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October 12, 1984

Julius T. CUYLER, et al.

The opinion of the court was delivered by: POLLAK

 Walter Grandison, an inmate at the State Correctional Institution at Graterford, Pennsylvania, has brought this action seeking damages for the alleged denial of due process of law in connection with his assignment to the Graterford Restricted Housing Unit ("RHU") for several months during 1982. Defendants in this action have moved for summary judgment, and Magistrate William F. Hall, Jr. has filed a Report and Recommendation which concludes that defendants' motion should be granted.

 Magistrate Hall's report was filed on March 29, 1984. Plaintiff filed objections to that report thirteen days later. In addition, on April 20, 1984, plaintiff moved to amend his complaint, which had been filed pro se, on the theory that he had been prejudiced by Magistrate Hall's difficulty in interpreting the original complaint. Defendants have opposed the motion to amend.

 This court thus has before it both defendants' motion for summary judgment and plaintiff's motion to amend his complaint. Because my disposition of the former motion affects my disposition of the latter, and because our Court of Appeals has spoken on major issues in this case since Magistrate Hall filed his report, I will discuss both motions at some length.

 I. Statement of Facts

 This action arises out of an alleged disturbance involving certain inmates and prison guards at the Graterford facility on January 24, 1982. According to the affidavit of defendant David L. Horwitz, a Corrections Officer at Graterford, the altercation involved "approximately 50 inmates armed or in the process of arming themselves with clubs, boards and knives." Affidavit of David L. Horwitz at para. 4. Officer Horwitz states that plaintiff was part of this disturbance, was armed with a wooden board, and refused to return to his cell when he was ordered to do so. Id. at paras. 5-6. Plaintiff states that he observed no disturbance, and did not refuse the guard's lock-up order. Plaintiff's Affidavit at paras. 14-16.

 Officer Horwitz proceeded to file a misconduct report against plaintiff. That report was filed on January 24, the same day as the incident. On January 25, a guard came to plaintiff's cell with an Inmate Request for Representation and Witnesses Form. The guard told plaintiff that plaintiff would face a misconduct hearing regarding the incident of January 24. At this time, plaintiff requested that one Calvin Johnson represent him at the misconduct hearing. Plaintiff also requested that a witness be called on his behalf. Plaintiff told the guard the witness' name was Charles Moore, and said he believed Moore's inmate number was M2204. Plaintiff's Affidavit at para. 22. The guard then wrote this identification number on the form, placing a question mark above it.

 On January 26, two days after the incident, plaintiff was transferred to RHU pending his misconduct hearing. That same day, plaintiff received a copy of the misconduct report.

 The hearing committee found plaintiff guilty of several violations of prison regulations and sentenced the plaintiff to six months in RHU. The sentence was subsequently sustained on administrative review.

 According to plaintiff, these facts raise a whole host of violations of plaintiff's Fourteenth Amendment right not to be deprived of his liberty without due process of law. Because an understanding of the source and scope of plaintiff's liberty interest is critical to resolving these claims, I will briefly discuss the nature of that interest and the source of the law which defines it. Following that discussion, I will analyze the claims concerning plaintiff's pre-hearing confinement, the claims concerning the hearing itself, and finally, the claims concerning post-hearing review procedures. The motion to amend will be discussed following the discussion of the post-hearing claims.

 II. The Nature and Scope of Plaintiff's Liberty Interest

 Plaintiff is correct in asserting that he has a liberty interest in remaining in the general prison population. Wolff v. McDonnell, 418 U.S. 539, 555-57, 94 S. Ct. 2963, 2974-75, 41 L. Ed. 2d 935 (1974). See Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 871, 74 L. Ed. 2d 675 (1983). Although that interest is protected by the force of the United States Constitution, its existence depends on Pennsylvania law. See Wolff, 418 U.S. at 557-58, 94 S. Ct. at 2975-76; Hewitt, 103 S. Ct. at 871. Cf. Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 1747-48 & n. 10, 75 L. Ed. 2d 813 (1983). In this instance, Pennsylvania has created a protectable liberty interest in remaining in the general prison population by enacting mandatory rules which define the circumstances under which that status may be abridged. 37 Pa.Code ยง 93.10; Bureau of Corrections Administrative Directive 801. See Hewitt, 103 S. Ct. at 871 & n. 6.

 Plaintiff maintains that Pennsylvania law not only creates the protected liberty interest in this case, but also defines the process that is due before that interest may be infringed. Specifically, plaintiff argues that Bureau of Correction Administrative Directive 801, which sets forth the procedures which must be followed in connection with prison disciplinary action, defines the scope of Fourteenth Amendment due process for purposes of this action. The bulk of plaintiff's argument is thus directed at showing how the terms of that directive were violated in the course of plaintiff's disciplinary proceeding.

 Magistrate Hall correctly rejected this argument in his report. See Report and Recommendations at 3. In both Wolff v. McDonnell and Hewitt v. Helms, the Supreme Court found that state prison regulations had given rise to a liberty interest in remaining in the general prison population. Wolff, 418 U.S. at 557-58, 94 S. Ct. at 2975-76; Hewitt, 103 S. Ct. at 871. Having found a protected interest, the Court in both cases proceeded to analyze the requirements of procedural due process based on factors no different from those applied in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See Wolff, 418 U.S. at 559-72, 94 S. Ct. at 2976-82; Hewitt, 103 S. Ct. at 872-74 (citing Mathews). As a result, the Court found in Wolff that the state-mandated procedures were constitutionally insufficient in some respects, 418 U.S. at 563-65, 94 S. Ct. at 2978-79, while in Hewitt, the relevant state law was more demanding than the Fourteenth Amendment. See Hewitt, 103 S. Ct. at 884 & n. 27 (Stevens, J., dissenting). Such results are not possible if the relevant state law not only creates the interest but also defines the process that is due. These cases thus leave no doubt that the constitutional adequacy of the procedures afforded plaintiff is to be determined according to the standards developed in Wolff v. McDonnell, supra, see Woods v. Marks, 742 F.2d 770 (3d Cir.1984), and not by the provisions of Administrative Directive 801. See also Drayton v. Robinson, 719 F.2d 1214, 1218-19 (3d Cir.1983).

 In support of his argument that violations of 801 constitute violations of due process under the Fourteenth Amendment, plaintiff relies heavily on Winsett v. McGinnes, 617 F.2d 996 (3d Cir.1980), cert. denied, 449 U.S. 1093, 101 S. Ct. 891, 66 L. Ed. 2d 822 (1981). Plaintiff's argument both misconceives the holding of Winsett and ignores more recent cases which bear more directly on the question of what process is due in prison disciplinary matters. In Winsett, our Court of Appeals found that Delaware authorities violated due process when they denied a prisoner work release status "because of their fear of adverse public reaction and legislative reprisals against the prison system." 617 F.2d at 998. The court concluded that the Delaware statute governing work release gave rise to a liberty interest on the part of the prisoner, and that the consideration of a factor not contemplated by the work release program violated the prisoner's right to due process. Id. at 1007-08. This case might be analogous to Winsett if plaintiff were alleging that he was sentenced to disciplinary confinement because his hair was blond or because an influential legislator ...

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