Petition for Writ of Certiorari — Robinson v. Story

ps ioeons

) ottice Supreme Court, U.S,

rFiLED

84-977

me JUL 1'7 1984

FY

A

IN THE SUPREME cour? ~~**N9ER L. STEvas,

OF THE UNITED STATES— CLERK

October Term, 1984

WILLIAM B. ROBINSON, (former) Commissioner of

the Bureau of Correction; JAMES HOWARD,

( former) Superintendent of the State

Correctional Institution at Pittsburgh; ROBERT

MARONEY, Deputy Superintendent for Treatment

at the State Correctional Institution at

Pittsburgh; CHARLES ZIMMERMAN, (former) Deputy

Superintendent for Treatment at the State

Correctional Institution at Pittsburgh; JAMES

A. WIGTON, Classification and Treatment

Supervisor at the State Correctional

Institution at Pittsburgh, et al.,

Petitioners

Vv.

STANTON STORY, GEORGE BROOKS, ROBERT JOYNER,

LOUIS MCLEMORE, LARRY HOWARD,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

LeROY S. ZIMMERMAN

Attorney General

ALLEN C. WARSHAW

—

Senior Deputy Attorney General

Chief, Litigation Section

ANDREW S. GORDON

Deputy Attorney General

Counsel of Record

‘Office of Attorney General

15th Floor, Strawberry Sq. JOSE HERNANDEZ-CUEBAS

Harristown Building No. 1 Deputy Attorney General

Harrisburg, PA 17120

(717) 783-1471 GREGORY R. NEUHAUSER

Deputy Attorney General

II.

QUESTIONS PRESENTED FOR REVIEW

Whether a federal court, consistent

with the provisions of 42 U.S.C.

§ 1983 and principles of federalism,

may enjoin state officials to

conform their conduct to-~ state

regulations when the court did not

find a violation of the Constitution

or federal statute to support its

decision?

Whether the district court's

failure to conduct a review de novo

of the record compiled before the

magistrate, as required by federal

statute, requires reversal of the

district court's judgment,

particularly where objections to

the magistrate's report ‘tebwed

questions of sufficiency of the

evidence to support the

magistrate's conclusions?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .... i

TABLE OF AUTHORITIES ...eeeeeeeeses iv

OPINIONS BELOW ...ceecceccscscseces 1

STATEMENT OF JURISDICTION .....+e--. 1

CONSTITUTIONAL PROVISION INVOLVED . 2

STATUTES INVOLVED ..-ceeeeccccceses 2

STATEMENT OF THE CASE ..ceceeescecs

a }

REASONS FOR GRANTING THE WRIT .....

1. The Decision Below Conflicts

With Decisions of this Court

and Involves an Jmportant

Question of Federal Law

Regarding the Propriety of a

Federal Court Directing State

Officials to Conform their

Conduct to State Regulations

in the Absence of any Violation

Of Federal LAW ..cccesescecesecs 7

2. The Decision Below Conflicts with

the Decision of Other Courts of

Appeals as to the Requirements of

the United States Magistrates

Act eeeeoevoeveeevev ee eevee eeeeeeee2 0208 13

CONCLUSION eeeesveeeveeeeeeeeeeeee e808 aa

APPENDIX

Judgment Order, United States

Court of Appeals for the Third

Circuit, No. 83-5204, Dated

April 18, 1984 w.ccceeecscesccccesss la

Judgment Order, United States

Court of Appeals for the Third

Circuit, No. 83-5203, Dated

DT) CUE Seeesedsesecccccceocscss 38

Opinion and Order, United States

District Court for the Western

District of Pennsylvania, Dated

Me RU Sees bbecsceéeseesacess Sa

Report, Recommendation, Findings

of Fact and Proposed Conclusions

of Law of United States Magistrate,

Gated January 26, 1983 ...ccccccccee 158

-iii-

TABLE OF AUTHORITIES

CASES: PAGES

Bell v. Wolfish, 441 U.S.

520 (1979) eeeeoeeeeeeeeeeeeeeeeees 10

Davis v. Scherer, No. 83-490

(June 28, 1984) eeeeeeeeeeeees eee oF

Engle v. Isaac, No. 80-1430

April f 19 ) e@eeeee7e*7e5s853+oe*eeee#3#e#e#8e8e 10

sryaer v. Burke, 334 U.S.

1 4) eeeeeoeeeeeeeeeeeeeeeeee 10

Hernandez v. Estelie, 711 F.2d

619 (5th Gals 1983) @eeeeeeseeeeeecse 14,16

Orpiano v. Johnson, 687 F.2d 44

(4th Cir.1982) e@eeeevee eee eeeeeeeer 14

Pennhurst State School & Hospital

v. Halderman, No. 681-2101 (January

23, 1984) eeeeseeneeeneeeeeeeeeeeete ll

United States v. Lewis,

621 F.2d 1382 (5th Cir. 1980) ... 15

CONSTITUTION:

U.S. Const. amend. VIII ...ccccce 2

STATUTES:

28 om §§ 631 et se o *@*eeseeee#ee##e¢ 2,7

me WeeGs SH GROLTDIULS cécéccoccce 2,13,14

28 a $§ 1254(1) e*eeeeee32ee3e¢es 1 .

