Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 87-1789
Mansmann, Hutchinson, and Van Dusen, Circuit Judges
Dante Todaro, a state prisoner, seeks damages and equitable relief under 42 U.S.C. § 1983 (1982) claiming deprivation of his fourteenth amendment guarantee of procedural due process. In his pro se complaint, Todaro alleged that the warden of the county jail and another individual, without benefit of a hearing, imposed a three-day punitive segregation upon him in retaliation for having written critical letters concerning prison conditions.*fn1
The district court granted summary judgment in favor of the defendants, concluding that, under Marshall v. Kozakiewicz, 601 F. Supp. 1549 (W.D.Pa. 1985), Todaro did not have a legally cognizable § 1983 claim. Because we find the record factually deficient for summary judgment purposes and because legal issues were not satisfactorily addressed, we will vacate the judgment of the district court and remand for further proceedings.
On March 6, 1986, Todaro, then incarcerated at the Somerset County Jail, was transferred to the Bedford County Jail to attend legal proceedings within that jurisdiction. Todaro returned to the Somerset County Jail on March 12, 1986 where he was placed in a cell in the basement of the facility, alternatively referred to as lockup, medical quarantine, drunk tank, and holding cell. There he remained until March 15, 1986. According to Todaro's complaint, he was released from the holding cell only after the prison authorities were contacted by telephone by the American Civil Liberties Union in response to Todaro's complaint concerning the conditions of his incarceration. Todaro claimed that after his release from the holding cell, he was confined to the high security division of the prison for approximately one year.*fn2
Todaro averred that his confinement in the holding cell was punishment for a number of letters he penned to the American Civil Liberties Union, the County Commissioners and a United States Congressman, criticizing prison conditions. According to Todaro this period of confinement in the holding cell was tantamount to punitive segregation as he was denied exercise, recreation, and other privileges afforded prisoners in the general population.
The named defendants in this action were John Bowman, the jail warden, and John Watkins, whose official status, even at this stage, remains unclear. Since, however, we are reviewing the facts on a summary judgment basis in a light favorable to the non-moving party, we will assume, at least at this juncture, that Watkins was serving as an acting sheriff at the time of the alleged incident.
Bowman and Watkins filed a motion to dismiss Todaro's complaint for failure to state a cause of action upon which relief could be granted. Although admitting that Todaro did not receive a hearing prior to being placed in the holding cell, the defendants requested dismissal, first, on the basis that John Watkins did not become the Somerset County Sheriff until a month after the alleged incident. Bowman and Watkins also argued that there is no protected liberty interest in remaining in the general inmate population in a Pennsylvania county jail and, thus, no legal basis for Todaro's claim.
In reaching his decision, the United States Magistrate to whom the matter was assigned considered an affidavit regarding Watkins' status at the time of the incident, thereby treating the motion as one requesting summary judgment. Finding a factual dispute concerning Watkins' official capacity within the jail and the extent of his involvement with Todaro on the operable dates, the magistrate denied summary judgment.
As to the legal viability of Todaro's claim, the magistrate rejected the defendants' argument that Todaro did not possess a state-created liberty interest. The magistrate decided that a factual issue existed as to whether Todaro's removal from the general population was a result of an administrative classification or as punishment in retaliation for the letters Todaro wrote complaining about prison conditions.*fn3 The defendants filed an objection to the magistrate's report solely on the question of Watkins' official capacity. Todaro filed opposing objections to the magistrate's report, elaborating upon his first amendment claim. The district court adopted the report and recommendation of the magistrate and discovery proceeded.
At his deposition Todaro acknowledged that it was prison custom to medically quarantine incoming prisoners for a 24-hour period. He then stated that after the 24-hour period he made inquiry as to the continuation of his stay in the holding cell. He testified that both Bowman and Watkins told him that he had "caused too many waves" with the letters he wrote. As to the restrictions imposed upon him, although Todaro claimed that in the three days he never left the holding cell, he later conceded that he was released for a 15-minute visit with his mother. Todaro was also presented with evidence indicating that when recreation was available to him he refused to participate. Todaro denied he was ever offered the opportunity for recreation.*fn4
After the close of discovery, Bowman and Watkins once again moved for summary judgment, averring this time that Todaro was never in punitive segregation, therefore, he was not entitled to a due process hearing concerning his three day stay in the holding cell. Watkins' questionable official status was not raised at this time.
Without awaiting response from Todaro, the magistrate granted Watkins' and Bowman's summary judgment motion.*fn5 The magistrate found that Todaro's allegations of punitive retribution were unsupportable and found instead that, upon return from the Bedford County Prison, he was medically quarantined in conformity with jail policy. The magistrate then concluded that Todaro's claim of constitutional deprivation was resolved by Marshall v. Kozakiewicz, 601 F. Supp. 1549 (W.D.Pa. 1985).
In Marshall, Pennsylvania regulations applicable to classification of county jail prisoners, 37 Pa. Code § 95.255, were viewed as merely setting forth factors to be considered in a classification process. Since these factors lacked the requisite mandatory character which the Supreme Court found necessary in Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), to create a protected liberty interest, Todaro could not invoke a due process argument concerning Watkins' and Bowman's failure to provide him with a hearing. Accordingly, the magistrate recommended that Todaro did not have a valid § 1983 claim. Except in the context that the confinement was not retaliatory, the magistrate did not address Todaro's possible first amendment claim.
After the magistrate's decision, but still within the timetable set by the magistrate, Todaro filed a cross motion for summary judgment, attaching a copy of the Somerset County Prison regulations outlining both prison classification procedures and steps to be followed in the event of a disciplinary action. In an accompanying affidavit, Todaro stated that although it would have been customary for him to have been placed in medical quarantine upon his return from the Bedford County Prison, his confinement beyond the 24-hour period assumed a punitive posture. Todaro once again alleged that his continued stay in the holding cell was in retaliation for the complaint letters he authored. Todaro also filed objections to the magistrate's report and recommendation.
The district court reviewed the matter de novo and adopted the report and ...