Petition for Writ of Certiorari — Frame v. Pless

Ss ~ 1 9 54 Office oti aD US

No. MAY 29 1004

ALEXANDER L. STEVAS,

CLERK

aaeaenand

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THOMAS G. FRAME,

Petitioner

Vv.

GREGORY PLESS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT GF APPEALS

FOR THE THIRD CIRCUIT

John J. Halsted Thomas J. Ziomek

Janet M. Colliton *David E. Sandel, Jr.

119 North High Street Thomas J. Rueter

West Chester, PA 19380 WHITE AND WILLIAMS

1234 Market Street

Philadelphia, PA 19107

Attorneys for Petitioner

Thomas Frame

*Counsel of Record

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

QUESTIONS PRESENTED FOR REVIEW

1. Where a prisoner brutally attacks a prison guard

and attempts to break into the prison control room, does

the prison officials’ decision to place that inmate in a

segregation cell that lacks anything that can be used for

destructive purposes for four and one-half days pending

a disciplinary hearing violate due process of law under

the standards announced in Bell v. Wolfish, 441 U.S.

520 (1979), and Hewitt v. Helms, 103 S. Ct. 864 (1983)?

2. Where a prisoner freely admits at the federal

court trial of his civil rights claim that he attacked a

prison guard, where his federal court pleading expressly

asserts that he pleaded guilty to assaulting an officer at

the prison disciplinary hearing and where he was con-

victed of aggravated assault and battery in state court

criminal proceedings arising from the same incident,

can he recover damages for alleged violations of his

rights under due process of the Fourteenth Amendment

on the theory that he cannot be punished by being

placed in a segregation cell before he is given a hearing

before the prison disciplinary board?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..... i

py Re ge ts Sere rear ie ii

TABLES OF AUTHORITIES ...........0005. iii

oo eB AE a ne en aim ear ey ]

STATEMENT OF JURISDICTION ........... 2

CONSTITUTIONAL PROVISION AND _ FED-

ERAL STATUTE INVOLVED ............ 2

STATEMENT OF THE CARE ....5 sce cisseues 4

ABAGUREING SS oan so kaha ee ee 11

A. Warden Frame Did Not Violate The Prison-

er’s Right to Due Process of Law During the

Four and One-Half Days That He Spent in

Segregation Before the Disciplinary Hear-

ing. 12

1. Under Bell v. Wolfish, Warden Frame Did

Not Deprive the Prisoner of Due Process

of Law Because the Confinement to Cell

C-22 Was Rationally Related to the Com-

pelling Prison Interest of Preserving Se-

curity and Order. 12

2. The District Court Disregarded the Letter

and Spirit of Hewitt v. Helms. 20

B. A Hearing Was Not Necessary Because

Pless Has Repeatedly Conceded That He

Attacked Officer Hunt. 23

CONCLAIGHON 2.005 0s ue eles cen ee eee 23

APPELLEES . 608 6s Ve eee 25

il

TABLE OF AUTHORITIES

Cases: Page

Bell v. Wolfish, 441 U.S. 520 (1979) 10, 11, 12-16, 26, 27

Codd v. Velger, 429 U.S. 624 (1977) ......... 24, 26

Hewitt v. Helms, 103 S. Ct. 864 (1983) . 9, 11, 20-22, 26

Hutto v. Finney, 437 U.S. 678 (1978) ......... 10

Jones v. Mabry, 723 F.2d 590 (8th Cir. 1983) . 15, 16

Jones v. North Carolina Prisoners’ Labor Union,

gs 12

Pell v. Procunier, 417 U.S. 817 (1973) ......... 12

Pennhurst School & Hospital v. Halderman, 104

cece ce cen aeesacss )

Price v. Johnston, 334 U.S. 266 (1948) ......... 11

Rhodes v. Chapman, 452 U.S. 337 (1981) .... 10, 11

Wolff v. McDonnell, 418 U.S. 539 (1974) ....... 21

Constitutional Provisions:

de cn ck ee see teas scaas 9, 10

Eleventh Amendment ....................005 9

Fourteenth Amendment 2, 4, 8, 9, 10, 17, 20, 21, 22, 24

Statutes:

GE era 2

naar 4

ek we Saw bene te kw wes we 2, 4, 24

Rules:

Supreme Court Rule of Civil Procedure 21.1(b) .. 1

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THOMAS G. FRAME,

Petitioner

v.

GREGORY PLESS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS BELOW

The Memorandum and Order of the United States

District Court for the Eastern District of Pennsylvania

which was entered on March 30, 1983 is not reported.

The Opinion of the United States Court of Appeals for

the Third Circuit was likewise not reported. Both Opin-

ions are included herein as Appendices “A” and “B”, re-

spectively.! See App. at A-1 & A-10.

1. All of the parties to the case are listed in the caption to the

Court of Appeals’ Opinion, which is attached as Appendix “B”. App.

at A-10. This satisfies the requirement of Supreme Court Rule

21.1(b).

]

2

STATEMENT OF JURISDICTION

On January 27, 1984, the Court of Appeals for the

Third Circuit filed an Opinion affirming the judgment of

the District Court. On February 28, 1984, the Court of

Appeals entered an Order, a copy of which is attached as

Appendix “C”, App. at A-14, denying Warden Thomas G.

Frame’s Petition for Rehearing. This Court has jurisdic-

tion to review this Petition for Writ of Certiorari under 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISION AND

FEDERAL STATUTE INVOLVED

This Petition for Writ of Certiorari requests this

Court to consider Section One of the Fourteenth

Amendment to the United States Constitution which

provides as follows:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

3

This Petition also involves 42 U.S.C. §1983, which

states:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding or redress.”

4

STATEMENT OF THE CASE

This is a pro se prisoner civil rights case* that arises

from prison officials’ decision to immediately confine an

inmate to a segregation cell following his unprovoked,

bloody and vicious attack — with fists, with feet and

with a wooden bench — on a prison guard. The prisoner

also attempted to break into the Control Room of the

prison. The inmate readily admitted the assault at the

trial of this action, and paragraph 7 of his pro se com-

plaint (Appendix “E”) asserted that he had admitted his

guilt at the prison disciplinary board hearing. In addi-

tion, he was convicted of the resulting state court crimi-

nal charge of aggravated assault and battery for which

he received a one to three year prison sentence. The Dis-

trict Court characterized the inmate’s conduct as “outra-

geous assaultive behavior”, App. at A-4, and it found that

his confinement in the spartan living conditions of a seg-

regation cell did not violate the prisoner's constitutional

rights to the extent that he was confined there after the

formal prison disciplinary hearing. However, it held that

he had been denied due process of law under the Four-

teenth Amendment to the Constitution in connection

with the four and one-half days that he spent in the

same cell and under the same conditions before the

hearing and awarded him damages against Warden

Thomas G. Frame, the petitioner.

A. The Evidence At Trial

Respondent, Gregory Pless was a pretrial detainee

at Chester County Prison in Lenape, Pa., awaiting trial

in a neighboring county arising from a crime spree for

which he was ultimately convicted and sentenced to a

term of forty-five to ninety years. (N.T. 16). On the eve-

ning of July 30, 1981, two correctional officers were per-

forming a routine cell-to-cell search in the maximum se-

2. The claim was asserted under 42 U.S.C. $1983. and federal

jurisdiction lies under 28 U.S.C. §1343(4).

5

curity block of the prison. In accordance with standard

prison practice, inmate Pless was permitted to observe

the search. He inexplicably began cursing the guards,

and, as one of them pulled out a drawer in his cell, he

knocked it from the officer’s hands. (N.T. 25). The

guards reported the incident to their superior who in-

structed them to prepare a citation and a report on the

incident, charging Pless with cursing an officer. One of

them, Officer Donald Hunt, prepared the citation and

when he attempted to hand the citation to Pless the pris-

oner attacked him. Another guard came to Hunt's aid,

pulled Pless away and ran to the Control Room, a secure

area accessible to guards only, to call for assistance.

Pless attempted without success to force his way into the

Control Room; he then returned to the injured Officer

Hunt and proceeded to hit and kick the guard in his face

and his stomach. When reinforcements arrived, they ob-

served Pless hitting Hunt in the head with a wooden

bench. (N.T. 59-60).

Pless was immediately removed and placed in Cell

C-22 in the prison’s segregation area. The incident

citation, stained with Officer Hunt's blood, was admitted

at trial (N.T. 28) (Appendix “D”), where Pless freely ad-

mitted the assault and the fact that Hunt was hospital-

ized as a result of his attack. In response to the District

Judge’s invitation io tell him what happened, Pless be-

gan by explaining that: “It was an incident on the G

block where I assaulted a correctional officer.” (N.T. 3).

When the Judge characterized the incident as a “scuf-

fle”,* Pless corrected him:

“No, it wasn’t a scuffle. This one particular guard |

assaulted. So they moved me to [a segregation

cell].” (N.T. 4).4

2. At another point, the District Judge described the attack on

Officer Hunt as a “tangle”. (N.T. 10).

4. Pless later repeated his concession that he assaulted Officer

Hunt, stating “I am not denying that.” (N.T. 56).

6

In addition, as noted above, the Commonwealth of Penn-

sylvania filed criminal charges arising from the incident.

Pless was convicted of aggravated assault and battery

and received a sentence of one to three years in prison.

(N.T. 4).