42 o.e.G. $§ 1983 e*eeeeeese<e8nsee70e6e8¢e &,i3

-iv-

OPINIONS BELOW

The Court of Appeals did: not

issue an opinion below. The Court's

judgment orders are reproduced in the

Appendix, pp. la-4a. The opinion of the

United States District Court for the

Western District of Pennsylvania is not

reported but appears in the Appendix,

STATEMENT OF JURISDICTION

The decision of the Court of

Appeals was issued on April 18, 1984, .

This petition for writ of certiorari has

been filed within ninety days of that

date. Jurisdiction of the Court is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the

Constitution of the United States

provides as follows:

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

U.S. Const. amend. VIII.

STATUTES INVOLVED

The United States Magistrates

Act, 28 U.S.C. §§ 631 et seqg., provides,

in pertinent part, as follows:

Notwithstanding any provision of law.

to the contrary --

x & &

a judge may also designate a

magistrate to conduct hearings,

including evidentiary hearings, and

to submit to a judge of the court

proposed findings of fact and

recommendations for the disposition,

by a judge of the court ... of

prisoner petitions challenging

conditions of confinement ....

Within ten days after being served

with a copy, any party may serve and

file written objections to such

proposed findings and recommendations

:

a

as provided by rules of court. A judge

shall make a de novo determination of

those portions of the report or

specified proposed findings or

recommendations to which objection is

made ... -»

28 U.S.C. § 636(b)(1).

The Civil Rights Act of 1871

provides as follows:

Every person who, under color of any

statute, ordinance, 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 injured in an action at

law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983.

STATEMENT OF THE CASE

This is a civil action for

damages brought pursuant to the Civil

Rights Act of 1871, 42 U.S.C. § 1983, by

inmates of a state prison. The inmates

brought suit challenging conditions of

confinement in one cellblock at the

State Correctional Institution at

Pittsburgh, Pennsylvania, as well as

certain incidents of treatment at the

prison which were personal to them.

Named ue detendante were various

employees | of the Commonwealth ° of

Pennsylvania's Bureau of Correction.

The United States District Court

for the Western District of Pennsylvania

assigned the matter to a United States

Magistrate who, after ten days of

hearings, issued a summary of testimony,

a report and recommendation, and

proposed findings of fact and

conclusions of law. The magistrate

|

recommended: 1) that judgment be entered

in favor of the corrections officials on

all issues .except the claims regarding

strip searches and exercise and _ that

nominal damages be awarded the inmates

on these claims; 2) that within 30 days

the corrections officials provide

"acceptable certification that the

lighting in certain cells meets

standards set by the state health

department; 3) that prison ventilation

conform with state environmental agency

requirements; 4) that food service to

the inmates conform with Bureau of

Correction standards; and 5) that

laundry service to the inmates’. be

similar to that provided other inmates

in the prison. (15a).

By memorandum opinion and order

dated March 3, 1983, the district court

adopted the recommendations of the

magistrate with certain modifications

and directed remedial action from the

prison officials in several respects.

(12a). In particular, the court

ordered: 1) that the practice of double

strip searches be abandoned; 2) that the

inmates‘ out-of-cell exercise time be

increased; 3) that the corrections

officials provide within 30 days

acceptable certification that the

lighting in certain cells meets

standards set by the state health

department; 4) that prison ventilation

conform with state environmental agency

standards; 5) that food service be’

brought into conformity with state

standards; 6) that laundry service to

the inmates be similar to that provided

other inmates in the prison; and 7) that

nominal damages be awarded to the

inmates. (13a).

Cross-appeals were taken by the

parties to the Court of Appeals for the

i NN Rac al AM Hie ae as

Third Circuit. The corrections

officials argued to the court that it

was error for the district court to have

ordered remedial relief from state

officials under the civil rights act

when the court did not find an

underlying violation of the

Constitution. In addition, they argued

that it was error for the district court

to have found the officials liable when

it failed to conduct a review de novo of

the record before the magistrate in

accordance with the United States

Magistrates Act, 28 U.S.C. §§ 631 et seq. ,

on April 18, 1984, the Court of

Appeals issued two jatguenk orders

affirming the decision of the district

court without opinion. |

REASONS FOR GRANTING THE WRIT

her The Decision Below Conflicts

with Decisions of this Court and

Involves an Important Question

of Federal Law Regarding the

Propriety of a Federal Court

Directing State Officials to Conform

their Conduct to State Regulations in

the Absence of any Violation of

Federal Law.

