The opinion of the court was delivered by: NEALON
Before the court is a Report of Magistrate Raymond J. Durkin dated January 31, 1986, recommending that defendants' Motion for Summary Judgment be granted with respect to all issues except Plaintiff Ford's (Ford) transfer from administrative custody to S-2 administrative custody without a hearing. Plaintiffs filed Objections to Report of the Magistrate and a brief in support thereof on March 7, 1986, in accordance with a request for an enlargement of time to file said objections. See Document 121 of the Record. Defendants filed a Brief in Opposition to Plaintiffs' Objections to the Magistrate's Report on March 18, 1986. Reply time having lapsed, plaintiffs' objections are ripe for disposition. For the reasons set forth below, the case will be remanded to the Magistrate.
The background of this action is set forth extensively in the Magistrate's Report. A brief review of the factual predicate for this matter reveals the following. Plaintiffs, former inmates at the State Correctional Institution (SCI), Dallas, Pennsylvania, filed this § 1983 action, in essence, attacking the long term segregation of certain prisoners in the Restricted Housing Unit (RHU) at SCI Dallas. Plaintiff Ford has been convicted of two (2) counts of murder in the first degree, aggravated robbery, conspiracy, burglary, carrying a concealed deadly weapon and simple assault. Ford is currently serving a sentence of life imprisonment. Plaintiff Futch (Futch) has been convicted of larceny of an automobile, breaking and entering, assault with intent to murder, murder in the first degree, assault with intent to kill and assault by a life prisoner. Futch is currently serving a sentence of life imprisonment with consecutive sentences of three and one-half (3 1/2) to seven (7) years and life imprisonment if his current life sentence is ever commuted. The institutional records of both plaintiffs indicate that they have been less than "model prisoners" during their period of incarceration.
Two (2) examples of plaintiffs' violent and often erratic behavior are sufficient for present purposes. In March 1979, Futch was transferred to Farview State Hospital for a mental health evaluation, leaving SCI Dallas in maximum custody status. While at Farview, Futch escaped with one Russell Shoats, through the assistance of a visitor, and a security aide was kidnapped during this episode. Suffice to say, when the escapees were apprehended, they did not surrender "without a fight," leaving behind literally hundreds of rounds of spent ammunition and a veritable cache of weapons. As a result, Futch was returned to SCI Dallas in maximum custody status. For his part, on one occasion Ford stabbed another prisoner a total of five (5) times with a sharpened, tablespoon handle, which had to be forcibly taken from him after the incident. Ford plead guilty to a charge of simple assault, receiving a sentence of three (3) to six (6) months, to run concurrent with his existing sentence.
The Magistrate found seven (7) issues to which the Motion for Summary Judgment was directed. Those issues were: (1) the denial of a meaningful periodic review of continued confinement in administrative segregation; (2) the alleged cruel and unusual punishment relating to long term confinement in administrative segregation, coupled with the denial of adequate exercise; (3) the denial of congregational religious services in segregation; (4) the denial of visitation by children of inmates under the age of eighteen (18) in segregation; (5) the interference with incoming mail from Ford's sister; (6) the confiscation of a Muslim Newsletter from Futch; and (7) the alleged denial of a hearing prior to placement in administrative segregation in March 1980 for Futch, and "recently" for Ford. See Document 120 of the Record at 4. The Magistrate carefully analyzed each claim, finding that defendant was entitled to summary judgment on all claims except the denial of a hearing prior to Ford's placement in administrative custody "recently." Defendants do not object to the Magistrate's recommendations, including this latter claim. Plaintiffs object to the Magistrate's Report on three (3) grounds. Each objection will be considered seriatim.1
Plaintiffs belatedly filed a third amended complaint naming an additional defendant (DeRamus) after the present Motion for Summary Judgment was filed. The Magistrate recognizes that disposition of the motion with respect to the named defendants at the time the motion was filed, out of necessity, would have the effect of disposing of the claims as far as DeRamus is concerned. Id. at 2 n.1. Plaintiffs object to this conclusion.
In apparent support, plaintiffs frame the issue as follows: "Should summary judgment be granted with regard to the allegations against . . . DeRamus that he should have transferred plaintiffs from this medium security setting to a maximum security prison where they could be placed in population." Document 123 of the Record at 2. Essentially, plaintiffs maintain that DeRamus, who allegedly is in charge of transfers, violated plaintiffs' constitutional rights by not to transfers, violated plaintiffs' constitutional rights by not transferring them to a maximum security prison. The court finds that the decision not to transfer plaintiffs to a higher security prison cannot amount to a violation of plaintiffs' constitutional rights.
In Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983), the United States Supreme Court recognized that the Due Process Clause does not protect a convicted prisoner against transfer from one institution to another. Id. at 245. An inmate has no justifiable expectation that he will be incarcerated in a particular prison. Id. In this case, plaintiffs point to nothing in state regulations conferring a liberty interest in being or not being transferred. Thus, there is no basis for plaintiffs' claim against DeRamus. The failure to transfer plaintiffs to another 'institution of higher security cannot support a finding that DeRamus violated plaintiffs' constitutional rights. In sum, plaintiffs have not demonstrated that there is a protected interest in their being transferred. The absence of this showing is fatal to plaintiffs' claim. See e.g., Mims v. Shapp, 744 F.2d 946 (3d Cir. 1984)(threshold question in determining whether there has been a deprivation of rights without due process is whether there is a protected interest at issue).
Secondly, plaintiffs object to the Magistrate's recommendation concerning the issue of meaningful subjective evaluation of the inmate's status in long term solitary confinement. The Magistrate's Report provides a detailed analysis of this issue. Document 120 of the Record at 5-16. In so doing, the Magistrate recognized that prison officials may make subjective evaluations in determining administrative segregation. See Mims v. Shapp, supra. Plaintiffs aver that the monthly reviews were "perfunctory and misleading" and apparently that the subjective evaluations concerning plaintiffs were not reasonable. The court does not agree for the reasons set forth in the Magistrate's Report. Document 120 of the Record at 12-13. Plaintiffs offer no concrete evidence to rebut defendants' assertions, therefore, summary judgment is appropriate. In Mims, our Court ...