Pless was confined on a twenty-four hour lockup ba-

sis to Cell C-22 until August 13, 1981, a total of two

weeks. (N.T. 35). On August 5, four and one-half days

after the attack on Hunt, Pless was given a prison disci-

plinary hearing on charges stemming from both the as-

sault and the cursing incident. In paragraph 7 of his

Complaint (Appendix “E”, App. at A-17) the prisoner de-

scribed the hearing in these words:

“On 8/4/81, Pless was given a disciplinary hearing

by Capt. Rilatt, Sgt. Gray, and C.O. 1 Poles. Fless

was charged with ‘assaulting an officer’, C.O. 1

Hunt. Plaintiff Pless, plead [sic] guilty, and was sen-

tenced to 120 days in Cell ‘C-22’.”

The evidence showed that Cell C-22, one of four ad-

jacent segregation cells, is clean but austere. It is de-

signed to hold prisoners who are extremely violent or

who are mental patients. (N.T. 33-34, 7). It has no fur-

nishings, and it lacks a conventional toilet. Instead it is

equipped with a tamper-proof waste facility that is level

with the ground and which can be flushed from inside

the cell. (N.T. 33). Inmates in Cell C-22 are given regu-

lar meals (N.T. 35) and drinking water on request. (N.T.

36, 19, 12). In addition, personal hygiene privileges are

restricted. Because he was on twenty-four hour lockup

status, Pless was not permitted to shower except for

court appearances (N.T. 3G) and such items as tooth-

brushes, washcloths and soap were sparingly provided.

(N.T. 57). Another feature of the twenty-four hour

lockup is the elimination of out-of-cell exercise

opportunities. (N.T. 34-35). Finally, because Cell C-22

is an isolation area for problem inmates, guards check on

the activity and well-being of inmates at least once an

7

hour and keep a log of their observations. District Court

Memorandum and Order, App. at A-3, N.T. at 32.

Inmates are assigned to Cell C-22 as a last resort in

those unusual instances in which, in the judgment of

prison officials, a particular inmate’s conduct is so irra-

tional and so disruptive of the prison security and order

that segregated confinement in a cell that lacks any-

thing that is capable of being used for destructive pur-

poses or which can itself be destroyed is necessary for

the protection of guards, other inmates, prison property

and the violent inmate himself.

B. The District Court Opinion

The District Court summarized the attack on Hunt

as follows:

“Officer Hunt attempted to serve upon plaintiff a

citation charging him with [a] major miscon-

duct.... After an exchange of words, plaintiff

struck Mr. Hunt in the face with his fist. Another

officer separated the combatants, and ran to the

control room to call for assistance. Plaintiff at-

tempted to enter the control room, but was pre-

vented from doing so, whereupon he returned to

Mr. Hunt and continued to beat and kick him, even-

tually throwing a bench upon him as he lay on the

floor. Mr. Hunt required hospitalization.

Plaintiff was immediately placed in segregated con-

finemeni in Cell C-22, a ‘medical isolation’ cell for

unusually disruptive prisoners.”° District Court

Memorandum and Order, App. at A-1.

The District Court concluded with little difficulty

that the inmate’s post-hearing confinement in Cell C-22

did not offend the due process clause:

5. There was no evidence at trial that Cell C-22 was a “medical

isolation” cell. In any event, it was a cell for “unusually disruptive

prisoners”, as the trial court correctly noted.

8

“With respect to the due process claims, it should be

noted that plaintiff was afforded a hearing on Au-

gust 4, 1981. He was informed of the charges, and

had an opportunity to refute them. Thus, his post-

August 4 solitary confinement cannot be regarded

as a deprivation of liberty with due process of

law. ... In my view, the prison authorities cannot

be faulted for imposing solitary confinement during

that period. Plaintiff's outrageous assaultive behav-

ior on July 30 posed a serious threat to prison secu-

rity, and it was obviously not unreasonable to seg-

regate plaintiff immediately, pending the hearing.”

District Court Memorandum and Order, App. at A-4

(emphasis added).

In short, the trial court construed the due process clause

of the Fourteenth Amendment as not prohibiting prison

officials from confining an inmate to the spartan envi-

ronment of Cell C-22 after the prison disciplinary hear-

ing at which his guilt in attacking Officer Hunt was for-

mally decided.

Confinement to the same segregation cell and the

same conditions for the four and one-half days before the

hearing was an entirely different matter in the District

Court’s view. The fact that Pless had engaged in “outra-

geous assaultive behavior [that] posed a serious threat to

prison security” was not sufficient to justify placing

plaintiff in Cell C-22 before the hearing. According to

the District Court, placing an inmate in Cell C-22 for any

amount of time before the formal hearing constituted

impermissible punishment:

“This does not mean, however, that it was permissi-

ble to punish plaintiff without a hearing, or to im-

pose restrictions unrelated to the legitimate objec-

tive of preserving prison security and restoring

order and it is impossible, on this record, to avoid

the conclusion that the treatment accorded plaintiff

during that four day period represented a punish-

9

ment, as opposed to security precautions.” District

Court Memorandum and Order, App. at A-4.

‘The District Court then quoted extensively from admin-

istrative regulations that prescribed, as a matter of state

law,° minimum requirements for prison living condi-

tions. 37 Pa. Code §§95.229, 95.231, 95.233, 95.240.

The Court concluded that “to the extent that the plaintiff

was deprived of decent bedding materials, access to

showers and minimal sanitary facilities, and kept de-

prived of a reasonable opportunity for exercise” for the

period before the hearing, he suffered punishment with-

out due process of law. District Court Memorandum and

Order, App. at A-4.

Even though it was satisfied that the inmate’s Four-

teenth Amendment rights had not been violated after

the hearing, the trial court went on to consider whether

during his post-hearing confinement to Cell C-22 plain-

tiff had been subjected to cruel and unusual punish-

ment in violation of the Eighth Amendment. Describing

the question as “close”, the Court concluded that the

prisoner’s Eighth Amendment rights had not been vio-

lated, evaluating the evidence as follows:

“He was required to sleep on the floor, without ade-

quate bedding and without normal clothing; but it

was summertime, and plaintiff apparently did ob-

tain adequate rest. He was deprived of two hours of

exercise outside his cell, but he was able to obtain

exercise within the cell. The defendants have not

established any justification for disregarding plain-

6. Although state prison regulations are relevant to a determi-

nation of whether an inmate has a liberty interest that is protected

under the Fourteenth Amendment, see Hewitt v. Helms, 103 S.Ct.

864 (1983), a violation of state law does not in and of itself consti-

tute a violation of federal constitutional rights. In fact, the Eleventh

Amendment prohibits the federal courts from requiring state offi-

cials to comply with their own state law. Pennhurst School & Hospi-

tal v. Halderman, 104 S.Ct. 900 (1984).

10

tiffs special dietary needs, but plaintiff apparently

obtained at least minimally adequate nourishment

during the entire period.” District Court Memoran-

dum and Order. App. at A-8.’

Notably absent from the District Court Opinion is

any citation to the authority that guided its analysis.

7. Both the District Court and the Court of Appeals decided the

Eighth Amendment question in favor of Warden Frame and, ac-

cordingly, this Petition does not present an Eighth Amendment

question. However, the District Court’s ruling under the rubric of

Eighth Amendment that the inmate’s post-hearing conditions were

minimally adequate is irreconcilable with its finding that the pre-

hearing confinement in identical conditions did not satisfy the sub-

stantive notions of fairness embodied in the due process clause of

the Fourteenth Amendment. In any event, the Eighth Amendment

issue, far from being “close”, is devoid of merit. First, only convicted

prisoners — and not pretrial detainees — may be punished in the

Eighth Amendment sense of punishment following conviction of a

crime. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Thus, challenges

to conditions in which detainees are confined cannot be tested un-

der the Eighth Amendment. Second, the Eighth Amendment does

not license the judiciary to exercise a veto power over conditions

that seem marginally unpleasant or even severe. Rather, the Eighth

Amendment prohibits only “the wanton and unnecessary infliction

of pain”. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Cf. Hutto

v. Finney, 437 U.S. 678, 681 (1978) (involving state prisons that the

District Court described as “a dark and evil world completely alien

to the free world”). In Hutto, some of the conditions that prompted

the District Court to find Eighth Amendment violations were the as-

signment of an average of four and sometimes many more prisoners

to each windowless eight foot by ten foot cell containing no furni-

ture and a toilet that could not be flushed from inside the cell; meals

that consisted primarily of “grue”, a pasty concoction of meat, pota-

toes, oleo, syrup, vegetables and eggs; punishments that included

whipping with a leather strap; sixty hour work weeks in the fields;

rampant inmate assaults and rapes; electrical shock punishment;

and a bizarre inmate hierarchy of “trusties”. It would trivialize the

Eighth Amendment to compare Pless’ four and one-half days of pre-

hearing segregation in Cell C-22 to the conditions that existed in

Hutto.

1]

C. The Court of Appeals Opinion

The Court of Appeals for the Third Circuit affirmed

the judgment of the District Court in a short Memoran-

dum Opinion that was designated “Not for Publication”.

After summarizing the trial record — and with scanty

citation to authority® — the Court of Appeals decided,

with a minimum of analysis, that the District Court had

correctly decided a “close” question.