The Gistrict court, at

paragraphs 3-6 of its final order (14a),

directed remedial action from the state

officials in the areas of _ . prison

lighting, ventilation, food service and

laundry service. The court, in essence,

mandated that the officials conform

their management of the state prison to

regulations adopted by the state bureau

of corrections as well as the _ state

departments of health and environmental

resources. (14a). The magistrate,

however, whose findings were adopted by

the district court, found in his report

that the lighting, ventilation, food

service, or laundry service at the

prison did not amount to cruel and

unusual punishment and did not otherwise

violate the Constitution.*

The district court adopted these

findings in toto, but nevertheless,

proceeded to direct the prison officials —

to take remedial actions in the

day-to-day operation of a state

institution. In short, the district

court issued an injunction based solely

lin fact, the magistrate found

precisely to the contrary:

", . »« we have not been presented

with evidence demonstrating whether

or not the lighting in the cells is

adequate. . . ." (60a);

", . »« it is recommended that the

Court rely on their decisions that

the RHU has fulfilled all

requirements to provide adequate

ventilation in that unit." (6la);

". . . these facts [as to laundry] do

not rise to the level of a

constitutional violation... .”"

(64 a);

"C[tJhe decision of the administration

at SCIP to have:‘correctional officers

serve the meals in the RHU falls

within the ambit of discretion left

to state officials" (67a).

on state officials' failure to conform

their conduct: to state regulations

despite findings that there had been no

violation of federal law.

This interference with the daily

Operation of a state prison is precisely

what this Court has identified is the

danger in prisoner civil rights cases.

Bell _v. Wolfish, 441 U.S. 520 (1979).

This Court has directed that a federal

court's inquiry into matters of internal

prison management must be limited to the

issue whether a particular act violates

the Constitution or a federal statute. °

Id. at 562. Moreover, the Court long

has recognized that “a mere error of

state law" does not violate the

constitution per se. Engle v. Isaac, No.

80-1430 (April 5, 1982), slip op. at 12,

| n.21; Gryger v. Burke; 334 U.S. fae, 731

(1948). Absent a finding of a violation

of the Constitution or federal law, the

ee

district court simply lacked

jurisdiction to order the prison

officials to change their conduct to

conform to state regulations. Ibid.

Moreover, the decision below is

in direct conflict with the recent

decisions in Pennhurst State School and

Hospital ov. Halderman, No. 81-2101

(January 23, 1984) (Pennhurst II) and

‘Davis v. Scherer, No. 83-490 (June 28,

1984). In Pennhurst II, the Court

expressly held that the Eleventh

Amendment prohibits a federal court from

awarding injunctive relief against state

officials ordering them to conform their

conduct to state law. Slip op. at 34.

In unambiguous language, the Court has

declared that "a claim that state

officials violated state law in carrying

out their official responsibilities is a

claim ibbines the state that is

protected by the Eleventh Amendment."

re

Slip op. at 30. In Davis v. Scherer,

the Court specifically rejected the

contention that state officials forfeit

their qualified immunity from suit for a

violation of constitutional rights

simply because they failed to comply

with a_ state vemuseaiens Slip op at

9-12. The Court held that only a

showing of a_ violation of clearly

established rights is sufficient, and

where the regulation does not create a

federal cause of action, there cannot be

a denial of immunity for failure to

conform to the regulation. Slip op at 9.

Thus, without finding a

violation of federal law, the court

below was without authority to enter

relief for the inmates. -While as a

matter of policy generally it may be

desirable to promote uniform state-wide

standards in a state's institutions,

failure to conform to those standards

-12-.

does not state a claim under 42 U.S.C.

§1983. Pennhurst II, supra.

2. The Decision Below Conflicts

with the Decision of Other

Courts of Appeals as to the

Requirements of the United

States Magistrates Act.

Section 636(b)(1) of Title 28

provides ‘eae; where a pretrial matter

is referred by a district judge to a

magistrate for proposed findings and

recommendations, and the parties file

written objections to the magistrate's

recommendations, . the district judge

“shall make a de novo determination of

those portions of the report or

specified proposed findings or

recommendations to which objection is

made.” In this case, the district court

failed to conduct a de novo review of

the record made before the magistrate.

In fact, a transcript of the evidentiary

hearings from which the magistrate made

al3@

his inne’ wee not filed until after the

district court had issued its final

order. The Court of Appeals' approval

of this procedure conflicts directly

with decisions of the Courts of other

Circuits.

While Section 636(b)(1) of the

Magistrates Act does not require that

the district court hold a new hearing,

it does require that “an appellate court

must be satisfied that a district court

judge has exercised his nondelegable

authority by considering the actual

testimony, and not merely reviewing the

magistrate's report and recommendations. "

Hernandez v. Estelle, 711 F.2d 619, 620

(Sth Cir. 1983). Failure to review the

evidence presented to a magistrate and

failure to have a transcript filed with

the district court has been held to be

reversible error. Orpiano Vv. Johnson,

687 F.2d 44, 48 (4th Cir. 1982). See

aldo

also United States v. Lewis, 621 F.2d

1382 (5th Cir. 1980).

In this case, the evidentiary

hearing before the magistrate lasted ten

days and produced 1294 pages of

testimony from fifteen witnesses. The

corrections officials filed objections

to the magistrate's approval of the

sufficiency of the evidence adduced with

respect to the adequacy of lighting,

ventilation, food ‘service, laundry

service and searches. The transcript of

the evidentiary hearing, however, was

not filed until after the district court ©

issued its final order. Thus, despite

the court's statement that it had

conducted a de novo review, it is clear

that it could not have done so. Given

the nature of the officials’ objections,

it was crucial for the court to have

reviewed the: actual testimony. Absent

that review, the court could not have

ai Se

given appropriate consideration to those

objections.

