L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Prison officials acting in their official capacity are acting under color of state law.
Although plaintiff's claim against Officers Schairer, Ressler, Mossi, Thomas, Pizzarro and Williams is for a deprivation of plaintiff's First Amendment rights, the Court, after a thorough review of the record, characterizes plaintiff's claim as a violation of his right to due process. The Fourteenth Amendment provides that no state shall deprive any person of life, liberty or property, without due process of law. Plaintiff has the burden of establishing several elements in order to make out a valid due process claim. Plaintiff must show the existence of a protected life, liberty or property interest, the deprivation of that protected interest and the state action which brought about the deprivation. Parratt v. Taylor, supra.
In the present case the plaintiff has not established the existence of a protected liberty interest. It is well settled that while no state may deprive any person of life, liberty or property without due process of law, only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources, the due process clause and the laws of the state. Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Under the Pennsylvania Code an inmate has a protected liberty interest in remaining in the prison population.
In the case at bar plaintiff was not deprived of this liberty interest. To the contrary, he was permitted to remain in the general prison population and the only restriction placed on him was the loss of mess privileges that evening. This does not rise to the level of a protected liberty interest and thus plaintiff did not carry his burden and allege a valid due process claim under § 1983 against the six defendant prison guards.
Plaintiff alleges that Officer Ring utilized excessive force thereby violating plaintiff's Eighth Amendment right. Affording the pleadings a liberal construction as mandated by Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) plaintiff's allegations lack the specificity needed to establish a viable civil rights claim. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976). Plaintiff does not indicate whether Ring's conduct was part of a pattern or routine of physical abuse to which he was subjected or merely one incident among isolated incidents. As to the latter, it is well established that isolated torts which are cognizable under state law do not become constitutional violations solely because the complaining party is a prisoner. Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Paul v. Davis, 424 U.S. 693, 699-701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). In short, plaintiff's lone allegation with regard to Officer Ring that he used excessive force to subdue plaintiff, without more, does not rise to the level of a constitutional wrong. In addition, plaintiff presents no affidavits or other forms of evidence to support such an allegation. Whereas, Officer Ring and Officer Thomas filed sworn affidavits, refuting plaintiff's allegation and further stating that any force used was in the nature of self-defense. Therefore, the Court has no alternative but to grant summary judgment in favor of Officer Ring.
Plaintiff presents a claim against Timothy Carver, charging him with violations of plaintiff's Fifth, Sixth, Eighth, Ninth and Fourteenth Amendment rights. Plaintiff claims that Carver presided over the disciplinary hearing following this incident and caused criminal charges to be filed against the plaintiff. However, plaintiff presents no facts upon which the Court can determine how or whether plaintiff's rights may have been violated. Plaintiff makes no allegation that the procedures followed at the hearing, over which Carver presided, violated his constitutional rights, except that he was given ninety days in B.A.U. and subjected to criminal charges as well. The Court is unable to discern any violation of plaintiff's constitutional rights. Plaintiff was not subjected to double jeopardy as he seems to believe. He violated prison discipline as well as committing a criminal offense which resulted in two unrelated penal proceedings. The Court concludes that the allegations against Carver do not constitute a valid civil rights claim.
Plaintiff's allegations against former Warden Leroy Bean and Lehigh County are premised solely on the theory of respondeat superior. Plaintiff also makes a similar claim against Timothy Carver. Plaintiff claims that by virtue of their positions of command Bean, Carver and Lehigh County are responsible and, therefore, liable for the actions of their subordinates. It is a well settled principle that liability under § 1983 cannot be based on the traditional theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). Consequently, where, as here, the complaint fails to allege personal involvement of the County, Warden Bean, or Timothy Carver, in the form of actual participation or acquiescence in the alleged unlawful conduct, there is no § 1983 liability. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). It is clear that plaintiff has not alleged a valid claim pursuant to § 1983 against Bean, Carver and the County of Lehigh and as a matter of law, these defendants are entitled to summary judgment.
In light of the foregoing, the Court finds that plaintiff has failed to assert a cause of action under § 1983 and will, therefore, enter summary judgment in favor of all defendants and against plaintiff. An appropriate order follows.
AND NOW, this 7th day of August, 1985, upon consideration of plaintiff's motion for appointment of counsel, IT IS ORDERED that the motion is DENIED.
Upon consideration of defendants' motion for summary judgment and plaintiff's response thereto, IT IS FURTHER ORDERED that defendants' motion is GRANTED and judgment is entered in favor of all defendants and against plaintiff.