ARGUMENT

The Supreme Court has long recognized that

“{l]jawful incarceration brings about the necessary with-

drawal or limitation of many privileges and rights, a re-

traction justified by the considerations underlying our

penal system.” Price v. Johnston, 334 U.S. 266, 285

(1948). In Hewitt v. Helms, 103 S. Ct. 864 (1983), this

Court re-emphasized that “prison officials have broad

administrative and discretionary authority over the insti-

tutions they manage and that lawfully incarcerated per-

sons retain only a narrow range of protected liberty inter-

ests.” 103 S. Ct. at 869. Prison officials’ judgments are

entitled particular deference in matters touching upon

prison security:

8. The Court of Appeals cited only Hewitt v. Helms, 103 S. Ct.

864 (1983), in the body of its opinion. Hewitt was cited for the prop-

osition that “in view of the serious threat to prison security posed by

appellee’s assaultive behavior, authorities acted properly in restrict-

ing him, even prior to a hearing, in solitary confinement.” App. at A-

12. The Third Circuit also cited a 1972 Second Circuit opinion and a

1975 decision by the District Court of Nevada which the Court of

Appeals described as holding that “similar conditions constitute

cruel and unusual punishment.” App. at A-13 n.4. Those cases are

inapposite. Both pre-dated applicable decisions of this Court includ-

ing Bell v. Wolfish, 441 U.S. 520 (1979), Rhodes v. Chapman, 452

U.S. 337 (1981), and Hewitt v. Helms, 103 S. Ct. 864 (1983). Fur-

ther, neither of those cases involved pretrial detainees.

12

“{C]Jentral to all other corrections goals is the insti-

tutional consideration of internal security within the

corrections facilities themselves. It is in the light of

these legitimate penal objectives that a court must

assess Challenges to prison regulations based on as-

serted constitutional rights of prisoners.” Pell v.

Procunier, 417 U.S. 817, 823 (1973).

In the case of inmate challenges to prison practices, the

general rule is that the practice is valid if it bears a ra-

tional relationship to any legitimate prison interest. E.g.,

Jones v. North Carolina Prisoners’ Labor Union, 433

U.S. 119, 129 (1977).

A. Warden Frame Did Not Violate the Prisoner’s Right to

Due Process of Law During the Four and One-Half

Days That He Spent in Segregation Before the Disci-

plinary Hearing.

1. Under Bell v. Wolfish, Warden Frame Did Not De-

prive the Prisoner of Due Process of Law Because

the Confinement to Cell C-22 Was Rationally Re-

lated to the Compelling Prison Interest of Preserv-

ing Security and Order.

Neither the District Court nor the Court of Appeals

made any reference to Bell v. Wolfish, 441 U.S. 520

1979), which is the leading case on the subject of the

constitutional rights of pretrial detainees. In Bell a class

of pretrial detainees challenged as unconstitutional a

myriad of conditions and practices at the Metropolitan

Correctional Center in New York City. The District

Court entered a broad injunction ordering changes in

many prison practices and that injunction was, in large

part, affirmed by the Court of Appeals for the Second

Circuit. The Court of Appeals held that pretrial detainees

could be subjected only to those restrictions that “inhere

in their confinement itself or which are justified by com-

pelling necessities of jail administration.” 441 U.S. at

523-24.

13

This Court rejected the “compelling necessity”

analysis and reversed. The Bell analysis began with a

recognition of the principle that detainees may not be

punished since they have not been found guilty of the

crimes with which they are charged. 441 U.S. at 535.

The only purpose for imprisoning a detainee is to insure

his presence at trial. Thus, although it may be necessary

to confine a detainee, the confinement is not punish-

ment, as such. Confinement in a prison necessarily

entails substantial restraints on a detainee’s liberty:

“Whether it be called a jail, a prison, or a custodial

center, the purpose of the facility is to detain. Loss

of freedom of choice and privacy are inherent

incidents of confinement in such a facility. And the

fact that such detention interferes with the detain-

ee’s understandable desire to live as comfortably as

possible and with as little restraint as possible dur-

ing confinement does not convert the conditions or

restrictions of the detention into ‘punishment’.” 441

U.S. at 537.

Thus, the applicable question in any case involving

a detainee’s challenge to the conditions of his confine-

ment is whether the challenged restraint is punishment,

on the one hand, or incidental to the legitimate govern-

mental purpose of confinement pending trial, on the

other hand. The Bell Court prescribed a test that focuses

on whether there is any reasonable relationship be-

tween the prison officials’ action and the prison’s inter-

ests:

“Absent a showing of an expressed intent to punish

on the part of detention facility officials, that deter-

mination generally will turn on ‘whether an alterna-

tive purpose to which [the restriction] may ration-

ally be connected is assignable for it, and whether it

appears excessive in relation to the alternative pur-

pose assigned [to it].’ Thus, if a particular condition

14

or restriction of pretrial detention is reasonably re-

lated to a legitimate governmental objective, it does

not, without more, amount to ‘punishment’. Con-

versely, if a restriction or condition is not reasonably

related to a legitimate goal — if it is arbitrary or pur-

poseless — a court permissibly may infer that the

purpose of the governmental action is punishment

that may not constitutionally be inflicted upon de-

tainees qua detainees. Courts must be mindful that

these inquiries spring from constitutional require-

ments and that judicial answers to them must re-

flect that fact rather than a court’s idea of how best

to operate a detention facility.” 441 U.S. at 538-39

(emphases added, citations omitted, footnotes omit-

ted).

In short, unless there is evidence that prison officials in-

tended to punish a detainee, their actions cannot be dis-

turbed so long as there is some reasonable connection

between the challenged conduct and a legitimate gov-

ernmental objective. Moreover, prison officials must be

given wide berth in determining what measures are rea-

sonably related to the unenviable task of operating a safe

and secure prison.

There are at least two government objectives associ-

ated with the confinement of pretrial detainees. First,

the restraint on liberty of charged but unconvicted pris-

oners is justified by the need to insure that person’s

presence at trial. Second, having committed a detainee

to prison pending trial, the government has an important

interest in operating the prison facility in a proper, se-

cure and orderly manner. The Bell Court recognized that

the government’s management interest is no small mat-

ter:

“These legitimate operational concerns may require

administrative measures that go beyond those that

are, strictly speaking, necessary to ensure that the

15

detainee shows up at trial. For example, the govern-

ment must be able to take steps to maintain security

and order at the institution and make certain no

weapons or illicit drugs reach detainees. Restraints

that are reasonably related to the institution’s in-

terest in maintaining jail security do not, without

more, constitute unconstitutional punishment,

even if they are discomforting and are restrictions

that the detainee would not have experienced had

he been released while awaiting trial.” 441 U.S. at

540 (emphasis added, footnote omitted).

Based on the above analysis, this Court upheld a se-

ries of prison policies and practices against constitu-

tional challenge, including the practice of double bunk-

ing, a policy that prohibited inmates from receiving

literature from sources other than the publisher or book

clubs, a prohibition on receiving packages from the out-

side, the practice of not permitting inmates to observe

cell searches and the policy of requiring inmates to sub-

mit to body cavity strip searches following contact visits.

Both the District Court and the Court of Appeals

failed to recognize the applicability of Bell v. Wolfish’.

9. Other Courts of Appeal have reached different conclusions

under similar conditions. Jones v. Mabry, 723 F.2d 590 (8th Cir.

1983), is illustrative. There, plaintiffs were a group of inmates who

had participated in an escape attempt and an incident in which a

group of inmates had refused to leave the dayroom. Prison officials

created a new high-risk inmate classification for these inmates and

placed them in segregation. They were required to wear leg irons

and shackles when they left their cells; they were strip searched

upon entering and leaving the cell; and most other privileges in-

cluding exercise and showers were sharply curtailed. Applying the

test announced in Bell v. Wolfish, supra, the Eighth Circuit upheld

the prison officials’ decisions, observing that:

“It is for them, not us, to make this sort of decision in the first

instance, and the courts should intervene only when complain-

ing inmates have carried the burden of proving a clear excess

on the part of the defendant officials. These issues, at bottom,

are questions of judgment and degree, and on such questions

16

On July 30, 1981, inmate Pless went beserk and, in a

nearly homicidal! rage, he viciously attacked an unarmed

prison guard with his fists, feet and a wooden bench,

and he also attempted to break into the prison Control

Room. In fact, one could hardly imagine a situation in-

volving an unarmed inmate, acting alone, that posed a

greater threat to prison security. Faced with this episode

of extreme violence, the prison officials decided that it

was necessary to immediately place Pless in the single

most secure cell in the prison. That cel! was a clean,

lighted cell in the segregation area that lacked any im-

plements that conceivably could be used for purposes of

destruction.

The District Court recognized that plaintiff had en-

gaged in “outrageous assaultive behavior” and that his

behavior “posed a serious threat to prison security” that

justified his immediate transfer to solitary confinement.

However, the District Court apparently considered the

conditions that the prisoner was subjected to in Cell C-

22 to be unnecessarily harsh and were thus “punish-

NOTE 9 — (Continued)

we should be slow to substitute our judgment for that of the

officials who must deal with the situation first-hand.” 723 F.2d

at 595.

Notably, the Jones Court was somewhat troubled by the use of leg

irons and shackles, especially after the security risk posed by the in-

mates seemed to the Court to have subsided. Consistent with its du-

ties under Bell v. Wolfish, the Eighth Circuit nevertheless deferred

to the prison officials’ judgment:

“It may be, as plaintiffs argue, that they were kept in leg irons

longer than necessary, and that the emergency created by the

escape attempt had been successfully dealt with. . . . It is easy

enough, with hindsight, to criticize the reaction of prison offi-

cials. .. . Under all the circumstances, we believe that the ac-

tion taken was intended to prevent future escapes and to main-

tain security within the East Building, and that the means

employed were not so clearly disproportionate, when measured

against these purposes, as to deserve condemnation as ‘puni-

tive.’ 723 F.2d at 595.

This is precisely the analysis that both the District Court and the

Court of Appeals failed to perform in this case.