The Fifth Circuit has held that

a district court's obligation under the

Magistrates Act to arrive at “its own,

independent conclusion" about those

portions of the magistrate’s report to

which objection is made requires review

of the “actual testimony" presented.

Hernandez, supra, 71l F.2d at 620.

Because the decision below conflicts

with decisions of other . Circuits,

certiorari should be granted.

alia

or

PA A ae

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

decision of the Court of Appeals for the

Third Circuit and upon review’ the

judgment should be reversed.

Respectfully submitted,

LeROY S. ZIMMERMAN

Attorney General

ALLEN C. WARSHAW

Senior Deputy Attorney General

Chief, Litigation Section

ANDREW S. GORDON

Deputy Attorney General

Counsel of Record

JOSE HERNANDEZ-CUEBAS

Deputy Attorney General

GREGORY R. NEUHAUSER

Deputy Attorney General

Office of Attorney General

15th Floor Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 83-5204

STANTON STORY, GEORGE BROOKS, ROBERT JOYNER, LOUIS McLEMORE,

LARRY hecceneeats Individually, and on behalf of all others

similarly situated ;

Ve

WILLIAM B. ROBINSON, Commissioner of the Bureau of Corrections;

JAMES HOWARD, Superintendent of the State Correctional

Institution at Pittsburgh, ROBERT MARONEY, Deputy Superintendent

of Treatment at the State Correctional Institution. at

Pittsburgh; CHARLES ZIMMERMAN, Deputy Superintendent of

Treatment at the State Correctional Institution at Pittsburgh;

JAMES A. WIGTON, Classification and Treatment Supervisor of

the State Correctional Institution at Pittsburgh, All

Individually and in their official capacities

L. WEYAMNDT, C.J. KOZAKIEWICZ, E.J. KRALL, M. FERRIS,

MR. MALLINGER, OFFICER SALVY, OFFICER BATISMA,

SERGEANT ROBESON, CAPTAIN TWYMAN

William B. Robinson, et al.,

Appellants

Appeal From the United States District Court

For the Western District of Pennsylvania - Pittsburgh

D.C. Docket No.77-01204

Before Honorable Gerald J. Weber

‘ Submitted Under Third.Circuit Rule 12(6) March 14, 1984

Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judces

la

i OT ROR IE Ca ste Bille Pcie “cape

ee a as

JUDGMENT ORDER

After consideration of ail contentions raised b:

appellants, it is

ADJUDGED and ORDERED that the judgment of the distric:

court be and is hereby affirmed.

Cost taxed against appellants.

By the Court,

Circuit Judge

Attest:

Clerk

Dated: April 18, 1984 -

CERTIFIED AS A TRUE COPY AND ISSUED IN LIEU OF A

FORMAL MANDATE ON May 10, 1964.

Test: M. Elizabeth Ferguson

Chief Deputy Clerk, United States Court of

Appeals for the Third Circuit. . ° cOoOPY

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 83-5203

STANTON STORY, GEORGE BROOKS, ROBERT JOYNER, LOUIS McLEMORE,

LARRY HOWARD, Individually, and on behalf of all others

; similarly situated

Ve

WILLIAM B. ROBINSON, Commissioner of the Bureau of Corrections;

JAMES HOWARD, Superintenden= of the State Correctional

Institution at Pittsburgh, ROBERT MARONEY, Deputy Superintendent

of Treatment at the State Correctional Institution at

Pittsburgh; CHARLES ZIMMERMAN, Deputy Superintendent of

Treatment at the State Correctional Institution at Pittsburgh;

JAMES A. WIGTOMN, Claseification and Treatment Supervisor of

the State Correctional Institution at Pittsburgh, All

Individually and in their official capacities

L. WEYANDT, C.J. KOZAKIEWICZ, E.J. KRALL, M. FERRIS,

MR. MALLINGER, OFFICER SALVY, OFFICER BATISMA,

SERGEANT ROBESON, CAPTAIN TWYMAN

George Rahsaan Brooks,

Appellants

Appeal From the United States District Court

Por the Western District of Pennsylvania - Pittsburgh

D.C. Docket No.77-01204

Before Honorable Gerald J. Weber

Submitted Under Third Circuit Rule 12(6) March 14, 1984

Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judges

3a

JUDGMENT ORDER

After consideration of all contentions raised by appellan

and cross-appellants, including George Rahsaan Brooks, to wit:

1. that his transfer from Allegheny

County jail to State Correctional Institution —

violated his due process rights;

2 that his rights were violated by the

prison's policies on visitation, strip searches

restraints and availability of notary service,

It is ADJUDGED and ORDERED that the judgment of the distric:

court. be and is hereby affirmed.

It is FURTHER ORDERED that appellee's motion to strike a:

portions of briefs addressing Claims of non-appealing partie:

is granted. 7

It is FURTHER ORDERED and ADJUDGED that the judgment of the

district court insofar as it relates to cross-appellahts

challenge to the remedial relief ordered be and hereby 1:

affirmed. ag .

