been alleged to have been performed or failed to be performed by defendants Robinson and Cuyler." Defendants note that they are mentioned only in the complaint's caption and argue that no claim has been stated upon which relief can be granted.


 Plaintiff filed a pro se complaint in late November 1979, which was docketed December 17, 1979 after his in forma pauperis petition was reviewed by Magistrate Powers. In late January, 1980 by my order an attorney was appointed to represent plaintiff; a month later that appointment was revoked and another attorney appointed. Defendants' motions were filed between these appointments. Plaintiff's second attorney thus had as an immediate duty the drafting of a response to the motions. As this review makes clear, all papers are based on plaintiff's pro se complaint.

 Pro se civil rights complaints are to be liberally construed, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), and, concomitantly, motions to dismiss prisoners' civil rights actions for failure to state a claim are subject to a very strict standard of review. United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1200-01 (3d Cir. 1973). It must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Haines v. Kerner, 404 U.S. at 521, 92 S. Ct. at 596. Insofar as nothing in plaintiff's complaint gives rise to even an inference of involvement in the allegedly unconstitutional conduct by defendant Robinson, I grant the motion to dismiss with prejudice as to him. With regard to Superintendent Cuyler, a different analysis is appropriate.


 Plaintiff cannot prove liability on defendant Cuyler's part on a respondeat superior theory. See, e.g., Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973); Adams v. Pate, 445 F.2d 105 (7th Cir. 1971). In this circuit knowledge of and acquiescence in the acts attacked can satisfy the requirement of personal involvement. Hampton, 546 F.2d at 1082; Santiago v. City of Philadelphia, 435 F. Supp. 136, 151 (E.D.Pa.1977) (Lord, C. J.); Fialkowski, supra; Downs v. Department of Public Welfare, 368 F. Supp. 454 (E.D.Pa.1963) (Green, J.). In a more recent case a district court in Pennsylvania held, "A Warden of a prison is clearly responsible for the implementation of a prison policy notwithstanding the fact that subordinates are directed to carry the policy out." Hooker v. Arnold, 454 F. Supp. 527, 529 (M.D.Pa.1978).

 In this case plaintiff has not stated his claim against defendant Cuyler with the requisite specificity. He has alleged, however, infringement of his constitutional rights by violation of regulations governing administrative procedures at SCIG. These regulations provide for direct participation and review by the Superintendent, and thereby preclude dismissal on pretrial motion by the Superintendent. Plaintiff, of course, will be held to his burden of proof at trial to adduce evidence to show liability on the part of defendant Cuyler.

 The plaintiff is granted leave to amend the complaint to assert properly a claim against defendant Cuyler.


 With regard to the relief requested, in his complaint the plaintiff asks for release from solitary confinement, an issue mooted by his return to A gallery on January 11, 1980. Spaid Exhibit C, Hearing Committee Action. However, "alleviation of an alleged constitutional violation does not moot a prisoner's claim for actual and punitive damages." United States of America ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). Plaintiff also alleged that Major Spaid had no authority to sentence him for a misconduct and therefore demanded Spaid's removal from the Hearing Committee. The regulations explicitly provide for the Major or Captain of the Guard to be the permanent member and chairperson of the Committee. Section 95.103(c). Thus this request for relief is without merit. Plaintiff also expressed a fear of reprisals by the SCIG administration for his filing of this complaint and asked for protection by the court from any retaliatory action such as a transfer. Finally, plaintiff requested that the "above defendant's (sic) stand Judgment." A more specific request for ...

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