The opinion of the court was delivered by: BECHTLE
Presently before the court is defendant's motion for summary judgment in an action brought by a prisoner under 42 U.S.C. § 1983. For the reasons stated herein, defendant's motion will be granted.
Plaintiff was arrested in early 1982 and charged with rape, involuntary deviate sexual intercourse, indecent assault, terroristic threats, unlawful restraint, and possession of the instruments of crime. On February 23, 1982, he was committed to Delaware County Prison in Pennsylvania where the defendant was warden. Plaintiff failed to make bail of $75,000.00 and remained incarcerated pending trial. Plaintiff was held in maximum security status because his bail was in excess of $50,000.00, he had a record of violent crimes, and as an inmate at the state correctional institution at Graterford, he had previously stabbed two inmates.
Plaintiff's maximum security status was the result of a determination by the county prison officials. Plaintiff was given no notice nor opportunity to be heard prior to the determination.
On March 31, 1983, plaintiff was again convicted of rape, involuntary deviate sexual intercourse, and indecent assault. He was committed to the state correctional institution at Graterford.
Plaintiff brought this action pro se under 42 U.S.C. § 1983 against the warden. The court construes his complaint as setting forth three theories of recovery: (1) incarceration in administrative segregation without giving him prior notice and an opportunity to be heard violates his due process interest of liberty; (2) his First Amendment right to free exercise of religion was violated because prison officials did not permit him to attend group worship services held for members of the general prison population; and (3) the prison's failure to provide him with prompt medical care for a toothache and a cut constituted a violation of his due process rights.
(A) The Administrative Segregation Issue
In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), the United States Supreme Court construed Pennsylvania's regulations pertaining to state correctional institutions. See 37 Pa.Admin. Code §§ 95.103-95.104 (Shepard's 1979).
These regulations required, in explicit and mandatory language, that when officials of state correctional institutions determine a prisoner's administrative status, they must give the prisoner notice and an opportunity to be heard. The Court held that prisoners incarcerated in state correctional institutions had a liberty interest in remaining with the general prison population. The liberty interest arose from the regulation's "repeated use of explicitly mandatory language in connection with requiring substantive predicates. . . ." Hewitt, 459 U.S. at 472, 103 S. Ct. at 871. The Court conceded, however, that, absent a state-created interest, a prisoner has no protected liberty interest in remaining in the general prison population. Hewitt, 459 U.S. at 472, 103 S. Ct. at 871.
Plaintiff argues that Hewitt is controlling in this case. The court finds, however, that the regulations construed in Hewitt involved state correctional institutions. Another group of regulations govern county correctional institutions such as the Delaware County Prison. See Pa.Admin.Code §§ 95.221-95.248 (Shepard's 1979).
Comparing the two regulations, the court finds that the explicit and mandatory language present in the regulations governing state correctional institutions is not present in regulations governing county correctional institutions. Since the mandatory language is absent, the court holds that the regulations pertaining to county prisons do not create a liberty interest in prisoners incarcerated in county prisons. As a result, county prisoners have no state-created liberty interest in remaining in the general population and no expectancy that they will be accorded notice and an opportunity to be heard when their administrative status is determined. Therefore, the court holds that plaintiff had no due process rights to notice or a hearing when the defendant determined plaintiff's status. Accord Doss v. Rapone, 601 F. Supp. 935 (E.D.Pa.1985) (Luongo, J.); Garfield v. Rapone, No. 82-2345 (E.D.Pa., May 25, 1984) (Broderick, J.); Green v. Rapone, No. 83-2932 (E.D.Pa. February 16, 1984) (O'Neill, J.). Defendant's motion for summary judgment will be granted with respect to plaintiff's administrative segregation claim.
(B) Free Exercise of Religion Claim
Next, the court examines plaintiff's claim that defendant violated plaintiff's First Amendment right to practice his religion by not permitting plaintiff to attend religious ...