17

ment”, as opposed reasonable measures taken to protect

the order and security of the prison environment.

The District Court was wrong for two fundamental

reasons, both dictated by the Bell decision. First, in leap-

ing to the conclusion that pre-hearing detention in Cell

C-22 was punitive rather than security related, the Court

failed to give prison officials the benefit of the deference

that is due them. Chester County officials, who had just

witnessed one of their number receive a cruel beating at

the hands of a prisoner, made an on-the-spot judgment

to place the inmate in the prison’s most secure cell. Sig-

nificantly, they did so without a hint of harassment,

much less violence, on their part. That decision, made in

the heat of battle, was lightly brushed aside by the Dis-

trict Court, which was guided by the 10,000 watt light of

hindsight.

Second, none of the conditions in Cell C-22, either

singly or in combination, were so totally unrelated to the

prison’s interest in separating an uncontrollable inmate

from implements of destruction as to offend the notions

of fairness that underlie the due process clause of the

Fourteenth Amendment:

(1) Food

The trial court described plaintiff as a vegetar-

ian who “has particularly strong religious convic-

tions which preclude his eating pork in any form”?!°,

and it appeared troubled by the fact that his dietary

preferences were not catered to. Yet, plaintiff's com-

plaints about the food were minimal. He testified

that “[a] lot of food they brought to me had pork in

it” and, when he complained, “|s]ometimes it was

corrected but a lot of times, you know, the food had

pork in it.” (N.T. 6). His only other comment about

10. There is no evidence in the trial record that plaintiff's

“vegetarian” preference was based on religious convictions. In addi-

tion, the evidence showed that his “vegetarian” life-style did not

prevent him from eating chicken and fish. (N.T. 6,35).

18

the food was a concession that meals were accom-

panied by juice and coffee. (N.T. 12). In any event,

even if the prisoner's dietary preferences occasion-

ally were not heeded, this hardly rises to the level of

arbitrary and purposeless “punishment” that would

be forbidden. In fact, in the course of discussing the

Eighth Amendment issue, the District Court recog-

nized that plaintiff received “at least minimally ade-

quate nourishment during the entire period.” Dis-

trict Court Memorandum and Order, App. at A-8.

(2) Plumbing Fixtures

The District Court also seemed disturbed by

the fact that Cell C-22 was devoid of conventional

plumbing fixtures. There was no running water in

the cell and, instead of a conventional toilet, the cell

was equipped with a tamper-proof waste facility that

was level with the ground. The toilet could be

flushed from inside the cell, although it was neces-

sary for a guard to turn the water on. Plaintiff

complained that, in order to relieve himself, he was

required to “squat like an animal.” Significantly,

there is no suggestion in the record that human

waste was permitted to accumulate while Pless was

in the cell or that it was otherwise unclean. In fact,

the evidence showed that plaintiff was periodically

given a mop or broom for the purpose of cleaning

his cell. (N.T. 35-36). Although the absence of a

conventional toilet might be considered by persons

other than outdoorsman and those who have served

in the military as unpleasant, it is neither

unhealthy, inhumane nor unrelated to prison secu-

rity. Plumbing is capable of being\destroyed and

pieces of plumbing fixtures are susceptible of being

used as weapons. Given the fact that plaintiff was

prone to episodes of extreme violence, it was not ir-

rational to place him in a celi that lacked plumbing

fixtures.

(3) Lack of Exercise

The District Court also disapproved of the fact

that plaintiff was not given an opportunity to have

exercise out of his cell. Plaintiff was assigned to Cell

C-22 on a twenty-four hour lockup basis. Clearly,

there is a direct and reasonable relationship be-

tween prison security — plaintiff had committed an

act of extreme violence — and his confinement to a

cell on a twenty-four hour basis. There was a clear

and present danger that he would assault others.

That risk necessarily eliminated the opportunity for

exercise outside the confines of his cell, but there

was nothing to prevent the prisoner from engaging

in exercise such as calisthenics inside his cell.

(4) Mattress

Cell C-22 is a bare cell; it lacks any furniture

including a mattress. Yet mattresses, like other

items of property, can be put to dangerous uses.

Mattresses have metal coils that could be fashioned

into crude weapons and strips of fabric can be used

to make mischief as well. As such, it was not irra-

tional to place a violent inmate in a cell that lacked a

mattress, at least until his condition was stabilized.

Further, the absence of a mattress in a segregation

cell for a short period of time is not a condition that

rises to the level of a constitutional violation. Thus,

the District Court itself found that the eight days of

post-hearing confinement without a mattress was

not cruel and unusual “punishment”:

“He was required to sleep on the floor, without

adequate bedding and without normal cloth-

ing; but it was summertime, and plaintiff ap-

parently did obtain adequate rest.” District

Court Memorandum and Order, App. at A-8.

Those same considerations should have prompted

the District Court to defer to prison officials’ deci-

20

sion not to allow Pless a mattress during the first

four and one-half days of his stay in Cell C-22.

(5) Showers and Washing

The trial court also took umbrage at the fact

that Pless was denied showers and the opportunity

to wash. Yet, the evidence is clear that he was

permitted to shower before Court appearances

(N.T. 20, 37, 39). Moreover, Pless was on a twenty-

four hour lockup status, the purpose of which was

to isolate him from all other persons in the prison in

light of the attack on Officer Hunt that immediately

preceded his confinement. In addition, the absence

of showering privileges for the four and one-half

days before the hearing is in any event inconse-

quential.

2. The District Court Disregarded the Letter and Spirit

of Hewitt v. Helms

The District Court disregarded and the Court of Ap-

peals paid mere lip service to Hewitt v. Helms, 103 S. Ct.

864 (1983), a recent decision of this Court that ad-

dresses the question of what procedural protections

must be afforded to prisoners under due process clause

of the Fourteenth Amendment in connection with trans-

fers from general population to administrative segrega-

tion. Hewitt arose from strikingly similar facts involving

an inmate riot at the Pennsylvania State Prison at Hunt-

ingdon. Inmate Helms assaulted a guard and in the

aftermath of the assault several groups of inmates at-

tempted to seize the prison control center and other key

posts. A number of guards were injured, and the inter-

vention of the state police, local law enforcement

authorities and off-duty prison guards was necessary to

restore calm.

Following the riot, inmate Helms was questioned

about his role in the riot, and he was immediately placed

in administrative segregation pending investigation of

21

his role in the riot. The next day, he was given a miscon-

duct report which accused him of assaulting officers and

conspiring to take over the control center. Five days later

a hearing was held on the charges and no finding was

made. Almost one month after the riot took place, a com-

mittee of three prison officials met to review inmate

Helms’ status in administrative segregation and con-

cluded that he would be a danger to staff and other in-

mates if he were released into the prison population.

Two weeks after that a second misconduct report was is-

sued charging Helms with assaulting yet another officer

during the riot. A hearing was held on that charge, and

the hearing committee found Helms guilty and ordered

him confined to disciplinary segregation for six months.

Against that factual background, the Court of Ap-

peals for the Third Circuit held that Pennsylvania prison

regulations gave rise to a protectable liberty interest, and

it remanded the case for an evidentiary hearing concern-

ing the nature and adequacy of the first prison disciplin-

ary hearing. This Court agreed that Pennsylvania’s de-

tailed regulations concerning segregated confinement

created a protectable liberty interest, but it reversed the

judgment of the Court of Appeals on the basis that the

inmate had received all of the process that was due him

under the Fourteenth Amendment.

The Hewitt Court was guided in its analysis by tv/o

fundamental considerations concerning the constitu-

tional rights of prisoners. First, the Court noted that “we

have recognized that broad discretionary authority is

necessary because the administration of a prison is ‘at

best an extraordinarily difficult undertaking... .’” 103

S. Ct. at 869, quoting Wolff v. McDonnell, 418 U.S. 539,

566 (1974). Second, it was noted that Supreme Court

decisions have “consistently refused to recognize more

than the most basic liberty interests in prisoners.” 103 S.

Ct. at 869.

In the Hewitt Court’s judgment, the very strong

government interest in maintaining prison s<curity and

22

in segregating the inmate pending the outcome of the

investigation greatly outweighed the inmate’s slight pri-

vate interest in remaining in the general prison popula-

tion. Accordingly, the Court concluded that the due

process clause required only that prison officials hold an

“informal, nonadversary evidentiary review” of the

charges that resulted in the transfer. 103 S. Ct. at 872 &

874. Moreover, there is nothing that would require that

the informal review take place before transfer; it need

only be done within a reasonable time afterwards:

“The proceeding must occur within a reasonable

time following an inmate’s transfer, taking into ac-

count the relatively insubstantial private interest at

stake and the traditionally broad discretion of prison

officials.” 103 S. Ct. at 874 n. 8 (emphasis added).

The Court so held even though the conditions in segre-

gation imposed what it described as “severe hardships”.

103 S. Ct. at 869 n.4.

The hearing that the Hewitt Court found adequate

took place five days after the inmate’s transfer to segre-

gation. This case is virtually indistinguishable. Inmate

Pless was given his hearing within four and one-half

days. Thus, not only were the Chester County officials

justified in immediately transferring Pless to segrega-

tion, but they also gave him a hearing within a reason-

able time. Under the circumstances, it is difficult to

fathom the constitutional basis that prompted the Dis-

trict Court to find that the due process clause of the

Fourteenth Amendment was violated by subjecting in-

mate Pless to Cell C-22 for the four and one-half days be-

fore the hearing. The District Court reached that conclu-

sion despite the fact that:

(a) it found that it was not improper to subject

the prisoner to the sume conditions after the hear-

ing;

(b) the prison officials had permissibly trans-

ferred him to segregation before the hearing; and

23

(c) the hearing was heid within a reasonable

amount of time.

