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TUNNELL v. OFFICE OF PUB. DEFENDER

March 23, 1984

Jack Burton TUNNELL
v.
OFFICE OF PUBLIC DEFENDER, et al.



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 In 1981, plaintiff Jack G. Tunnell, proceeding pro se, filed this action against the Office of the Public Defender of Montgomery County, the Montgomery County Sheriff, and a correctional officer and the superintendent at the State Correctional Institution at Graterford, Pennsylvania, alleging various violations of plaintiff's civil rights. In March 1982, this court approved and adopted a report and recommendation of United States Magistrate William F. Hall, Jr. and dismissed the claims against the Montgomery County Sheriff and the Office of the Public Defender of Montgomery County.

 Although counsel had been appointed in August 1981 to represent plaintiff in this action, plaintiff filed a pro se appeal of this court's March 1982 order. That appeal was dismissed in June 1982; but, apparently due to a lack of communication between the parties and the Court of Appeals, the parties did not become aware of the dismissal until late 1983. At that time, defendants L. Lorenzo Alleyne (improperly designated in the complaint as Arlene) and Julius T. Cuyler filed a "cross-motion" for summary judgment. *fn1" Plaintiff responded to that motion in December 1983.

 In order to understand the different claims which plaintiff alleges against defendants, it is useful to have a general understanding of the factual allegations made by plaintiff. In 1981, plaintiff was subpoenaed to testify at a criminal trial in eastern Pennsylvania. At that time, he was incarcerated in a state facility in Pittsburgh. In order to allow plaintiff to appear at the criminal trial for which he had been subpoenaed, he was transferred to the state facility at Graterford. At that time defendant Alleyne was a correctional officer at the Graterford facility and defendant Cuyler was the superintendent of the Graterford facility.

 Plaintiff alleges that, when he arrived at Graterford, personal property which he had brought with him from Pittsburgh was taken from him by defendant Alleyne. Plaintiff was then placed in the Restricted Housing Unit (RHU) rather than being placed in the general prison population. Plaintiff was never informed of the reasons for the decision to place him in the RHU or allowed any opportunity to express his position on the decision.

 Plaintiff remained at Graterford and in the RHU for twelve days. Plaintiff alleges that while there he made numerous attempts to submit complaints about the conditions in the RHU to defendant Cuyler but those complaints were ignored.

 When plaintiff was transferred back to the Pittsburgh facility from Graterford, certain items of personal property were returned to him by an officer other than defendant Alleyne. At that time, plaintiff discovered that not all of the personal property which had been confiscated upon his arrival had been returned to him.

 Plaintiff alleges three separate civil rights claims against the two remaining defendants, Alleyne and Cuyler. First, plaintiff claims that defendants violated his constitutional right to due process by failing to return all of the property taken from him when he arrived at Graterford. Second, plaintiff alleges that the conditions in the RHU at Graterford violated the Eighth Amendment to the United States Constitution. Third, plaintiff alleges that the decision to place plaintiff in the RHU without an opportunity for a hearing on the issue violated his right to due process.

 The two remaining defendants have filed the present motion for summary judgment as to all claims against them and raise six arguments in support of their motion. Three of these arguments attack the viability of all of plaintiff's claims while the other three are addressed to individual claims raised by plaintiff. I will consider the narrower arguments raised by defendants' motion first.

 1. The Failure to Return Plaintiff's Property

 Defendants argue that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), compels this court to grant summary judgment on plaintiff's due process claims which arise from the failure to return all of plaintiff's personal property to him. In Parratt the court held that prison officials could not be liable to a prisoner under § 1983 for a negligent loss of the prisoner's property when there was a state tort remedy available to the plaintiff under which he could recover for such negligence. The existence of this state law remedy was sufficient to satisfy the requirements of due process for such a negligent deprivation of plaintiff's property.

 Defendants cite § 8522(b)(3) of Title 42 of the Pennsylvania Code which waives the sovereign immunity of the state in suits brought for loss of property which was under the control of state personnel. Thus, there appears to be a state tort remedy available to plaintiff for the claims brought by him involving deprivation of personal property.

 Plaintiff argues that the principles of Parratt are not applicable in the present action because the complaint alleges that the deprivation of property was intentional. In other words, plaintiff argues that the existence of a state tort remedy may not satisfy the requirements of the due process clause when the alleged violation was intentional.

 As support for that argument, plaintiff relies upon Justice Blackmun's concurring opinion in Parratt in which Justice White joined. That opinion states clearly that at least two of the concurring Justices would treat an intentional deprivation of property differently. 451 U.S. at 545-46, 101 S. Ct. at 1917-18. See also Parratt at 547, 101 S. Ct. at 1919 (Powell, J. concurring in the result).

  In the three years since the decision in Parratt, a number of courts of appeal have considered whether Parratt should be extended to claims of intentional constitutional deprivations. They have arrived at conflicting conclusions. E.g., Palmer v. Hudson, 697 F.2d 1220 (4th Cir.1983); Engblom v. Carey, 677 F.2d 957 (2d Cir.1982); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir.1981); Yusuf Asad Madyun v. Thompson, 657 F.2d 868 (7th Cir.1981). This issue has not yet been addressed by the Third Circuit Court of Appeals. Therefore, there is no controlling authority on the question in this circuit.

 Upon review of the decisions of the various courts of appeals cited above and numerous district court decisions on the issue, I conclude that the Supreme Court's ruling in Parratt does not cover intentional torts. See, e.g., Borrelli v. Askey, No. 82-4634, 582 F. Supp. 512 (E.D.Pa. February 16, 1984); Peters v. Township of Hopewell, 534 F. Supp. 1324 (D.N.J.1982); Parker v. Rockefeller, 521 F. Supp. 1013 (N.D.W.Va.1981). First: given that Parratt was characterized by the Court as a negligence case and the Court's opinion does not quarrel with the limitation articulated in Justice Blackmun's concurrence, Parratt appears not to announce a rule applicable to intentional torts. Second: since § 1983 was designed to deter intentional misconduct by state officials, the mere existence of a state tort remedy by which plaintiff may be compensated for his loss should not preclude the availability of a § 1983 claim for intentional constitutional deprivations such as the one alleged. *fn2" Accordingly, defendants' motion for summary judgment will be denied to the extent that it relies upon Parratt.

 2. Collateral Estoppel as to the Eighth Amendment Violations

 Defendants argue that the decisions by members of this court with respect to Graterford's RHU preclude my finding in this case that the conditions in those facilities constitute cruel or unusual punishment. As support for this proposition defendants cite to Judge Lord's opinion in Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893 (Pa. 1978), which was issued after Judge Lord made an on-site inspection of the conditions in the RHU. In that opinion, then Chief Judge Lord found that conditions in the "Behavior Adjustment Unit" at the Graterford facility did not violate the Eighth Amendment. *fn3" Defendants also note that Judge Cahn, Magistrate Hall, and I visited the Graterford facility in 1980, but they do not cite to any decisions which were issued relating to the conditions of that facility following that visit.

 3. The Decision to Place Plaintiff in the RHU

 Defendants argue that, as a matter of law, the decision to place plaintiff in the RHU for the twelve days of his stay at Graterford without any opportunity for plaintiff to know the reasons for his segregation or to present his views is not a due process violation. Defendants rely on Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976). They also refer to numerous decisions of this court which have held that there is no constitutional or state law entitlement to a hearing prior to the transfer of a prisoner from one ...


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