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June 1, 1983


The opinion of the court was delivered by: BRODERICK


 Plaintiff, Edward Garfield, is currently a prisoner incarcerated at Huntingdon Prison and proceeds pro se in this § 1983 civil rights action. Defendants, various state officials at Graterford and Huntingdon Prisons, have filed a motion for summary judgment. For the reasons hereinafter set forth, the Court will grant defendants' motion.

 An uprising occurred at Graterford Prison on January 24, 1982, which resulted in defendants taking disciplinary measures against plaintiff, including his transfer to Huntingdon Prison. Plaintiff contends the correctional sanctions imposed by defendants in response to the January 24th incident violated his constitutional rights.

 A preliminary consideration for the Court in deciding summary judgment motions is whether a genuine issue as to any material fact exists which would preclude entry of judgment for the moving party as a matter of law. F.R.C.P. 56(c). This determination is made by examining all pleadings, depositions, answers to interrogatories, admissions and affidavits filed with the Court. F.R.C.P. 56(c). Defendants in this case have filed affidavits setting forth their factual contentions surrounding the incident which plaintiff claims violated his constitutional rights. Although plaintiff has filed no "affidavit" raising any factual issues or pointing to any answers to interrogatories or depositions which contest any of defendants' sworn statements, he has filed a document entitled "Unsworn Declaration" as part of his brief in opposition to defendants' motion for summary judgment. Since plaintiff's motion for appointment of counsel was denied in this Court's Order of May 11, 1983, and he proceeds without the benefit of advice from experienced counsel, the Court shall consider the allegations contained in his "Unsworn Declaration" as if made under oath for purposes of this summary judgment motion.

 The following facts emerge uncontradicted from the record. On January 24, 1982, an uprising occurred at Graterford Prison on the cell block where plaintiff was then confined. Approximately thirty-five to fifty prisoners participated in the incident, during which eight staff members sustained minor injuries. Defendant Cuyler, Superintendent of Graterford, declared the institution to be in a state of emergency. In an effort to regain control of the cell-block, prison officials returned the inmates to their individual cells. The prisoners remained confined for two days while officials searched individual cells for weapons and other contraband.

 Plaintiff admits carrying at some time during this incident and retaining in his cell a glass beverage container. Such receptacles are considered contraband, possession of which constitutes A class 1 behavioral "Misconduct", pursuant to the Bureau of Corrections Administrative Directive 801, § IIB(a)(3). On January 26, 1982, fifteen Graterford prisoners, including plaintiff, were transferred to Huntingdon where, upon his arrival, he was immediately placed in administrative segregation and there received a copy of a Misconduct Report on January 26th or 27th. A hearing on the alleged misconduct was held on January 28, 1982, at Huntingdon, which hearing was presided over by defendants Captain Myers, Steven Polte and Joseph Ciganik. The Misconduct Report shows that plaintiff did not request witnesses nor assistance from an inmate representative at his misconduct hearing. In his "Unsworn Declaration", plaintiff states that the reason why he did not request witnesses or inmate assistance is because he knew no one at Huntingdon. Plaintiff was found guilty of "Possession of or Introduction of Contraband or Implements of Escape", BC-ADM 801 § IIB(a)(3), including possession of alcohol, and ordered confined for three months in disciplinary custody. On March 4, 1982, the Program Review Committee at Huntingdon, comprised of defendants T. W. Henry, E. C. Wicker and J. A. Dick, sustained the Hearing Committee's finding of guilty. Plaintiff was, however, released from disciplinary custody after only two months, as a result of a recommendation to the Program Review Committee by Superintendent Zimmerman, who advised the Committee that investigation showed that the plaintiff did not possess alcohol in the contraband glass and suggested that plaintiff's disciplinary custody be reduced to two months.

 For the reasons set forth below, the Court has determined that defendants in this matter are entitled to summary judgment.