Simply put, the District Court’s reasoning was pure

sophistry.

B. A Hearing Was Not Necessary Because Pless Has Re-

peatedly Conceded That He Attacked Officer Hunt.

Inmate Pless has readily acknowledged that he was

guilty of attacking a prison guard. He does not and never

has contended that a hearing was a prerequisite to con-

fining him to Cell C-22. Instead, his complaint has al-

ways been that Chester County prison officials violated

his federal constitutional rights by subjecting him — re-

gardless of his conduct — to conditions that were

lacking in the basic amenities to which he was accus-

tomed. To put it another way, his position was that no

inmate may ever be placed in Cell C-22 no matter how

great a threat he poses to the security of the institution.

In paragraph 7 of his Complaint, Pless explicitly

stated that he pleaded guilty at the prison disciplinary

hearing to attacking Hunt:

“On 8/4/81, Pless was given a disciplinary hearing

by Capt. Rilatt, Sgt. Gray, and C.O. 1 Poles. Pless

was charged with ‘assaulting an officer’, C.O. 1

Hunt. Plaintiff Pless, plead [sic] guilty, and was sen-

tenced to 120 days in Cell ‘C-22’.”

The Complaint goes on to describe the litany of indigni-

ties that he was allegedly subjected to.!! In addition,

Pless admitted his guilt at trial, repeatedly describing his

11. The force of Pless’ allegation that he pleaded guilty at the

prison hearing is not diminished by the fact that Warden Frame in-

troduced a document that suggested that the inmate had in fact

claimed that he had acted in self-defense. (N.T. 54). The point is

that plaintiff in this action has claimed from the very outset that he

had in fact attacked a prison guard, and the hearing was thus irrele-

vant because there were no disputed material facts.

24

conduct as an “assault” on Officer Hunt. In fact, when

the trial judge described the attack as a “scuffle”, Pless

corrected him. Further, Pless was convicted of the state

court criminal charge of aggravated assault and battery,

and sentenced to additional prison time. There is no sug-

gestion in the record that he contested his guilt on that

occasion either. In sum, the prisoner has never disputed

that his conduct was, as the District Court found, “outra-

geous assaultive behavior,” and he has never contended

that there was any significance to the prison hearing.

The purpose of the due process clause of the Four-

teenth Amendment is to afford persons facing a loss of

protected liberty interests a forum for deciding disputed

questions of fact:

“(T]he remedy mandated by the Due Process

Clause of the Fourteenth Amendment is ‘an oppor-

tunity to refute the charge.’ Codd v. Velger, 429 U.S.

624, 627 (1977) (per curiam) (citation omitted).

In Codd plaintiff, in a complaint alleging claims under

42 U.S.C. §1983, asserted that a report that appeared in

his personnel file to the effect that he had attempted sui-

cide stigmatized him, but he made no allegation that the

report was false. Rejecting the argument that he was en-

titled in any event te a hearing to clear his name, this

Court observed that:

“{I]f the hearing mandated by the Due Process

Clause is to serve any useful purpose, there must be

some factual dispute between an employer and a

discharged employee which has some significant

bearing on the employee’s reputation. Nowhere in

his pleadings or elsewhere has [plaintiff] affirma-

tively asserted that the report of the apparent sui-

cide attempt was substantially false.” 429 U.S. at

627.

Here, likewise, there was no need for a hearing to refute

the charge of assaulting an officer because the charge

was not disputed.

25

The District Court, for reasons that are not readily

apparent, considered the date of the hearing as the piv-

otal moment that transformed an unlawful punitive in-

carceration into a lawful one. Yet, as pointed out above,

the hearing was and should be considered as having no

significance. Pless assaulted Officer Hunt, he admitted

in his complaint that he pleaded guilty to assaulting offi-

cer Hunt at the prison hearing and he admitted at the

trial of this action that he assaulted Officer Hunt. The

only relevant question should have been whether, in

light of Piess’ unprovoked and vicious assaults on Officer

Hunt, his confinement to Cell C-22 was so unrelated to

the prison’s security and order as to be arbitrary and pur-

poseless. The answer, of course, is that it was not.

CONCLUSION

The Court should grant the Petition for Certiorari

for the following reasons:

(1) The District Court apparently failed to con-

sider — and if it did consider, seriously miscon-

strued — Bell v. Wolfish, 441 U.S. 520 (1979),

which is the leading case governing constitutional

challenges to treatment of pretrial detainees. Under

Bell, prison officials may, in the interest of preserv-

ing prison security, do anything that is reasonably

related to that vital goal. Moreover, officials’ judg-

ments about what is necessary to the maintenance

of order are entitled to wide latitude. Only if, consid-

ering the deference owing to the officials’ decisions,

the Court finds that the actions were arbitrary or

purposeless, is the due process clause of the Four-

teenth Amendment violated.

(2) The District Court disregarded Hewitt v.

Helms, 103 S.Ct. 864 (1983). Hewitt reaffirmed

that prison officials have broad discretionary author-

ity to transfer inmates from general population to

26

segregation. Hewitt also held that the due process

clause is satisfied if a hearing is provided within a

reasonable time after the transfer to segregation.

(3) The District Court attached pivotal impor-

tance to the prison disciplinary hearing; confine-

ment to Cell C-22 before the hearing was unconsti-

tutional, and confinement to the same cell after the

hearing was lawful. The hearing, however, is irrele-

vant. The prisoner does not and never has con-

tended that the charge of assaulting an officer was

false. Under Codd v. Velger, 429 U.S. 624 (1977)

(per curiam), the Constitution does not require a

hearing where there is no material dispute of fact.

To the extent that judges, lawyers and laymen

might find the thought of segregated confinement under

the spartan conditions that exist in Cell C-22

discomforting in the abstract, the following admonition

from Bell v. Wolfish, supra, aptly summarizes the limited

role of the judiciary in passing upon the constitutionality

of the conditions in segregated confinement areas of

prisons:

“{Many courts] have, in the name of the Constitu-

tion, become increasingly enmeshed in the minu-

tiae of prison operations. Judges, after all, are hu-

man. They, no less than others in our society, have a

natura! tendency to believe that their individual so-

lutions to often intractable problems are better and

more workable than those of the persons who are

actually charged with and trained in the running of

the particular institution under examination. But

under the Constitution, the first question to be an-

swered is not whose plan is best, but in which

branch of the Government is lodged the authority to

initially devise the plan. This does not mean that

constitutional rights are not to be scrupulously ob-

served. It does mean, however, that the inquiry of

federal courts into prison management must be

27

limited to the issue of whether a particular system

violates any prohibition of the Constitution. . . .The

wide range of ‘judgment calls’ that meet constitu-

tional and statutory requirements are confided to of-

ficials outside of the judicial branch of govern-

ment.” 441 U.S. at 562.

Respectfully submitted,

Thomas J. Ziomek

*David E. Sandel, Jr.

Thomas J. Rueter

White and Williams

1234 Market St.

Philadelphia, Pa. 19107

“Counsel of Record

John S. Halsted

Janet M. Colliton

119 North High St.

West Chester, Pa. 19380

APPENDICES

APPENDIX A

A-]

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GREGORY PLESS, et al. Civil Action

Vv. ;

RONALD J. MARKS, et al. No. 81-4463

MEMORANDUM AND ORDER

FULLAM, J. March 30, 1983

During the evening hours of July 30, 1981, correc-

tions officers on duty at the Chester County Prison were

directed to conduct a cell search in the G-block. Prison

regulations contemplated that at least one of the occu-

pants of a cell should be present during the search, to

witness the fact that no improprieties were occurring.

One of the cells being searched was occupied by plain-

tiff, Gregory Pless, and a cellmate; only the cellmate was

present when the officers commenced the search.

Plaintiff took umbrage, objected to the search, and

cursed the officers. They reported the incident to their

superiors. At about 10:30 p.m., Officer Hunt attempted

to serve upon plaintiff a citation charging him with the

major misconduct of insabordination [sic], cursing an of-

ficer, threating [sic] an officer.” After an exchange of

words, plaintiff struck Mr. Hunt in the face with his fist.

Another officer separated the combatants, and ran to the

control room to call for assistance. Plaintiff attempted to

enter the control room, but was prevented from doing so,

whereupon he returned to Mr. Hunt and continued to

beat and kick him, eventually throwing a bench upon

him as he lay on the floor. Mr. Hunt required hospital-

ization.

Plaintiff was immediately placed in segregated con-

finement in cell C-22, a “medical isolation” cell for un-

usually disruptive prisoners. On August 4, 1981, plain-

tiff was given a hearing on the pending disciplinary

A-2

charges. Plaintiff contended that he had acted in self-de-

fense, but the Disciplinary Board rejected that defense,

and imposed the sanction of i20 days segregated con-

finement in isolation (30 days for the original offense of

resisting the cell search and cursing the officer, and 90

days for the assault on Officer Hunt). Criminal charges

were also lodged against plaintiff, and he was eventuaily

convicted and sentenced for aggravated assault and bat-

tery.

Plaintiff filed this action, under 42 U.S.C. §1983, to

recover damages stemming from this series of events.

Plaintiff now acknowledges that he was properly sub-

jected to disciplinary measures for the insubordination

and the assault on the officer, but contends that he was

subjected to “cruel and unusual punishment” in viola-

tion of the Eighth Amendment, and was deprived of due

process of law.

