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March 30, 1983

Walter H. DYSON, Plaintiff,
W. J. KOCIK, et al., Defendants

The opinion of the court was delivered by: RAMBO

 RAMBO, District Judge.

 This court has before it cross-motions for summary judgment, a motion by the defendants for oral argument on the motions for summary judgment, and a motion by the defendants to strike the plaintiff's jury demand. The parties have thoroughly briefed the relevant issues on the summary judgment motions. Oral argument is not necessary.

 There is no reason to restate the entire factual and procedural history of this litigation. The complete factual and procedural picture is presented in the comprehensive statement of undisputed facts which was filed with the plaintiff's pretrial memorandum on December 13, 1982. *fn1"

 This matter is a civil action for declaratory, injunctive, compensatory and punitive relief pursuant to the Civil Rights Act of 1871, 42 U.S.C. ยง 1983. Plaintiff is Walter H. Dyson, an individual who at all material times was incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania (SCI-Huntingdon), serving a sentence for aggravated robbery. At all material times, defendant Lowell D. Hewitt was the Superintendent of SCI-Huntingdon, defendant Charles D. Rodgers was a Correctional Officer IV (Captain of the Guard) at SCI-Huntingdon, and defendant Steven G. Polte was the Director of Education at SCI-Huntingdon.

 Plaintiff was on a home furlough from SCI-Huntingdon from June 27, 1978 until June 30, 1978. Due to suspicion that the plaintiff might attempt to bring drugs into the institution upon his return, the plaintiff was placed in the hospital isolation room at SCI-Huntingdon on June 30, 1978, and his bowel movements were checked. On July 1, 1978, while confined at the SCI-Huntingdon hospital, plaintiff passed a red balloon in his bowel movement. Also found in plaintiff's feces was "an unidentifiable substance." As a result of the items allegedly passed in the feces, the plaintiff was charged with misconduct for violating prison rules.

 Plaintiff received a copy of the misconduct report on July 3, 1978, at approximately 10:00 a.m. The unidentifiable substance that plaintiff allegedly possessed was tested by SCI-Huntingdon officials sometime between July 1 and July 5, 1978. SCI-Huntingdon officials stated that they believed the test showed a positive result for marijuana. During these proceedings the test used has been determined to have been unreliable under the circumstances of this case.

 On July 5, 1978 plaintiff received a misconduct hearing on the July 1 charges. The test results on the unidentifiable substance were presented at the hearing. Prior to the start of the hearing, plaintiff did not receive notice of any test results concerning the alleged unidentifiable substance or that the unidentifiable substance was alleged to be marijuana. At the hearing, plaintiff pled not guilty to the charge but admitted that he had passed the balloon when he defecated on July 1, 1978.

 At the conclusion of the hearing, the hearing committee took the following action as recorded on the hearing committee action form of the misconduct report:

" Action: (1) D.C.C. Review on July 28, 1978 or at request of B.A.T.
(2) Reduce program level III--A
(3) Confiscate contraband
(4) Revoke pre-release status
Rationale: inmate is guilty of misconduct as written."

 On July 5, 1978, plaintiff appealed his misconduct conviction to the SCI-Huntingdon Program Review Committee, which consisted of three SCI-Huntingdon staff members. The Program Review Committee conducted a formal review of plaintiff's appeal and sustained the hearing committee's action on July 13, 1978. The Program Review Committee reached the following decisions:

Program Review Committee has no problems addressing Dyson's points of appeal, but feels that he already knows the answers to his questions and that the Hearing Committee has already dealt with them. Dyson was detained in the institution hospital under the direction of the Deputy Superintendent for Operations because it was suspected that he was going to introduce drugs into the institution. He was placed in one restraint to keep him from flushing away any evidence that may be revealed in his B.M. This is an authorized practice if an inmate is suspected of introducing contraband drugs. The Hearing Committee does not have to reveal the source of information which led to him being suspected. He was adjudged guilty because the Hearing Committee felt they had reasonable proof to do so. It would seem that it was to the inmate's advantage that the institution chose to handle the misconduct internally as opposed to also bringing in the State Police to press charges. Program Review Committee see [sic] Dyson's appeal as an attempt to rationalize his behavior and project the blame unto [sic] the staff as opposed to facing it himself. Program Review Committee feels he clearly abused the privilege of home furloughs by attempting to introduce drugs into the institution. The Hearing Committee decision is upheld.

 On July 14, 1978, defendant Hewitt reviewed the Program Review Committee's action and rationale and he approved it without modification.

 Plaintiff was released from disciplinary custody to general population on July 27, 1978, and was paroled from SCI-Huntingdon by the Pennsylvania Board of Probation and Parole on March 1, 1979. He is presently incarcerated at the State Correctional Institution at Camp Hill, Pennsylvania.

 The action was commenced by complaint filed March 29, 1979. On July 6, 1979, this court granted plaintiff's motion for leave to file an amended complaint, and the defendants filed their answer to the amended complaint on July 30, 1979.

 Following the submission of pretrial memoranda and the holding of a pretrial conference with the court, the parties stipulated to the entry of judgment in favor of defendant Hewitt, with the reservation that such entry would not preclude an appeal therefrom.

 The matter was tried to a jury on November 4 -- 6, 1981, and the jury returned its answers to the special verdict questions on November 6, 1981.

 By order dated November 10, 1981, the court granted judgment in favor of defendant Hewitt for the reasons stated in the memoranda of December 9, 1980 and July 1, 1981, and in accordance with the stipulation for entry of judgment filed November 2, 1981; granted summary judgment in favor of defendants Rodgers and Polte for the reasons stated in the memoranda of December 9, 1980 and July 1, 1981; and directed that judgment be entered in favor of defendants Kocik, Adams and Weaverling in accordance with the special verdict rendered by the jury on November 6, 1981.

 Plaintiff filed a notice of appeal on December 7, 1981. By opinion and judgment dated October 5, 1982, the United States Court of Appeals for the Third Circuit vacated the judgment of this court insofar as it granted judgment in favor of defendants Hewitt, Rodgers and Polte; affirmed the judgment in all other respects; and remanded the cause for further proceedings consistent with its opinion. Dyson v. Kocik, 689 F.2d 466 (3d Cir.1982). The motions presently under consideration are related to the proceedings on remand.

 The defendants' summary judgment motion initially raises a qualified or good faith immunity defense. This defense was most recently defined by the United States Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). *fn2" Justice Powell, writing for the court, said:

We . . . hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable ...

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