with the exception of the period from June 5, 1979 to July 3, 1979 during which Drayton was in Disciplinary Custody. With respect to that period of confinement, the record reveals the following potential procedural due process violations: (1) the Defendants' failure to provide Drayton with a hearing as to his housing custody status until June 6, 1979, one week after Drayton arrived at Camp Hill, (2) the Defendants' failure to provide Drayton with an adequate statement of the evidence relied on and the reasons for the decision to place him in Administrative Custody and (3) the Defendants' failure to provide a meaningful review of Drayton's status while he was in Administrative Custody.
In Helms v. Hewitt, 655 F.2d 487 at 500 No. 80-2393 (3d Cir. June 30, 1981), the Court of Appeals held that an inmate must be given a hearing prior to his confinement in Administrative Custody or, if exigent circumstances exist, within a reasonable time thereafter. Since at the time Drayton was received at Camp Hill on May 30, 1979 he was an unsentenced prisoner convicted of murder and was transferred because of his alleged participation in a disturbance at the Dauphin County Prison, the Court concludes that exigent circumstances existed permitting the Defendants to afford Drayton his hearing within a reasonable time after his arrival. The question is, therefore, whether 7 days is a reasonable time.
In Helms the Court of Appeals stated that Wright v. Enomoto, 462 F. Supp. 397, 404 (N.D.Ca.1976), aff'd 434 U.S. 1052, 98 S. Ct. 1223, 55 L. Ed. 2d 756 (1978) (mem.), required that a hearing be held within "72 hours of initial segregation, unless additional time is requested by the inmate." Helms v. Hewitt, 655 F.2d 487 at 498 No. 80-2393.
In Helms the Court of Appeals explained that the Supreme Court's summary affirmance of Wright could not be construed to mean that 72 hours was the longest time that a hearing could be delayed. Helms v. Hewitt, 655 F.2d 487 at 499 No. 80-2393. In determining what is a reasonable period of time, the Court deems it appropriate to look to what time limit the Bureau of Correction imposes in the case of disciplinary hearings and to the practice in the federal system.
Administrative Directive 801, Part III.D.1. provides that a hearing in such cases must be held within 6 days after the inmate is notified of the charges against him. By order dated June 27, 1979, as amended July 2, 1981, this Court directed that hearings be provided to inmates confined in temporary disciplinary segregation at the United States Penitentiary at Lewisburg within 5 days of their segregation, unless exigent circumstances exist. Jordan v. Arnold, Civil No. 75-1334. Based on these facts, the Court concludes that a delay of one week in giving Drayton his hearing was unreasonable. On this record, however, the Court cannot determine which Defendants are responsible for the delay and Drayton, if he wishes to pursue that claim, must establish the identity of the Defendants responsible for the delay.
The June 6, 1979 report of the Program Review Committee contains an adequate statement of reasons and evidence relied on to satisfy the procedural requirements of Wolff. Specifically, the notice states that Drayton was transferred from Dauphin County Prison following a disturbance there, that he had been convicted of first degree murder, and had additional charges pending against him in New Jersey. This statement adequately informed Drayton of the reasons for his placement in Administrative Custody. This conclusion is of little comfort to the Defendants because substantively those reasons are not sufficient to warrant confinement in Administrative Custody.