The conditions to which plaintiff was subjected in

cell C-22 were indeed severe. The cell contained no

bunk, mattress, or bed-clothing. There was no running

water. The only plumbing consisted of a hole in the floor.

In order to use this facility, plaintiff complains, he was

required to squat “like an animal”. While it was possible

to flush the device after use, this necessitated a request

to the guard to turn on the water from a control located

outside the cell, whereupon plaintiff could flush the toi-

let, and the water would then be turned off again.

Plaintiff testified that he was not supplied with

drinking water, except on occasions when other inmates

would manage surreptitiously to provide him with a cup

of water. The defendants maintain that drinking water

was available from the guard on request. Plaintiff con-

cedes that, on occasion, a guard would heed such re-

quest and provide him with a paper cup of water. It ap-

pears to be undisputed that water was not supplie1 in

any quantity suitable for washing. It is also undisputed

that plaintiff was not provided with a toothbrush or other

A-3

basic hygienic needs; the defendants’ position is that

plaintiff never requested any such amenities.

Plaintiff was confined in cell C-22 continuously, 24

hours per day, from July 30 to August 13, 1981, when he

was transferred to cell C-16. Thereafter, he was confined

to his cell 22 hours per day, and was permitted exercise

outside his cell for two hours daily.

When first placed in cell C-22 on July 30, plainuff

was permitted to wear his trousers, underpants, and (ac-

cording to the defendants, although the plaintiff dis-

putes this) a T-shirt. It is agreed that he was not

permitted a shirt or other clothing. Throughout his en-

tire period in that cell, plaintiff slept on the floor. Ini-

tially, he had no bed clothing of any kind, but one of the

guards, on his own initiative, provided plaintiff with a

blanket after a day or two.

On a more or less daily basis, plaintiff was provided

with a broom or mop with which he could clean up the

cell.

Plaintiff testified that during the entire period, from

July 30 to August 13, he was permitted to take a shower

on only two occasions (immediately before scheduled

court appearances). This testimoriy finds support in the

“daily isolation log” (in which guards recorded their ob-

servations of the plaintiff, at first every half-hour, and

later every hour). The logs reflect that plaintiff was

permitted to take a shower on August 7 at 2 p.m., August

8 at 2 p.m., August 12 at 9 a.m., and August 18 at 3 p.m.

And, beginning August 24, 1981, plaintiff was taken out

of his cell to attend court proceedings rather frequently;

plaintiff testified that he was able to take a shower on

some or all of those occasions (in an area of the prison

not covered by the log entries).

Plaintiff is a vegetarian, and has particularly strong

religious convictions which preclude his eating pork in

any form. Throughout his confinement in cell C-22 and

C-16 (i.e., from July 30, 1981 to mid-December of that

year) he was presented with regular prison fare on a

A-4

“take-it-or-leave-it” basis. It is clear that plaintiff felt

obliged to omit many meals entirely (e.g., where the only

vegetables were ‘contaminated’ by pork). On other occa-

sions, plaintiff was able to subsist on the vegetable por-

tions of the meals, skipping the main course. The defen-

dants made no attempt to accommodate plaintift’s

dietary preferences.

The task before the court is to determine whether

the foregoing circumstances and chain of events worked

a violation of one or more of plaintiff's constitutional

rights.

With respect to the due process claims, it should be

noted that plaintiff was afforded a hearing on August 4,

1981. He was informed of the charges, and had an op-

portunity to refute them. Thus, his post-August 4 soli-

tary confinement cannot be regarded as a deprivation of

liberty without due process of law. The issue, then, is

whether it was permissible to impose punitive segrega-

tion from July 30, 1981 to August 4, in advance of the

hearing. In my view, the prison authorities cannot be

faulted for imposing solitary confinement during that

period. Plaintiff's outrageous assaultive behavior on July

30 posed a serious threat to prison security, and it was

obviously not unreasonable to segregate plaintiff imme-

diately, pending the hearing.

This does not mean, however, that it was permissi-

ble to punish plaintiff without a hearing, or to impose re-

strictions unrelated to the legitimate objective to pre-

serving prison security and restoring order. And it is

impossible, on this record, to avoid the conclusion that

the treatment accorded plaintiff during that four-day pe-

riod represented punishment, as opposed to security pre-

cautions. For example, the governing regulations in-

clude the following provisions, Chapter 37, Pennsyl-

vania Code:

“95.229. Bedding

“(a) Minimum requirements. The minimum re-

A-5

quirements regarding bedding for prisoners are as

follows:

‘“(1) Each prisoner shall be provided with a

bed, mattress, sheets, and blankets appropriate

for the temperature.

“(2) Each prisoner shall be provided a pil-

low and pillow case.

“(3) Sheets and pillowcases shall be

cleaned on a weekly basis and before reissue.

‘“(4) Blankets shall be laundered or steril-

ized on a regular basis.

(5) Mattresses shall have a waterproof and

fire-resistant cover and shall be sterilized on a

regular basis for the maintenance of good hy-

giene.

“(6) Pillows shall have a waterproof and

fire-resistant cover and be sterilized on a regu-

lar basis for the maintenance of good hygiene.

a * *

“95.231 Personal Hygiene

“Minimum Requirements. The following are

the minimum requirements applicable for personal

hygiene:

“(1) All prisoners shall bathe no less than

twice a week and preferably daily if the physical

facilities allow.

(2) The jail shall provide all prisoners with

soap, clean towels, razor, toothbrush, and hot

and cold water for bathing and shaving.

x x *

“95.233 Visiting

“(a) Minimum Requirements. The following

are the minimum requirements relating to visiting

prisoners (1)...

“(2) Prisoners shall not be denied visits or

A-6

mail to family memebers [sic] or approved

friends as punishment, unless the reason for

the denial is due to serious violation of the visit-

ing or mail rules and regulations or there is an

obvious security threat.

a a” sa

“95.240 Discipline and Punishment

“(a) Minimum Requirements. The following

minimum requirements shall apply to discipline

and punishment.

a cd uw

“(10) Conditions in segregation shall be as

follows:

“(i) The cell shall be clean, well-

lighted, heated, ventilated, and sanitary.

“(ii) The cell shall be furnished with a

mattress, bedding, and toilet facilities.

“(iii) Except in special circumstances,

as for example, a suspected suicide threat,

the prisoner shall be allowed to wear regu-

lar clothing.

cd um cd

“(v) A bathing and shaving schedule

shall be maintained, including the mini-

mum or twice weekly opportunities.

“(vi) Toilet tissue and drinking water

shall be provided.

“(vii) The prisoner shall have an op-

portunity to exercise.

* a a

“(12) Corporal punishment, punishment

by placing in a dark cell, and all cruel, inhu-

man, or degrading punishment shall be com-

pletely prohibited. .. .”

A-7

Defendants concede that the cell in which plaintiff was

confined was not equipped with a bed or mattress; and

the evidence makes clear that no bed clothing of any

kind was provided for a couple of days at least, and that

only a blanket was provided thereafter. Counsel for de-

fendants sought to explain this deficiency on the ground

that, over a period of time not long before the incident in

question, there had been instances of prisoners setting

fire to bedding, causing damage to the prison and great

danger to other inmates. Hence, it is argued, it was rea-

sonable for the prison authorities to remove such items

as bunks and bedding from the cell reserved for the most

disturbed inmates. The proffered defense must be re-

jected, for several reasons. In the first place, there is no

evidentiary support for the argument. That is, there is no

evidence that the earlier alleged occurrences actually

did occur, and no prison official advanced this as an ex-

planation for the treatment accorded plaintiff. Moreover,

there is nothing in the record to suggest that this plain-

tiff could reasonably be perceived as likely to set fire to

his bedding; or that anyone thought it really necessary to

guard against that possibility. In addition, plaintiff was

being observed every half-hour and presumably was, or

could readily have been, deprived of access to a source of

combustion.

I conclude, therefore, that to the extent plaintiff was

deprived of decent bedding materials, access to showers

and minimal sanitary facilities, and kept deprived of a

reasonable opportunity for exercise, during the period

from July 30 to August 4, 1981, he suffered punishment

without due process of law.

It is also clear that, in various respects, plaintiff's re-

maining period of confinement in celi C-22 and, to a

lesser extent, his confinement thereafter in cell C-16,

subjected him to conditions which violated the applica-

ble regulations, but it does not necessarily follow that

plaintiff's Eighth Amendment right to be free from cruel

and unusual punishment was therefore infringed. While

A-8

the issue is close, I am not prepared to hold that, viewed

in its entirety, the punishment inflicted upon plaintiff

after the hearing violated his constitutional rights. He

was required to sleep on the floor, without adequate bed-

ding and without normal clothing; but it was summer-

time, and plaintiff apparently did obtain adequate rest.

He was deprived of two hours of exercise outside his cell,

but he was able to obtain exercise within the cell. The

defendants have not established any justification for

disregarding plaintiff's special dietary needs, but plain-

tiff apparently obtained at least minimally adequate

nourishment during the entire period.

I conclude, therefore, that plaintiff is entitled only to

recover damages for the pre-hearing punishment, to the

extent that permissible segregation was enhanced by

the substandard conditions to which he was subjected. I

conclude that a total award of $100 will adequately com-

pensate plaintiff for that enhancement. The oniy defend-

ant liable to plaintiff, on this record, is the warden,

Thomas G. Frame who, it is apparently conceded, au-

thorized and approved the arrangement. No attempt has

been made to establish a defense of good-faith immu-

nity; in any event, that defense would not be available, in

view of the clear violations of governing regulations.

