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KING v. JENKINS

January 23, 1985

WILLIAM KING
v.
WARDEN EDWARD L. JENKINS



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 In this action William King, a prisoner at Holmesburg Prison, has filed a pro se complaint under 42 U.S.C. § 1983 alleging that his constitutional rights were violated in connection with his protective segregation from the general prison population for a period of one week. Defendant's motion to dismiss was denied because it contained a number of unsupported factual allegations. Defendant has now filed a motion for summary judgment supported by two depositions and an affidavit. Plaintiff, through his court appointed counsel, has responded to that motion.

 In deciding a motion for summary judgment the court must determine whether the moving party has carried its burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). All reasonable inferences from the evidentiary material of record must be drawn in favor of the nonmoving party. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). A response to a properly supported summary judgment motion may not rest upon the allegations of the pleading but must present, by affidavit or otherwise, specific facts sufficient to create a genuine issue of material fact. Fed. R. Civ. P. 56(e); Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). In the present case there is some uncertainty in the memories of the various actors as to the specific days and times at which certain events took place. There is, however, no dispute as to any material fact precluding judgment as a matter of law.

 Plaintiff's complaint states:

 
I had been locked in a cell for over 100 hours, no bath, nor have I been able to walk around for any exercise, I was told that I was placed in this cell for my own protection, because I was told by another resident that my life was endanger [sic], but had found out that it was only a lie, in fact I wrote the warden of the prison and informed him that it was not true at all, but still he has not allowed me to talk with him nor to come out of this cell.

 On Monday, March 5, 1984, the defendant, Warden Edward L. Jenkins, received a telephone call from an attorney, Donald Bronstein. Mr. Bronstein told Warden Jenkins that he had information from an inmate in the special custody unit that inmates in that unit had been making homemade knives. Mr. Bronstein did not tell Warden Jenkins who the informant was.

 The Warden immediately had the cells in that unit searched, but no weapons were found. *fn1" Warden Jenkins, in his deposition, described what such a search is like: "They lock up the entire cell block, each inmate in his own cell. Each cell is searched individually. The individual in the cell is searched, his person is searched. He's asked to strip and all of his personal effects, his bed and everything is searched." Jenkins Deposition at 11. The inmates were very upset and wanted to know what had precipitated the shakedown.

 At that point King stated before a prison official, Sergeant Mercer, and before all the inmates in the unit, that he had precipitated the search by getting a lawyer to call the Warden. The Warden directed that King be placed in a cell separated from the rest of the special custody unit for his own protection, fearing reprisal for his instigating the search.

 On either Thursday March 8, 1984 (see Velitskovich Deposition at 31) or on Friday, March 9, 1984 (see Jenkins Deposition at 24) King was given a hearing before the administrative segregation review board. King testified at that hearing and was questioned by members of the board. The board's recommendation was that King not be released from protective segregation.

 On Friday, March 9, 1984 King communicated to Warden Jenkins orally that he no longer feared for his life. Jenkins asked King to put that representation in writing. King submitted a written request to be released from segregation because he no longer feared for his life, but the request did not reach Jenkins on Friday, March 9 because he had gone home for the weekend. Either on Friday, March 9, or on Monday, March 12, Jenkins and Superintendent Owens interviewed three prisoners in the special custody unit to find out whether it was safe for King to return to that unit. Finally on Monday, March 12, King was released from segregation and placed back in his usual cell in the special custody unit.

 The special custody unit, in which King is normally housed, is itself a protective segregation unit. King has, in the past, had troubles with a "radical organization of black Muslims, Fruit of Islam." Velitskovich Deposition at 28. *fn2" When King was placed in protective segregation the week of March 5, 1984, therefore, he was separated from the other inmates who were also in protective segregation.

 Defendant contends that the only conceivable constitutional rights presented in this case are the eighth amendment guaranty against cruel and unusual punishment and the fourteenth amendment protection against deprivation of liberty without due process of law. He further contends that he is entitled to judgment as a matter of law on any such claims.

 Plaintiff contends that the deposition testimony of Jenkins and Velitskovich establishes that the procedures mandated by the Pennsylvania Administrative Code with respect to review of segregation status of prisoners were not followed. Plaintiff further contends that there is an issue of fact whether King's exercise and telephone ...


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