Although Administrative Directive 801 Part V.A provides that Administrative Custody is for inmates requiring closer supervision than is provided in general population and Part VI.A.1. provides that the purpose of placing an inmate in Administrative Custody is to maintain the safety of the institution by segregating an individual who poses a threat to the other inmates or to the staff, those general provisions are qualified by the specific requirements of Part IV.B.1, 2 and 3 referred to above. The statement of reasons given by the PRC and the affidavit of the Warden of the Dauphin County Prison fail to establish that Drayton committed a Class 1 Misconduct, was in investigative status or requested confinement in segregation. Indeed, the Defendants have not sought to justify Drayton's confinement in Administrative Custody on any of those grounds. While in the absence of Administrative Directive 801 the reasons relied on by the Defendants may have been sufficient to warrant placing Drayton in Administrative Custody, see Kelly v. Brewer, 525 F.2d 394, 400 (8th Cir. 1975), Administrative Directive 801 limits the discretion that the Defendants otherwise might have enjoyed and prevents them from confining an inmate in Administrative Custody unless one of the three criteria are met. Helms v. Hewitt, 655 F.2d 487 at 496 n.7 No. 80-2393. The only other provision relating to Administrative Custody of which the Court is aware is Administrative Directive 004 which is applicable only when the State Police are notified of a condition in the institution. The Defendants in this case do not purport to rely on that directive. The undisputed facts of record establish that Drayton was placed in Administrative Custody for reasons not permitted under applicable regulations and, therefore, his initial placement in that status on May 30, 1979, was in violation of his right to due process of law. The Defendants responsible for that deprivation are Bell and Marks, the members of the PRC, and Patton, who approved the decision.
Having determined that Drayton's initial placement in Administrative Custody was improper, the Court will now consider Drayton's contention that he was entitled to further procedural protection during the time he was in that status. In Wright v. Enomoto, 462 F. Supp. 397, 403-04 (N.D.Ca.1976), aff'd on other grounds, 434 U.S. 1052, 98 S. Ct. 1223, 55 L. Ed. 2d 756 (1978) (mem.), the Court indicated that the deprivation suffered by a prisoner placed in administrative segregation could be greater than that faced by an inmate placed in disciplinary custody because the term in administrative custody was potentially unlimited whereas a disciplinary custody term was limited usually to a maximum of 10 days. The Court, however, did not reach that question and, consequently, the Supreme Court's summary affirmance does not constitute the Supreme Court's adjudication on the question. Similarly, in Helms the Court of Appeals was not faced with the question of the additional protections, if any, to which a prisoner in Administrative Custody was entitled. The Court, however, did observe "we express our belief that indeterminate periods of confinement in Administrative Custody may require even greater protections (not unlike, perhaps, existing status reviews) than fixed term detention in Disciplinary Custody." Helms v. Hewitt, 655 F.2d 487 at 499 n.10 No. 80-2393.
Other courts, however, have reached the issue. In United States ex rel. Hoss v. Cuyler, 452 F. Supp. 256, 293 (E.D.Pa.1978), the Court held that an inmate confined in Administrative Custody in a behavioral adjustment unit was entitled to a periodic review according to objective criteria so that he could be released when such confinement was no longer authorized under the appropriate regulations. The reasons such periodic reviews are necessary are readily apparent. In Mathews v. Eldredge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), the Supreme Court stated that one factor to be considered in determining the amount of process due is the degree to which it would reduce the risk of an erroneous determination. In this case, Drayton could be confined in Administrative Custody only if he met one or more of the criteria under Administrative Directive 801. In the absence of periodic reviews of his status, there was a grave risk that he would be confined in Administrative Custody longer than there was a need. In order to reduce that risk, the Court concludes that due process requires a periodic review of Drayton's status in Administrative Custody followed by a written statement of the evidence relied on and the reasons he was continued in Administrative Custody. Accord Kelly v. Brewer, 525 F.2d 394, 400 (8th Cir. 1975); Grandison v. Howard, Civil No. 78-1318 (W.D.Pa. October 8, 1980); Mims v. Shapp, 457 F. Supp. 247, 252 (W.D.Pa.1978); U. S. ex rel. Hoss v. Cuyler, 452 F. Supp. at 293.
The Bureau of Correction itself requires such hearings. Part III.G.4 of Administrative Directive 801 provides that the Program Review Committee shall interview an inmate in Administrative Custody at least once every thirty days.
The determination of whether continued confinement is warranted will be based upon a review of the counsellor's notes and recommendations, psychological and psychiatric reports when available, recommendations of other staff and their written observations regarding (the inmate's) attitude and actions and his attitude and actions during the interview.... When the Program Review Committee determines that continued confinement is warranted, the inmate shall be given a written statement of the decision and its rationale.