Judgment will therefore be entered in favor of the

plaintiff and against the defendant Frame in the sum of

$100. All claims against the remaining defendants will

be dismissed.

A-9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GREGORY PLESS, et al. : CIVIL ACTION

V.

RONALD J. MARKS, et al. : NO. 81-4463

ORDER

AND NOW, this 30th day of March, 1983, it is OR-

DERED:

1. Judgment is entered in favor of the plaintiff

Gregory Pless and against the defendant Thomas G.

Frame in the sum of $100.

2. As to all other defendants, this action is DIS-

MISSED.

3. All claims of the plaintiff Thomas J. Moore are

DISMISSED, for lack of prosecution.

/s/

Fullam, J.

APPENDIX B

A-10

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1292

THOMAS J. MOORE, GREGORY PLESS, et al.

Appellees

v.

RONALD J. MARKS, COMMISSIONER THOMAS G. FRAME,

WARDEN H.C. MAJOR DE BRUYN, et al.

Agents and employees

Pennsylvania Bureau of Corrections

THOMAS G. FRAME,

Appellant

An Appeal from the Order of the United States District

Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 81-4463)

District Judge: Honorable John P. Fullam

Submitted under Third Circuit Rule 12(6)

January 24, 1984

Before: GIBBONS, BECKER, Circuit Judges, and

ATKINS, District Judge*

(Filed January 27, 1984)

MEMORANDUM OPINION OF THE COURT

BECKER, Circuit Judge.

This civil rights action was brought under 42 U.S.C.

§1983 by appellee Gregory Pless, who, at all times rel-

* Honorable C. Clyde Atkins, United States District Judge for

the Southern District of Florida, sitting by designation.

A-11

evant to this action, was an inmate of Chester County

Prison. Appellants are the administrators of the prison.!

Pless claims that the actions of appellant Thomas G.

Frame, Warden of the prison,” in confining him under

punitive conditions without a hearing after he attacked a

prison correctional officer violated his rights under the

due process clause of the Fourteenth Amendment. Pless

also claims that the conditions of his confinement were

so severe as to amount to cruel and unusual punishment

in violation of the Eighth Amendment. After a bench

trial, the district court found that Pless had not been

subjected to cruel and unusual punishment. The court

found, however, that, for the four-day period between

the assault and the disciplinary Board hearing concern-

ing the attack on the guard, he had been confined in

conditions so deficient that they exceeded the permissi-

ble restraints of administrative segregation and consti-

tuted “punishment without due process of law.” Warden

Frame was found liable, and damages were assessed in

the amount of $100. The Warden appeals.

The facts as found by the district court are as fol-

lows. On July 30, 1981, corrections officers searched the

cells in Pless’ block. Pless cursed them, and was cited for

a misconduct. He then assaulted Officer Ronald Hunt

when Hunt attempted to serve the citation upon him;

Pless continually beat and kicked Hunt in the face and

stomach, causing him to require medical treatment.

Pless, clothed only in his trousers and underwear, was

immediately placed in isolated confinement. The cell in

which Pless was placed contained no bunk, mattress, or

bedding. The only plumbing consisted of a hole in the

floor which served as a toilet, and which could not be

flushed from the inside. There was no running water in

1. Appellee’s co-plaintiff was Thomas Moore, who has since

been discharged from prison, and his action dismissed for lack of

prosecution.

2. Two other defendants were named, but no liability was

found against them.

A-12

the cell to wash. Drinking water was not supplied, ex-

cept on the occasions when other inmates or the guards

heeded Pless’ requests for a cup of water. Pless was not

permitted to leave the cell, nor was he provided with a

toothbrush or other basic amenities for hygiene. Pless

was confined in these conditions twenty-four hours per

day until August 13, 1981, when he was moved into a

different cell block in which the conditions were less se-

vere.

On August 4, 1981, Pless was afforded a hearing be-

fore the prison disciplinary board. Rejecting his conten-

tion of self-defense, the Board imposed sanctions of 120

days of segregated confinement iz. isolation. He was

eventually charged, convicted, and sentenced in Chester

County Common Pleas Court for aggravated assault and

battery on Officer Hunt.

The district court, presented with these facts, con-

cluded that the overall conditions of confinement, al-

though violative of applicable state regulations, were not

cruel and unusual punishment within the prohibition of

the Eighth Amendment. The court further held that ap-

pellee’s post-hearing solitary confinement was not a de-

privation of liberty without due process of law because,

at the August 4 hearing, he had been informed of the

charges against him and had been given an opportunity

to refute them. As to the four-day period before the hear-

ing, however, the court concluded that “to the extent

Pless was deprived of decent bedding materials, access

to showers and minimal sanitary facilities, and kept de-

prived of a reasonable opportunity for exercise during

the period from July 30 to August 4, 1981, he suffered

punishment without due process of law.”* The Court

noted in this regard that the conditions of confinement

to which Pless was subjected violated numerous state

regulations regarding minimal standards of incarcer-

3. The Court rejected appellee’s contention that these condi-

tions were justified by security concerns.

A-13

ation.” See 37 Pa. Code §§95.229, 95.231, 95.233, and

95.240.

The court recognized that, in view of the serious

threat to prison security posed by appellee’s assaultive

behavior, authorities acted properly in restricting him,

even prior to a hearing, in solitary confinement. See

Hewitt v. Helms, 103 S. Ct. 864 (1983). However, the

court also found that it was impermissible to “punish”

Pless without a hearing by imposing restrictions upon

him unrelated to the legitimate objective of preserving

prison security and restoring order, and that the condi-

tions of Pless’ confinement constituted punishment,?

thereby depriving Pless of a liberty interest without due

process in violation of the fourteenth amendment.

None of the district court’s factual findings are

clearly erroneous. Nor did the court misapply the appli-

cable law. The court conceded that the question was

close. We agree. But we also conclude that the district

court’s approach to the case was thoughtful and sensi-

ble, and that it correctly applied the law. The judgment

of the district court will be affirmed.

TO THE CLERK:

Kindly file the foregoing opinion.

EDWARD R. BECKER

Circuit Judge

DATED:

4. Anumber of cases have found the similar conditions consti-

tute cruel and unusual punishment. E.g., LaReau v. MacDougall,

473 F.2d 974 (2d Cir. 1972), cert. denied, 414 U.S. 878 (1973);

Craig v. Hocker, 405 F. Supp. 656 (D. Nev. 1975). Although we do

not go this far, we agree with the district court that the conditions

imposed on Pless further no legitimate interest of the prison other

than punishment.

APPENDIX C

A-14

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1292

THOMAS J. MOORE,

GREGORY PLESS, et al.

vU.

RONALD J. MARKS,

COMMISSIONER THOMAS G. FRAME,

WARDEN H.C. MAJOR DE BRUYN, et al.

Agents and employees

Pennsylvania Bureau of Corrections

THOMAS G. FRAME,

Appellant

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, GIBBONS,

HUNTER, WEIS, GARTH, HIGGINBOTHAM,

SLOVITER, BECKER, Circuit Judges, and

ATKINS, District Judge*

The petition for rehearing filed by Appellant,

Thomas G. Frame, in the above-entitled case having

been submitted to the judges who participated in the de-

cision of this court and to all the other available circuit

judges of the circuit in regular active service, and no

judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the cir-

cuit in regular active service not having voted for

“Honorable C. Clyde Atkins, United States District Judge for

the Southern District of Florida, sitting by designation.

A-i5

rehearing by the court in banc, the petition for rehearing

is denied.

By the Court,

Judge

Dated: February 28, 1984

; APPENDIX D

2a A-16

EXHIBIT D-3 -

CHESTER COUNTY FARMS PRISON

INCIDENT CITATION

DATE: /-5O -&/

NMATE'S NAME Pless -Grecary CELLG -.23

PLACE OF INCIDENT_G- Black os 22°

TIME OF INCIDENT ARADO TrIveE ISSUED ZAZo

(Iimmate may accept 24 hor lock-up)

- .

oS

Qe

tAJCR MISCONDUCT ea he rel,

a

1”?

anmate Zust appear betote Waseap

Board, may not accept 24 heur lc

misconduct report must acqpgmpany th

citation) # « ea

2 -( Inmate's Signature

a NOT to be construed

=

eu as admission of guilt

BP. 8

— (Officer's Signature)

apr me

\ ~

os |

win |

px EAPROCESSED 7) Ms EXHIBIT D-3

© BEST AVAILABLE COPY

APPENDIX E

A-17

COMPLAINT*

FORM TO BE USED BY A PRISONER IN FILING A

COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42

U.S.C. §1983

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS J. MOORE

GREGORY PLESS et al.,

Inmates of

Chester County Prison

(Enter above the full name of

the plaintiff in this action.)

v. C.A. #81-4463

COMMISSIONER RONALD J. MARKS,

WARDEN THOMAS G. FRAME,

MAJOR H.C. DE BRUYN, et al.

Agents and Employees

Pa. Bureau of Corrections

(Enter above the full name of the de-

fendant or defendants in this action. )

I. Previous Lawsuits

A. Have you begun other lawsuits in state or federal

court dealing with the same facts involved in this

action or otherwise relating to your imprison-

ment? Yes ( / ) No ( )

B. If your answer to A is yes, describe the lawsuit in

the space below. (If there is more than one law-

* The Complaint was on a form supplied by the District Court

for pro se prisoners. Petitioner has deleted sections of the Complaint

pertaining to an inmate, Thomas J. Moore, who is not a party to this

Petition. Misspellings have been noted but punctuation appears as

it did in the original.

