that the claims are dismissed only insofar as plaintiff seeks to establish that his conviction was invalid because he was incompetent to enter a valid guilty plea. There remains plaintiff's § 1983 damage claims against defendants for using undue force in removing him from his cell and transporting him to the courthouse on July 14. These claims, which are raised in causes other than I-IV, are appropriately considered in this action with the limitation that plaintiff will not be permitted to place in issue his contention that he was rendered incompetent to participate intelligently in the criminal trial as a result of the use of force.
II. Individual Defendants
Defendants Roth, McCoy, Carlin, Kilgonnon, Andries, Palmer, Alterman, and Malloy move for summary judgment on all claims on the ground that there is no material issue of fact as to their liability for the events in issue.
Defendants Andries, Palmer, Mickiewicz, Alterman and Malloy afforded medical treatment to plaintiff at MCP. Plaintiff, through counsel, now concedes that he has not stated a claim against these defendants, accordingly, their motion for summary judgment will be granted.
Defendant Roth is the Warden of MCP and defendants McCoy, Carlin and Kilgonnon are assistant wardens of that institution. These defendants will hereinafter be referred to as the supervisory defendants. They contend that there is nothing in this record establishing their personal involvement in the events in issue and that plaintiff has, therefore, failed to state a claim against them.
It is well settled in this Circuit that prison supervisory personnel cannot be held liable under § 1983 unless there has been some showing that they were either directly involved in, or had knowledge of and acquiesced in, the constitutional violations. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976); United States ex rel Smith v. Robinson, 495 F. Supp. 696, 698 (E.D.Pa.1980).
(a) The June 24 Incident
After conducting discovery in the instant case, plaintiff has failed to set forth any factual support linking either Roth, McCoy, Carlin or Kilgonnon to the events on June 24, when plaintiff contends that undue force was used against him. Accordingly, I will grant those defendants' motions for summary judgment on plaintiff's claim that he was subjected to undue force on June 24.
(b) Lack of Adequate Medical Care
Since plaintiff has conceded that he has failed to state a claim against any medical personnel, it is doubtful that he still seeks to press his claims of improper treatment against the supervisory personnel. Assuming that he does still seek to recover against the supervisory personnel on that basis, there is nothing in this record to indicate that the supervisory defendants deliberately or intentionally prevented plaintiff from receiving medical aid or that they knew that he was receiving inadequate care. Accordingly, the supervisory defendants' motion for summary judgment will be granted as to plaintiff's claim that he was subjected to cruel and unusual punishment by reason of inadequate medical care. See Hampton v. Holmesburg Prison Officials, supra.
(c) The July 14 Incident
Turning to the July 14 incident, my ruling that plaintiff cannot, in this proceeding, attempt to establish that he was rendered incompetent limits his claim to one for damages for the use of undue force in removing him from his cell. Nothing in this record suggests that defendants McCoy, Carlin, and Kilgonnon had any involvement in that event and their motion for summary judgment will be granted.
Warden Roth's situation differs somewhat. From his answers to interrogatories, it is apparent that he was informed of Hodgin's demand for a wheel chair for his trip to the prison and of the fact that Hodgin was not cooperating with the prison guards. After consulting with medical authorities at the prison, Roth ordered the guards to have plaintiff ready for court and to release him to the Sheriff. (Roth's Answer to Plaintiff's Interrogatories, 2d Set No. 7, Document 20). Notwithstanding Roth's knowledge of the general situation, there is no material issue of fact as to Roth's liability for the use of undue force against plaintiff. At most, Roth's answers show only that he gave the order to have plaintiff ready for court, there is nothing to support a finding that Roth was involved in, or knew of, and acquiesced in the alleged use of undue force against plaintiff on July 14, 1980. Accordingly, I will also grant Warden Roth's motion for summary judgment on plaintiff's claim that he was subjected to undue force on July 14.
(d) The Due Process Claim
In their motion, the supervisory defendants have not responded to plaintiff's claim that he was denied due process when he was kept in continuous confinement after the June 24 incident without being afforded a hearing. Assuming for the moment that plaintiff's due process rights were violated,
Roth, by virtue of his position as warden, is subject to suit for the asserted due process violation. See United States ex rel Smith v. Robinson, 495 F. Supp. 696, 698-699 (E.D.Pa.1980). So, too, is defendant McCoy, whose duties include responsibility for prison security, and who is also a member of the Prison Disciplinary Board which is required to afford hearings to prisoners charged with violations of prison rules. (See McCoy's Answers to Interrogatories, 2d Set, at No. 16; see also Prison Policy Statement, attached to Plaintiff's Response to Defendants' Motion for Summary Judgment.) The remaining two supervisory defendants, Kilgonnon and Carlin, have not submitted affidavits nor have they pointed to anything in the record showing that they lacked knowledge of plaintiff's continued administrative confinement without a hearing or that they lacked supervisory responsibility for that situation. Since they are assistant wardens of the prison, I cannot, on this record, say that there is no material issue of fact as to their liability for the asserted due process violation. Accordingly, I will deny the motion of these defendants for summary judgment on plaintiff's claim that his continued administrative confinement without being afforded a hearing violated his right to due process.
To summarize, plaintiff's first four causes of action (Causes I-IV) will be dismissed without prejudice on the ground that the claims made therein must be initially raised by way of habeas corpus. The motions of defendants Roth, McCoy, Kilgonnon and Carlin for summary judgment will be granted as to all claims except for plaintiff's claim that he was denied due process by being kept in administrative confinement without being afforded a hearing. The motions of defendants Andries, Palmer, Alterman, and Malloy for summary judgment will be granted.