According to the defendants, plaintiff was placed in maximum security on July 6, 1993, based on information that he was organizing a "sit down" in the mess hall that day. (McFadden Aff. P 30). Since the mess hall is an area prone to riots and injuries, the plaintiff was isolated from the other inmates because it was believed to be the only way to prevent an uprising. (McFadden Aff. P 31-32). The plaintiff remained in maximum security for nine days and then returned to the prison's general population. (McFadden Aff. P 33-34). The record, however, is silent on whether the plaintiff was given some type of hearing either before or after the administrative segregation.
The plaintiff's nine day segregation from the general inmate population did not amount to a denial of his due process rights. Plaintiff was not entitled to a hearing prior to his segregation. Before due process would require a hearing, plaintiff must establish he had a protected liberty interest in remaining in the general prison population. The United States Constitution does not give the plaintiff a liberty interest in remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 469, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Martucci v. Johnson, 944 F.2d 291, 294 (6th Cir. 1991).
Furthermore, state law does not bestow upon the plaintiff a liberty interest in remaining in the general population. Chester County Prison is a county jail and its operation is governed by the regulations set forth in 37 Pa. Code § 95.221, et seq. The administrative regulations relevant to county jails do not create a liberty interest for a pretrial detainee to remain in a general prison population. Doss v. Rapone, 601 F. Supp. 935, 937 (E.D.Pa. 1985). See also Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 463, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989) (in order to create a protected liberty interest in the prison context, state regulations must explicitly create a right.) But see Grandison v. Cuyler, 600 F. Supp. 967, 970 (E.D.Pa. 1984) (Pollak, J.) (prisoners in state jails have protected liberty interest in remaining part of general prison population).
To establish a constitutional violation, plaintiff must show his segregation was done to punish him; that is, it was not reasonably related to a legitimate governmental objective. Martucci v. Johnson, 944 F.2d 291, 294 (6th Cir. 1991). The undisputed record demonstrates that prison officials received oral information from the leader in the Muslim community in the prison, that plaintiff was planning a "sit down" in the mess hall. (McFadden Aff. P 30). Prison authorities deemed the temporary segregation of the plaintiff as the "only way" to prevent an uprising. (McFadden Aff. P 32). Courts recognize that prison officials may use segregated detention to control and protect inmates whose presence within the general population would create unmanageable risks. Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992). In making this decision, prison officials have broad discretionary authority. Martucci v. Johnson, supra at 293-94. Thus, prison officials acted with legitimate governmental purpose when they ordered plaintiff temporarily segregated.
The conditions of plaintiff's confinement while in administrative segregation do not amount to punishment. Plaintiff claims that during the nine day segregation he was denied access to the telephone and religious services. The record demonstrates these deprivations were reasonably related to the goal of maintaining maximum security of certain inmates. Plaintiff's allegation that he was denied access to the prison law library has no basis in fact. D. Edward McFadden testified that visits to the law library by prisoners detained in maximum security are allowed at specific times. (McFadden Aff. P 35). Only those maximum security prisoners who violate the rules of the library itself are not permitted to use the facility, but legal materials are still provided upon request. (McFadden Aff. P 36). Prison regulations which reasonably limit the time, place, and manner in which prisoners may engage in legal research and prepare legal papers do not transgress constitutional protection as long as the regulations do not frustrate such access. Mathis v. DiGiacinto, 430 F. Supp. 457, 462 (E.D.Pa. 1977).
Plaintiff complained of the ban on "contact visits" while in maximum security. The undisputed record demonstrates that the prohibition of contact visits to prisoners in maximum security was not intended to punish them, but is reasonably related to the security goals of the prison, as it ensures that no weapons or contraband are smuggled inside the prison walls. (McFadden Aff. P 36-37). Therefore, the prohibition of contact visits for maximum security prisoners does not amount to punishment violative of the Due Process Clause. See Block v. Rutherford, 468 U.S. 576, 586, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984) (prohibition against contact visits between pretrial detainees and their family members was a reasonable, non-punitive response to legitimate security concerns).
Finally, plaintiff's allegations of the inadequate size and ventilation of his single occupancy cell while in maximum security do not amount to punishment violative of the Due Process Clause. These conditions, although discomforting, were reasonably related to a legitimate government objective; i.e., to provide an area with maximum security. See Bell v. Wolfish, supra at 537-543 (1977).
For all the above reasons, I recommend that summary judgment be granted against plaintiff in Civil Action No. 93-3946.