Costs taxed against appellant.

By the Court,

Circuit Judge

Attest: f

. ? , Clerk

Dated: i i :

Certified as a true copy and issued in lieu of a forma:

mandate on May 10, 1984.

Test:

Chief Deputy Clerk, United States Court of Appeals for the

Third Circuit.

COPY

aa

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STANTON STORY, GEORGE BROOKS,

ROBERT JOYNER, LOUIS McLEMORE

and LARRY HOWARD, individually,

and on behalf of all others

similarly situated,

Plaintiffs

haere

Civil Action No. 77-1204

WILLIAM B. ROBINSON,

Commissioner of Bureau of

Corrections, et al.,

Defendants

MEMORANDUM OPINION AND ORDER

WEBER, J.

The plaintiffs in _the

above-captioned case brought a civil

rights action challenging the general

conditions in the Restrictive Housing

Unit of the State Correctional

Institution at Pittsburgh ("R.H.U."), as

well as making certain allegations

concerning the manner in which they were

personally treated at the penitentiary.

5a

After extensive pretrial proceedings,

the matter was assigned to a United

States Magistrate for evidentiary

hearing and the submission of proposed

findings of fact and conclusions of

law. Accordingly, the matter came on

for hearing before the Magistrate over a

ten day period between June, 1981 and

April, 1982. Following those hearings

the Magistrate submitted a thorough

detailed summary of the testimony

presented, and the parties were invited

to submit any additions, deletions or

corrections to that summary. Such >

matters were filed by both sides to the

litigation, and ultimately the Report

and Recommendation and proposed findings

of the Magistrate was filed and the

parties were granted time in which to

file any objections thereto. Objections

‘were subsequently filed on behalf of all

parties, and the matter is now in a

6a

posture for final disposition.

It is provided in 28 U.S.C. $636

(b)(1) that where, as in the instant

case, a matter is referred to a

magistrate for proposed findings and

recommendations for disposition, the

parties shall have ten days to file

written objections to such proposed

findings and recommendations.

Thereafter, a District Judge must make a

de novo determination of those portions

to which objections is made.

In United States v. Raddatz, 447

U.S. 667, 674 (1980) the Court

recognized that “the statute calls for a

de novo determination, not a de novo

hearing." In this regard, the House

Report, H.R. Rep. No.94-1609 at page 3

noted:

"The use of the words ‘de novo

determination’ is not intended to

require the judge to actually conduct a

new hearing on contested issues.

Normally, the judge, on application,

Ja

will consider the record which has been

developed before the magistrate and make

his own determination on the basis of

that record, without being bound to

adopt the findings and conclusions of

the magistrate. In some specific

instances, however, it may be necessary

for the judge to modify or reject the

findings of the magistrate, to take

additional evidence, recall witnesses,

of recommit the matter to the magistrate

for further proceedings.

“With this in mind, we have

examined the Magistrate's extensive

summary of the testimony presented at

the hearing as that summary was amended

by the parties, and compared this record

with the objections filed by the

parties. Based on this examination we

find the summary of testimony, as-

amended, provides a thorough synopsis of

the testimony presented at the

hearings.!

| The bulk of the objections filed

by the parties appear to be legal rather

lwe note that certain limited portions

of the record of the hearings have been

transcribed.

8a

than factual in nature. However, as to

those matters where factual objections

are raised, we find that the detailed

summary of testimony, “as amended,

provides an adequate basis for

disposition of the matters raised.

The individual plaintiff's have

filed objections to the findings of the

Magistrate concerning their individual

claims. We have thoroughly examined

those objections and find, as a matter

of law, that they are without merit.

This conclusion is further bolstered by

the decision of the Supreme Court in the

case of Hewitt v.Helms, U.S. ’

(No. 81-€38, filed February 22, 1983),

51 L.W. 4124, which was filed after the

Magistrate filed his report and proposed

findings.

The plaintiffs have also

challenged the findings of the

Magistrate concerning the conditions in

9a

the R.H.U. We have examined the record

concerning the conditions in the R.H.U.

and find them to be as set forth in the

Magistrate's findings and with very

limited exceptions, these conditions do

not violate constitutional precepts.

The defendants have also

challenged the findings of the

Magistrate. We have examined those

findings in view of the record and the

applicable law and merely clarify that

as to the issue of exercise, the finding

was that limiting exercise to fifteen to

twenty minutes constitutes cruel and

unusual punishment. While we do not

direct that any minimal exercise period

be permitted, we would direct that a

conscious effort be made to _ enable

inmates to receive exercise privileges

in keeping with Pennsylvania regulations

requiring that to the extent possible

inmates receive two hours of exercise a

10a

day. In all other respects the

defendants' objections are without merit.

An appropriate order will be

entered.

lla

ORDER

AND NOW, this 3rd day of March,

1983, after the plaintiffs in the

above-captioned case filed aie civil

rights complaint, and after an

evidentiary hearing was held before a

United States Magistrate, and after the

Magistrate filed a detailed summary of

the testimony, and the parties submitted

additions thereto, and after a Report

and Recommendation and Proposed Findings

of Fact and Proposed Conclusions of Law

was filed by the Magistrate, and ~-the

parties were granted ten days in which.

to file objections thereto, and in

consideration of the objections filed by

the plaintiffs and defendants, and upon

de novo review of those matters to which

objection was made, and upon independent

review of the pleadings and the.