 First, plaintiff alleges that his due process rights under the Fourteenth Amendment were violated in that he was placed in administrative segregation without first receiving notice of the misconduct charges against him, and he was transferred to Huntingdon Prison also without notice of the alleged wrongdoing. Graterford Prison was operating under a declared state of emergency at the time this action was taken against plaintiff. Although BC-ADM 801 § IIIB provides that a prisoner placed in pre-hearing confinement shall receive notice of any misconduct charges against him within three hours, BC-ADM 801 § VII permits suspension of the Directive's various provisions in "an extended emergency situation or extended disruption of normal routine." Prison officials are given latitude by the courts in the exercise of their discretion concerning prison security. Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); LeBatt v. Twomey, 513 F.2d 641 (7th Cir. 1975); Clifton v. Robinson, 500 F. Supp. 30 (E.D. Pa. 1980). It is uncontested that at the time of plaintiff's pre-hearing confinement there existed an extended emergency situation, as well as an extended disruption of normal institutional routine at Graterford Prison. Eight correctional officers were injured in the disturbance; guards had been assaulted; inmates broke tables and used the wooden parts as clubs. Large quantities of fermented beverages were discovered on the cell-block indicating consumption by more than a few inmates. Plaintiff admits drinking a beverage out of a glass container at the time of the disruption, and a guard reported seeing the plaintiff with a glass container in his hand. Considering these serious circumstances, Superintendent Cuyler's action in declaring a state of emergency was clearly justified, and plaintiff's pre-hearing confinement was warranted as provided in BC-ADM 801 § IVB(1). *fn1"

 Until recently, the process due prisoners upon segregation from the general population for administrative purposes, where a state-created liberty interest was found to exist, was thought to be the standard set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). See Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976), aff'd, 434 U.S. 1052, 55 L. Ed. 2d 756, 98 S. Ct. 1223 (1978); Hewitt v. Helms, 655 F.2d 487 (3d Cir. 1981), rev'd, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). Wolff v. McDonnell set forth the following due process requirements: (1) the right to appear before an impartial decision-making body; (2) twenty-four hour advance written notice of the charges; (3) an opportunity to call witnesses and present documentary evidence in defense provided same shall not be unduly hazardous to institutional safety or correctional goals; (4) assistance from an inmate representative if the accused inmate is illiterate or the issue involved is extremely complex; and (5) a written statement of the factfinders as to the evidence relied on and their reasons for the disciplinary action decided upon.

 In its recent decision in Hewitt v. Helms, the Supreme Court recognized that specific Pennsylvania statutory provisions and prison regulations create a liberty interest in its state prisoners to remain in the general prison population. Hewitt further held that when placed in administrative segregation pursuant to such regulations, prisoners in Pennsylvania are not entitled to all the due process provided by Wolff. Pursuant to Pennsylvania prison regulations, administrative segregation is authorized in instances in which an inmate (1) poses a threat to other inmates; (2) poses a threat to prison staff; (3) poses a threat to himself; (4) presents an escape risk; (5) requires protection from other inmates; (6) is being reclassified or transferred; and (7) disciplinary charges are pending against him. BC-ADM 801 §§ VA, VI A(1). As to such administrative segregation, a prisoner confined in Pennsylvania is entitled only to an informal nonadversarial evidentiary review of the existing evidence against him within a reasonable time following his confinement. The Hewitt court delineated the due process standard to which prisoners placed in administrative confinement in Pennsylvania are entitled: "An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation." 655 F.2d at 493, 51 U.S.L.W. at 4128.

 In light of this recent Supreme Court pronouncement, it is clear that plaintiff Garfield was entitled to Hewitt due process with respect to his pre-hearing confinement from January 24 through January 28, 1983, and to Wolff due process with respect to his confinement for two months in disciplinary custody. Since the initial decision to place plaintiff in administrative confinement was made under the pressing circumstances of a prison uprising, at which time plaintiff admits possessing contraband in the form of a glass container, and plaintiff was afforded a dispositive hearing on the charges against him within four days of his transfer and confinement, this Court is satisfied that plaintiff received the process due him under Hewitt and Wolff with regard to both periods of confinement.

 The uncontested facts in this matter show that plaintiff received written notice of the charges against him within two days of his confinement. This satisfies both Hewitt and Wolff standards. Within four days of the alleged misconduct, plaintiff appeared before an impartial Hearing Committee, at which time he had the opportunity to present his views of the January 24th incident both orally and in writing. Plaintiff acknowledges the exercise of this right by his signature ...

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