6. Civil Action No. 93-4374 - Transfer to Another Prison
The final claim of the plaintiff is that on August 3, 1993, he was transferred from Chester County Prison to Northampton County Prison. (Complaint, p.3, P IV). Plaintiff asserts that this was a retaliatory measure taken by Chester County Prison because of his pending litigation against the penal institution. (Complaint, p.3, P IV). He avers the transfer caused him a "tremendous amount of anxiety, mood swings, family visits, hostile environment, as well as being housed with dangerous, or potentially dangerous, criminals." In addition, plaintiff alleges that he was "not allowed visits with his children, or to converse with his co-defendant, who is also incarcerated at Chester County Prison." (Complaint, pp.3-4, P IV). The plaintiff requested an order returning him to Chester County Prison and prohibiting his further transfer. Additionally, plaintiff seeks punitive and compensatory damages. (Complaint, pp. 4-5, P V).
The Due Process Clause, in and of itself, does not protect a duly convicted prisoner against transfer from one institution to another. Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). However, pretrial detainees, such as the plaintiff, "have federally protected liberty interests that are different in kind from those of sentence inmates." Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981). Pretrial detainees retain constitutionally protected liberty interests that are not fully available to sentenced inmates. These are the Sixth Amendment right to effective assistance of counsel and the right to a speedy trial. Id.
The Third Circuit has held that a state is prohibited by the Sixth and Fourteenth Amendments from transferring a pretrial detainee without providing notice of the proposed transfer and an opportunity to be heard to oppose the transfer. The Court reasoned that non-consensual transfers, or those without notice, may violate a pretrial detainee's Sixth Amendment by removing him from the proximity of potential witnesses and his counsel, thereby curtailing his ability to communicate with them. Id. at 960. See also Covino v. Vermont Dept. of Corrections, 933 F.2d 128, 130 (2d Cir. 1991); Perkins v. Wagner, 513 F. Supp. 904, 905-06 (E.D.Pa. 1981).
In the instant case, plaintiff was transferred to Northampton County Prison on August 3, 1993, and remained there until October 11, 1993. (McFadden Aff. P 41; Northampton County Prison records). Defendants explain that the transfer was a direct response to the "sit down" planned by the plaintiff, as well as additional problems he caused when he was returned to the prison population following his nine day stay in maximum security. (McFadden Aff. P 42).
Officials hoped that plaintiff's transfer would "break up" the subversive group to which the plaintiff belonged so as to preserve prison order and security. (McFadden Aff. P 43). Finally, defendants stated that the transfer was unrelated to any pending litigation plaintiff might have against the prison. (McFadden Aff. P 44-45).
The affidavit submitted by the defendants does not demonstrate that Chester County officials gave the plaintiff any type of notice or opportunity to be heard prior to his transfer to another institution as required by the Sixth Amendment. See Cobb v. Aytch, supra at 960. Although it is not clear from plaintiff's complaint that he sustained any damages resulting from a Sixth Amendment violation, the absence of any proof that Chester County officials gave plaintiff an opportunity to be heard prior to the transfer precludes this Court from recommending that the defendants' motion for summary judgment be granted as to this final claim. Nonetheless, for the reasons stated previously, the plaintiff's claim should be dismissed for failure to prosecute.
This result is not harsh in view of the de minimus injury alleged by the plaintiff resulting from the stay at Northampton County Prison. It appears from the record that the period of transfer did not preclude plaintiff from preparing for his criminal trial. Plaintiff was released from incarceration on October 18, 1993, and, according to court records, his trial on the robbery charges had not commenced as of April 18, 1994.
Plaintiff's Sixth Amendment right to consult with his lawyer and other witnesses could not have been seriously infringed since plaintiff has been free on bail during the past six months. This is sufficient time to consult with counsel and locate and interview potential witnesses.
For all the above reasons, the Court respectfully makes the following:
AND NOW, this 24th day of MAY, 1994, it is respectfully RECOMMENDED that the defendants' motion to dismiss and for summary judgment be GRANTED as to all claims with the exception of the claims alleged in Civil Action No. 93-4374 relating to plaintiff's transfer to Northampton County Prison. It is recommended that defendants' motion for an injunction be DENIED. It is further recommended that plaintiff's consolidated Civil Action No. 93-3734, (including claims in C.A. No. 93-4374), be DISMISSED with prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.
THOMAS J. RUETER
UNITED STATES MAGISTRATE JUDGE