Magistrate's Report and Recommendation

12a

and Proposed Findings of Fact’ and

Conclusions of Law,

IT IS ORDERED that the Report

and Recommendation and Proposed Findings

of Fact and Proposed Conclusions of Law

of the United States Magistrate, as

modified by the foregoing Memorandum

Opinion, be adopted as the opinion of

this Court, and IT IS FURTHER ORDERED

that:

l. The practice of double strip

searehinn R.H.U. inmates both before

and after visitations be abandoned, and

that strip searches be limited to one

search before a visit and one search

after a visit;

2. Inmates housed in the R.H.U. be

permitted more than fifteen to twenty

minutes of exercise a day, and that to

the extent possible they be permitted to

enjoy that amount of exercise which

is in conformity with Pennsylvania

13a

regulations;

3. Within thirty (30) days, the

defendants provide acceptable

certification that the lighting the

R.H.U. cells meets the standards

established by the State Health

Department;

4. The ventilation in the R.H.U. be

brought in conformity with Department of

Environmental Resources requirements,

and certified as meeting those standards;

5. The food service in the R.H.U. be

brought into conformity with Bureau of

Corrections standards;

6. In mates in the R.H.U. be

provided with laundry services similar

to those enjoyed by inmates in the

general prison population, and

7. Judgment be and is hereby entered

in favor of the plaintiffs and against

the defendants in the total sum of $1.00. ©

United States District Judge

14a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STANTON STORY, GEORGE BROOKS,

ROBERT JOYNER, LOUIS McLEMORE

and LARRY HOWARD, individually,

and on behalf of all others

similarly situated,

Plaintiffs

Vv.

Civil Action No. 77-1204

WILLIAM B. ROBINSON,

Commissioner of Bureau of

Corrections, et al.,

Defendants

MAGISTRATE'S REPORT AND RECOMMENDATION

P OSED FINDINGS OF F AND

PROPOSED CONCLUSIONS OF LAW

RECOMMENDATION

It is respectfully snunaiaitinn

that judgment be entered against the

plaintiffs and in favor of the

defendants on all issues presented

except the issues of strip searches and

exercise, and that on these two issues

judgment be entered against the

defendants and in favor of the

plaintiffs, and that the plaintiffs be

15a

awarded nominal damages in the amount of

$1.00;

It is further recommended that

within thirty (30) days the defendants

provide acceptable certification that

the light in the RHU cells meets the

| standards established by - the State

Health Department;

It ic further recommended that

ventilation in the RHU conform with

Department of Environmental Resources

requirements;

It is further recommended that

food service in the RHU conform with

Bureau of Correction standards,

And it is further recommended

that laundry service, similar to that

provided to other inmates, be provided

to inmates in the RHU.

16a

REPORT

Stanton Story, George Brooks,

Larry Howard, Louis McLemore and Robert

Joyner have presented a civii rights

complaint which they have been permitted

to prosecute without the prepayment of

costs. After the completion of pretrial

procedures, the matter was assigned to

the undersigned United States Magistrate

for evidentiary hearing in conformity

with the provisions of 28 U.S.C. §636(b)

(1)(B). Accordingly, on June 17, June

23, September 10, September 16, and

September 21, 1981 and March 22, March .

23, March 24, March 25 and April 27,

1982 the matter came on for hearing.

Following those hearings a summary of

testimony was prepared and submitted to

the parties with an order inviting

suggested additions or deletions within

ten days. That ten-day period has

17a

elapsed and the matter is in a posture

for final disposition.

At the hearings, the plaintiffs

testified as to their individual claims

and as to the general conditions of the

Restricted Housing Unit at the State

Correctional Institution at Pittsburgh

("SCIP").

According to the plaintiffs,

these facts state a cause of action

under the provisions of 42 U.S.C $1983

and they invoke the jurisdiction of this

Court pursuant to Section 1343 of Title

28, United States Code. Named as

defendants in this action are William B.

Robinson, the Commissioner of the Bureau

of Corrections; James Howard, the former

Superintendent of the State Correctional

Institution at Pittsburgh; Robert

Maroney and James Wigton, Deputy

Superintendents of the State

Correctional Institution at Pittsburgh;

18a

Charles Zimmerman, a former Deputy

Superintendent of the State Correctional

Institution at Pittsburgh; Charles

Kozakiewicz, a former correctional

officer of the State $ Correctional

Institution at Pittsburgh; Steven

Mallinger, the librarian of the State

Correctional Institution at Pittsburgh;

Michael Ferris, a counselor at the State

Correctional Institution at Pittsburgh

and Correctional Officers Krall,

Batisma, Robeson and Twyman of the State

Correctional Institution at Pittsburgh.

I. PLAINTIFF HOWARD

At the above mentioned hearings,

Larry Howard testified that his consti-

tutional rights were violated by his

being found guilty of possession of

implements of escape.

