The opinion of the court was delivered by: HUYETT
Defendants have moved for summary judgment based on the complaint, plaintiffs' answers to interrogatories and affidavits of the parties. Plaintiffs oppose the motion, arguing that there exist genuine issues of material fact and that defendants are not entitled to summary judgment as a matter of law. Although defendants have not answered the complaint, their motion raises a defense of qualified good faith immunity to plaintiffs' claims. Pursuant to the reasoning set forth below, the defendants' motion shall be granted in part and denied in part.
Denial of Due Process Claims
Plaintiffs claim that their confinement during the lockup violated their due process rights under the Fourteenth Amendment in that the confinement itself was arbitrary and denied them their reasonable expectation of liberty. However, "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948). Nevertheless, "though his basic rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime." Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935 (1974). Thus, in determining the propriety of plaintiffs' due process claims, an accommodation must be made between institutional needs and objectives and the provisions of the constitution which are of general application. See id. at 556, 94 S. Ct. at 2974.
The due process clause of the Fourteenth Amendment is triggered only if plaintiffs were deprived of a liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548 (1972). Any change in conditions of confinement having a substantial adverse impact on the prisoner is sufficient to invoke protection of the due process clause. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1975). As I stated in Saunders v. Packel, 436 F. Supp. 618 (E.D.Pa.1977), prisoners have a "reasonable expectation rooted in the past practices of state prison authorities that they will not be confined indiscriminately in their cells, absent some situation that poses a danger to the smooth functioning of the prison." Id. at 623. However, "central to all other correctional goals is the institutional consideration of internal security within the correction facilities themselves. It is in light of this legitimate penal objective that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners." Pell v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1973). Prisoners, therefore, must also expect that their limited freedom will be curtailed at times of indisputable crisis, and for reasonable periods thereafter for precautionary measures. Saunders v. Packel, supra at 622.
Although a court might disagree with the choice of means employed to safeguard prison security, it should not second guess the expert administrators on matters about which the latter are better informed. Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S. Ct. 1861, 1878-79, 60 L. Ed. 2d 447 (1979). Because the realities of running a prison are complex and difficult, in the absence of substantial evidence to indicate that officials have exaggerated their response to the need for security, a wide ranging deference should be accorded the decision of prison administrators by the courts. Jones v. North Carolina Prisoners ' Labor Union, 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1976). As I stated in a case strikingly similar to the one at bar:
(u)pon discovering that a prison employee had been stabbed to death apparently by inmates, the warden had a valid reason for locking up the entire prison population. At a minimum, there was a serious crime crying to be solved and fast action was vital. Isolation of the inmates would facilitate the investigation which, for all the prison officials knew, could have signaled an incipient insurrection. Moreover, by locking prisoners in their cells, more manpower could be devoted to the immediate task of evaluating the situation and beginning the investigation. Also, the decision was made to commence a cell search for weapons, such as the one used to kill the cook, and other contraband, and Fourteenth Amendment notions of fundamental fairness and rational decision making are no impediment to the warden's decision to accomplish that search by locking all prisoners in their cells until the search was completed.
Saunders v. Packel, supra at 623. Similarly, defendant's actions in ordering the lockup sub judice were reasonable responses to an emergency situation. Thus, in light of the deference due defendants in this regard, and the balance between legitimate penal objectives and the dictates of the constitution which the cases require me to strike, I conclude that plaintiffs' due process rights were not violated because of the lockup involved in this case. Thus their due process claims fail as a matter of law.
Plaintiffs claim that the fact of their confinement during the lockup as well as the conditions of that confinement constitute cruel and unusual punishment in violation of the Eighth Amendment. However, "[persuasive] authority teaches that segregated confinement in solitary or maximum security is not per se banned by the Eighth Amendment." Burns v. Swenson, 430 F.2d 771, 777 (8th Cir. 1970) and cases cited therein. It follows, therefore, that plaintiffs' Eighth Amendment claim based on the fact of their confinement must fail as a matter of law.
Plaintiffs' Eighth Amendment claim based on the conditions of the lockup requires further consideration. I note initially that it is not disputed that during the lockup plaintiffs were denied visitation, phone calls, showers, exercise, change of clothes and bedding, legal and medical services and religious and educational activities. Nor is it denied that the service of meals and hygenic conditions of the cells during this period fell below the prison norm.
Courts have utilized various tests to determine whether treatment of a prisoner violates the Eighth Amendment. Such violations have been found, for instance, where conditions can be described as foul, inhuman and violative of basic concepts of decency, Wright v. McMann, 387 F.2d 519, 526 (2d Cir. 1967), or as "physical or mental abuse or corporal punishment of such base, inhuman and barbaric proportions so as to shock a court's sensibilities." Burns v. Swenson, supra at 778. See also McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), cert. dismissed, 423 U.S. 923, 96 S. Ct. 264, 46 L. Ed. 2d 249 (1976) (Eighth Amendment violation found where prisoner subjected to barbaric conditions "threatening an inmate's sanity and severing his contacts with reality"). I have examined the conditions complained of in the case at bar, and do not believe that they sink to the level of those described in the above-cited cases. To the contrary, I find the conditions here more similar to those discussed in Lovern v. Cox, 374 F. Supp. 32 (W.D.Va.1974), in which it was held that "the contentions regarding unsanitary maintenance and upkeep do not constitute conditions so hazardous to life, health or safety as to warrant the intervention of a federal court." Id. at 35. Useful analogies can also be drawn to Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 and Oswald v. Sostre, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972) (marginally adequate diet, availability in cell of rudimentary implements of personal hygiene, ability to communicate with other prisoners, ...