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BURTON v. SHAPP

November 22, 1983

FRED BURTON, Plaintiff
v.
MILTON SHAPP, Governor of the Commonwealth of Pennsylvania, ISRAEL PACKEL, Attorney General for the Commonwealth of Pennsylvania, STEWART WERNER, Commissioner of the Bureau of Correction for the Commonwealth of Pennsylvania, JAMES HOWARD, Warden of the State Correctional Institution at Pittsburgh, CHARLES ZIMMERMAN, Deputy Warden of the State Correctional Institution at Pittsburgh, WILLIAM JENNINGS, Deputy Warden of the State Correctional Institution at Pittsburgh, LAWRENCE WEYANDT, Major of the Guards at the State Correctional Institution at Pittsburgh, JOHN JASAK, Captain of the Guards at the State Correctional Institution at Pittsburgh, DAVID YOUNG, Casework Supervisor at the State Correctional Institution at Pittsburgh, CHARLES KOZAKIEWCZ, Lieutenant of the Guards, JAMES ROBLES, Sergeant of the Guards at the S.C.I. Pgh. in charge of the B.A.U., SERGEANT CARUTHERS, Sergeant of the Guards of the S.C.I. Pgh., in charge of the B.A.U., THEIR AGENTS Subordinates and Employees; FREDERICK BURTON, Plaintiff v. WILLIAM B. ROBINSON, individually and in his official capacity as Commissioner of Corrections of the Commonwealth of Pennsylvania, together with his Agents and Successors in Interest, STEWART WERNER, individually and in his former official capacity as Commissioner of Corrections of the Commonwealth of Pennsylvania, ROBERT L. JOHNSON, individually and in his former official capacity as Superintendent of the State Correctional Institution at Graterford Pennsylvania, JULIUS T. CUYLER, individually and in his official capacity as Superintendent of the State Correctional Institution at Graterford together with his Agents and Successors in interest JOSEPH BRIERLY and GILBERT A. WALTERS, individually and in their former official capacities as Superintendent of the State Correctional Institution at Pittsburgh, Pittsburgh, Pennsylvania, JAMES E. HOWARD, individually and his official capacity as Superintendent of the State Correctional Institution at Pittsburgh together with his Agents and Successors in Interest



The opinion of the court was delivered by: WEBER

 AND NOW this 22nd day of November 1983, in accordance with the accompanying Opinion, IT IS ORDERED that the JUDGMENT ENTERED November 5, 1980 for the Plaintiff and against the Defendants in the sum of Six Thousand Seven Hundred ($6,700) Dollars is AFFIRMED.

 WEBER, D.J.

 The above-captioned matter is before us on remand for reconsideration in light of the holding in Hewitt v. Helms, 459 U.S. 460, 51 U.S.L.W. 4124, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). The parties have agreed that no further evidentiary hearings are necessary because the record as it now stands is sufficient for our purposes. The parties have submitted briefs on the issue and the matter is now ripe for disposition.

 I. HISTORY

 A brief review of the factual and procedural history of this case is in order. A more detailed understanding may be gleaned from the previous opinions and orders. *fn1"

 This case originally consisted of the claims of a number of inmates held in administrative segregation in the Behavioral Adjustment Unit (BAU) at the State Correctional Institution (SCI) at Pittsburgh. We are now concerned solely with the due process claims of plaintiff Burton regarding his confinement in the BAU.

 Burton was confined at SCI Holmesburg, serving a sentence for homicide, when he was involved in the killing of two corrections officials. Burton was ultimately transferred to SCI Pittsburgh and placed in the BAU. Beginning in late 1975, prison officials conducted regular monthly reviews of Burton's status, all of which ended in the same recommendation and result -- continued confinement in the BAU. This suit challenges the validity of this review process.

 After an evidentiary hearing this court rejected plaintiff's argument that his confinement to the BAU constituted cruel and unusual punishment. However, we did conclude that Burton's due process rights had been violated: by the failure of prison officials to set any objective criteria to evaluate Burton's conduct in the BAU (which the Warden described as "exemplary") and his changed attitude; by reliance on past criminality alone for continued segregation; and by the purely subjective evaluation of Burton's status. 457 F. Supp. 247 (W.D. Pa. 1978) (Mims III). Burton was later returned to the general population after five years solitary confinement in the BAU. Damages and counsel fees were subsequently awarded.

 On appeal, this court's finding of a due process violation and the award of damages were affirmed. No. 82-5107, slip. op. (3d Cir. Nov. 29, 1982) (Mims VI). While this matter was pending consideration by the Court of Appeals en banc, the Supreme Court decided Hewitt v. Helms, in an opinion which addressed the due process requirements for placement of an inmate in administrative segregation. By per curiam order the Court of Appeals remanded this matter for reconsideration in light of Hewitt. See, 702 F.2d 453 (Mims VII).

 ANALYSIS

 The question here, simply stated, is what safeguards are required by due process for a decision to continue indefinite confinement of an inmate in administrative segregation. *fn2" We recognize of course that an inmate's constitutional rights are restricted insofar as necessitated by the nature of prison administration. Wolff v. McDonnell, 418 U.S. 539, 560, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). We note further that due process requirements are not inflexible but are adapted to the circumstances and the interests involved. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979).

 In our previous opinion (Mims III) we concluded that the periodic review of Burton's status by prison officials failed to satisfy due process requirements for a variety of reasons outlined above. As a consequence we directed prison authorities to "develop criteria for objectively evaluating the future or potential danger posed by Burton." 457 F. Supp. at 252. The purpose of these criteria was to permit assessment of Burton as a security risk "insofar as possible . . . on objective factors." Id.

 We are now under direction to reconsider our holding as to the nature of due process safeguards required in light of Hewitt. We have carefully considered the Court's opinion in Hewitt as well as previous cases and we conclude that our ...


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