On September 5, 1977, plaintiff

Howard was quentitonet by defendant

Kozakiewicz about some grey powder,

19a

screws and pamphlets found in an

unidentified locker in the electric shop

where Howard worked. After questioning

plaintiff Howard was placed on "J" Range

and later given a copy of the charges

against him. (P-Ex 37) On September 7,

1977 a misconduct hearing was

conducted. Major Weyandt, Officer

Bailey and Officer Batisma comprised the

misconduct hearing committee. The

infraction was read to plaintiff Howard

and he was shown the grey powder,

screws, pamphlets, a pipe cap and an

envelope addressed to him that had been

found in a locker in the electric shop.

Plaintiff Howard was not permitted to

question the reporting officer.

Although he was offered an opportunity

to submit his version of the incident he

refused to do so because he was also

under police investigation for the same

incident. Plaintiff Howard told the

20a

hearing committee that he would not

testify to both prison and police

officials. He was permitted to call

witnesses and did so. An inmate Taylor

attended the hearing on plaintiff

Howard's behalf and questioned = the

propriety of charging plaintiff Howard

with possession of the powder, etc.

without more proof than an envelope of

his connecting him with the locker in

which the items were found. Plaintiff

Howard was found guilty and sentenced to

180 days in the Restricted Housing Unit

("RHU").

During his incarceration in the

RHU, Plaintiff Howard received six

monthly reviews by the Program Review

Committee (PRC). (P-Ex 8). Plaintiff

Howard told the PRC that he wanted a new

hearing on his misconduct and that,

after the state police investigation was

completed, he would submit his written

2la

version of the incident to the hearing

committee. (D Ex-A). On February 6,

1978 a misconduct hearing was

conducted. Because the misconduct

hearing committee did not know if the

police investigation was completed,

plaintiff Howard refused to submit his

version of the incident. This procedure

was repeated on February 22, 1978 when

plaintiff Howard again refused to submit

his version because the police

investigation was not completed.

At the evidentiary hearings on

this civil rights suit plaintiff Howard

testified that he did not try to make

gunpowder; that the grey substance

produced at the misconduct hearing was

never proven to be gun powder; that the

grey substance was never found to be

under his control and that no informant

testimony was presented at the hearing.

22a

Deputy Wigton testified that it

is common practice at SCIP to write up a

misconduct on an inmate who is also

subject to criminal prosecution for the

same incident.

Defendant Kozakiewicz testified

that he was the reporting officer on the

misconduct. As result of a routine

search of the electric shop, graphite, a

knife, pipe caps and a book on guerilla

warfare were found in a locker

identified as being used by plaintiff

Howard. Mr. Kozakiewicz wrote up the

misconduct. “He appeared at the

misconduct hearing on September 8, 1977,

as a witness, not as a member of the

committee itself. Mr. Kozakiewicz did

not remember if plaintiff Howard had

been questioned by prison officials

while under police investigation other

than being offered by the opportunity to

submit his written version of the

23a

incident at the misconduct hearing.

Plaintiff Howard raises two

questions--whether due process was

denied him at the misconduct hearings

and whether he was subject to double

jeopardy by being questioned by prison

officials while under police

investigation.

In Wolff v. McDonnell, 418 U.S.

539 (1974), the Court held that an

inmate must be given advanced written

notice of the charges against him; that

he has the right to call witnesses and

present evidence in his behalf and that

he be given a written statement by the

misconduct hearing committee of the

evidence relied upon. |

Plaintiff Howard testified at

the evidentiary hearings that he

received a copy of the charges against

him; that an inmate Taylor was present

at the misconduct hearing as a witness

24a

in his behalf; that he was offered an

opportunity to submit a written

statement of his version of the incident

and that he received a written statement

of the decision of the hearing committee.

Plaintiff Howard was not

permitted to confront the correctional

officers who wrote up the misconduct

against him. However, the Court in

Wolff Ve McConnell, supra at 568,

addressed this issue at length,

expressing concern that: ©

",.ein the current environment,

where prison disruptiqn remains a

serious concern to administrators, we

cannot ignore the desire and effort of:

many States,..., and the Federal

Government to avoid situations that may

trigger deep emotions and that may

scuttle the disciplinary process as a

rehabilitation vehicle."

The Court went on to hold that due

process does not require that an inmate

be permitted to .confront a reporting

officer or inmate and that the decision

25a

to permit such confrontation is left to

the discretion of the administrators of

the correctional institution.

Plaintiff Howard also argued

that he would not testify or write his

own version of the incident because that

would place him in “double jeopardy" in

that he was also ander police

investigation. It has been held in

Kerns v. Parratt, 672 F.2d 690 (8th Cir.

1982), that charges brought against an

inmate by the prison administration

while criminal charges are pending do

not place the inmate in “double

jeopardy." ‘Thus, the offer of an

opportunity for plaintiff Howard to

submit his written version of the

incident does not constitute a violation

of his rights under the Constitution or

the laws of the United States.