A-18

suit, describe the additional lawsuits on another

piece of paper, using the same outline. )

1. Parties to this previous lawsuit

Plaintiffs Thomas J. Moore

Defendants Warden Thomas G. Frame

2. Court (if federal court, name the district; if

state court, name the county)

Eastern District of Pennsylvania

Docket number 81-3599

Name of judge to whom case was assigned

Hon. Richard A. Powers, III

5. Disposition (for example: Was the case dis-

missed? Was it appealed? Is it still pending?)

Still pending, filed, 9/4/81

6. Approximate date of filing lawsuit 9/4/81

7. Approximate date of disposition Pending

m Oo

II. Place of Present Confinement Chester County

Prison

A. Is there a prisoner grievance procedure in this in-

stitution? Yes ( ) No(/ )

EB. Did you present the facts relating to your com-

plaint in the state prisoner grievance proce-

dure? Yes ( ) No ( )

C. If your answer is YES,

1. What steps did you take?

2. What was the result?

D. If your answer is NO, explain why not In-

mates are supposed to complain to their counsel-

ors. The counselors usual replies are that, they

have no authority to assist us.

E. If there is no prison grievance procedure in the

institution, did you complain to prison authori-

ties? Yes(/ ) No ( )

F. If your answer is YES,

1. What steps did you take? Plaintiff Moore

has written to Commissioner Marks and re-

<Wreiei miei.

o£ PT NG See ey

A-19

quests to Central Control. Plaintiff has

copies. New directives prohibit signing of car-

bon copies.

2. What was thie result? Plaintiff Moore re-

ceived letter from Commissioners office, stat-

ing phone conversation with prison officials,

has assured Commissioners office, that all

administrative procedures, are within the

law. There still has been no change in prison

procedures.

II]. Parties

C.

(In item A below, place your name in the first

blank and place your present address in the sec-

ond blank. Do the same for additional plaintiffs, if

any. )

Name of Plaintiff Thomas J. Moore, Gregory

Pless, et al., inmates

Address Chester County Prison

(In item B below, place the fuli name of the de-

fendant in the first blank, his official position in

the second blank, and his place of employment in

the third blank. Use Item C for the names, posi-

tions, and places of employment of any additional

defendants).

Defendant Ronald J. Marks is employed at Com-

missioner Pa. Bureau of Corrections at Camp

Hill, Pa. 17011 - P.O. Box 598.

Additional Defendants Warden Thomas G.

Frame, Major H.C. DeBruyn, both of Chester

County Prison, R.D. #4, W. Chester, Pa., 19380,

el al., agents and employees of the Penna. Bureau

of Corrections

iV. Statement of Claim

(State here as briefly as possible the facts of your

A-20

case. Describe how each defendant is involved.

Include also the names of other persons involved,

dates, and places. Do not give any legal argu-

ments or cite any cases or statutes. If you intend

to allege a number of related claims, number and

set forth each claim in a separate paragraph. Use

as much space as you need. Attach extra sheet if

necessary. )

[Paragraphs 1 through 5 of Statement of Claim of

Plaintiff Moore are omitted]

6. On 7/30/81, Plaintiff Pless, was removed from

i0.

11.

G-Block to the “Punitive Isolation” Cell “C-

22”, by officers Anderson and Stevens.

On 8/4/81, Pless was given a disciplinary

hearing by Capt. Rilatt, Sgt. Gray, and C.O.1

Poles. Pless was charged with “assaulting an

officer”, C.O.1 Hunt. Plaintiff Pless, pled

guilty, and was sentenced to 120 days in Cell

“C-B2".

. Approximately (1) one hour after Pless’s hear-

ing, he was taken to Kennet Square, Pa., and

arraigned on criminal charges of “simple and

aggravated assault,” by District Justice, Eu-

gene J. DiFilippo, Jr.

. On 8/9/81, Pless’s sister, Ms. Linda Thomp-

son, arrived at the prison to visit. She was told

that Pless was on (24) twenty-four hour lock-

up, and that he was not to have anv visits for

the duration of his stay in this prison.

On 8/12/81, Counselor Dasch [sic], came to

Cell “C-22”, to inform Pless, that his attorney,

Mr. Angus Love, had called to speak with

him, on an unrelated matter, but that Central

Control had refused to allow Pless to speak

with his attorney on the phone.

On 8/13/81, Pless’s attorney, came to visit;

Pless was permitted to see him. After the legal

Ow

mo

A-21

visit, Pless was transferred from Cell “C-22”

to Cell C-16.

12. “Strip Cell” - “C-22”, is completely barren,

with the exception of a “hole” in the floor for

defecation. There is and was no bunk, mat-

tress, toilet, sink, sheet, blanket, or running

water. Pless was denuded except for his

pants. Ventilation in “C-22”, is almost non-

existent. The solid metal door leading to “C-

22” reads “Medical Isolation.” Based upon in-

formation and belief, Cell “C-22”, serves only

to “punish”.

13. During Pless’s (13) thirteen days of confine-

ment in Cell “C-22” Pless was:

Denied showering, washing, soap, toilet paper, or

any of the “basic necessities of hygiene”.

Denied any exercise period.

Restricted from attending religious services, and

since he is Muslim and a vegetarian, he has been

existing on a diet of dry cereal and water,

occassionally [sic] cheese. (A lot of the vegetables

are cooked in pork fat.)

Denied access to the Law Library and materials.

Denied phone calls, legal, or otherwise.

14. As of 9/12/81, Pless’s situation has changed

only by moving to Cell C-16, which does have

a bunk, mattress, toilet, sink, allotment of (2)

two hours daily exercise and (2) two showers

weekly.

15. At the time of incident, 7/30/81, Pless was

only a detainee, being held in lieu of bail.

16. Based upon iriformation and belief, plaintiffs

allege partial treatment of some inmates.

17. Based upon information and belief, Defen-

dants Frame and DeBruyn encouraged his

staff to “get tough” with “jailhouse lawyers”.

A-22

18. Based upon information and belief, the policy

and practice of Chester County Prison is to

forbid inmates from corresponding or talking

with other inmates, who are in “isolation”,

even when such communication is essential

to the conduct of a lawsuit.

19. Based upon correspondence, and information

and belief, Defendant Marks was aware, or

should have been aware, of the actions of the

Administration, and its officers of Chester

County Prison, in the proper exercise of his

official duties.

V. Relief

(State briefly exactly what you want the court to

do for you. Make no legal arguments. Cite no

cases or statutes. )

Plaintiffs respectfully pray, that this court enter

judgment granting plaintiffs: 1. appointment of

legal counsel, 2. a T.R.O., which requires defend-

ants to “and/or” from: A. Rescind policy directive

concerning “punitive isolation” (P.I.) inmates re-

striction from practicing their

A. Religious beliefs and allow adequate diets, con-

sistent with beliefs.

B. Allow “PI” inmates, access to the Law Library,

materials, and communication, with each other,

in relation to the conduct of this suit.

C. Rescind policy directive, concerning “P.I.” in-

mates restriction of phone calls and/or phone vis-

its, legal or otherwise.

D. Denying “P.I.” inmates right to receive or pur-

chase tobacco, legal materials, and the “basic ele-

ments of hygiene”, from the prison canteen and

allow them “outdoor” exercise like other “isola-

tion” inmates.

E. Prohibit use of “strip cell” - C-22.

—

A-23

Prohibit defendants, their agents, employee’s,

successors in interest, and all persons in active

concert, or participation with them, from

harrassing, threatening, punishing, or retaliating,

in any way against plaintiffs, because they filed

this action, or against any other inmate because

they submitted affidavits in this case on behalf of

plaintiffs, or from transferring plaintiffs to any

other institution, without their express consent,

during the pendacy [sic] of this action. This order

should also include, retaliation against sympa-

thetic C.O.1 officers, who submit affidavits, on

behalf of plaintiffs, or aid plaintiffs in their efforts

to secure their “rights”. Such officers are not to be

retailiated against, in any way, shape or form.

Such officers are not to be terminated or given

less desireable [sic] positions within or without

this institution, during pendacy [sic], or after dis-

position of this action.

Allow plaintiffs and other inmates to engage in

any oral or written communication, which is rea-

sonably related to the conduct of their suit, in-

cluding the preparation of affidavits on behalf of

plaintiffs and prepare legal papers, and to do any-

thing else, consistent with prison security, which

is reasonably connected with the conduct of this

suit. This order should include the general popu-

lation, as well as “isolation” inmates, and Plaintiff

Moore, after his discharge from this institution.

Adequately stock, and update lawbooks and mate-

rials in the Law Library, so that it conforms with

Supreme Court rulings.

Allow “due process”, at disciplinary hearings.

Impartial treatment of “all” inmates.

I) “All” inmates should be given the same con-

sideration at disciplinary hearings.

II) Appointments and approval of institutional

A-24

jobs, programs, work release, and _ parole,

should be based upon merit and rehabilitative

initiative, as adversed |sic] to the amount of

“information” given to the administration.

aw

Issue regulations that prohibit these tyjpes of re-

strictions, in the future, and make amendments

to prison policies, so that they conform. with Su-

preme Court rulings and opinions.

3. Such other and further relief, as tthis court

may deem just, proper and equitablle.

Signed this 12th day of September, 1981.

Respectfully submiitted,

Gregory D. Pless

Thomas J. Moore

(Signature of Plaintiff)

I declare under penalty of perjury that the foregoing

is true and correct.

Gregory D. Pless

9/12/81 Thomas J. Moore

(Date) (Signature of Plaintiff