26a

II. PLAINTIFF STORY

Plaintiff Stanton Story contends

that his constitutional rights were

violated by the excessive use of force

applied by prison officials in

conducting a search of his person and by

the misconduct hearing committee's

decision finding him guilty of

possession of contraband.

On September 15, 1977, plaintiff

Story was receiving a visit from family

members. He excused himself to go to

the men's room and was met on the way by

Officer Salvay. Plaintiff Story

testified that Officer Salvay grabbed

him and dragged him to the Major's

Office. He testified that at’ the

Major's Office he was jumped by a number

of correctional officers who were trying

to pry his mouth open. Plaintiff Story

asked what was going on and was accused

of having contraband in his mouth. He

27a

denied having anything in his mouth and

refused to open it. He was taken to the

Strip and Search Room and back again to

the Major's Office where defendants

Maroney, Kozakiewicz and Weyandt were

present with other correctional

officers. | Plaintiff Story testified

that while he was nantoettes

correctional officers tried to force his

mouth open with a tongue depresser and

metal objects; that defendant

Kozakiewicz and Officer Batisma were

hitting him and choking him in an effort

to open his mouth and that nothing was

recovered from his mouth in the search. 7

On September 15, 1977, plain-

tiff Story received misconducts’~ for

possession of contraband (marijuana) and

disobeying a direct order. (D-Ex B,C).

Major Weyandt, Officer Bailey and

Counselor Good conducted the misconduct

hearing on September 19, 1977 and

28a

defendant Kozakiewicz and Sgt. Robertson

were witnesses at. that hearing.

Plaintiff Story was permitted to call

witnesses but did not request any. He

did submit his written version of the

incident. Plaintiff Story was’ found

guilty of the charges and was sentenced

to 180 days in the RHU.

At the evidentiary hearing on

this civil rights suit, Major Weyandt

testified that he was present when Story

was searched in September 1977, but that

he did not participate in the search.

Major Weyandt was also the chairman of

the hearing committee that sertened the

incident. Major Weyandt testified that

he believed he was impartial even though

he had witnessed the incident. He

stated that in 1977 SCIP had a policy

permitting officers who had witnessed

! nientihasinns to participate in —_

misconduct hearings on those incidents.

29a

Defendant Kozakiewicz testified

that force was used on plaintiff Story

because he resisted a search after being

given a direct order to open his mouth.

Plaintiff Story was kicking, butting

with his head and flailing his arms

while correctional . officers were

attempting to open his mouth. At that

time, force was used. Defendant

Kozakiewicz stated that he believed that

the amount. of force used against

plaintiff Story did not equal the force

of a “beating.”

Deputy Maroney testified that he

was present when plaintiff Story was

searched and that something wrapped in

tape was recovered from his mouth.

Plaintiff Story raises two

questions--Whether the use of force by

prison officials was a violation of his

constitutional rights and whether the

presence of Major Weyandt on the bearing

30a

committee after he had witnessed the

incident underlying the misconduct

constituted a violation of his rights.

In Johnson v. Glick, 481 F.2d

1028, 1033 (2a Cir. 1973), cert. denied

414 U.S. 1033 (1973), the Court

enunciated a test for determining

whether an inmate's constitutional

rights had been violated by the use of

force. In the opinion, the Court stated:

"eer a court must look to such

factors as the need for the application

of force, the relationship betv3en the

need and the amount of force used, the

extent of injury inflicted, end whether

force was applied in a good faith effort

to maintain or restore discipline or

maliciously and sadistically for’ the -

very purpose of causing harm."

This test has been followed in other

circuits as well. See: Lock Vv.

Jenkins, 641 F.2d 488 (7th Cir. 1981);

Putnam v. Gerloff, 639 F.2d 415 (8th

Cir. 1981); King v. Blackenship, 636

F.2d 70 (4th Cir. 1980); Furtado v.

3la

—

Bishop, 604 F.2d 80 (iet Cis. ~-1i879),

cert. denied 444 U.S. 1035 (1979);

Meredith v. State of Arizona, 523 F.24

481 (9th Cir. 1975).

In the instant case, the

testimony reveals that plaintiff Story

was resisting ‘the efforts of

correctional officers to extract

centraband from his mouth; that he was

flailing his arms and legs and butting

with his head. It does not appear from

the testimony that the efforts of the

defendants and others in attempting to

extract the contraband were made for

malicious or sadistic purposes. Thus,

their actions do not constitute an

unconstitutional use of force against

plaintiff Story.

The second question presented by

plaintiff Story is whether his

constitutional rights were violated by

the fact that Major Weyandt, who had

32a

witnessed the events of September 15,

1977, was also the chairman of the

hearing committee on the misconduct.

In Meyers v. Alldredge, 492 F.2d

296, 306 (3d Cir. 1974), the Court held:

",..the requirement of an impartial

Cinstitutional] triunal prohibits only

those officials who have ae direct

personal or otherwise substantial

involvement, such as major participation

in a judgmental or decision-making role,

in the circumstances underlying’ the

charge from sitting on the disciplinary

body. This would normally include only

those such as the charging and the

investigating staff officers who were

Girectly involved in the incident. It

would not include those who are only

tangentially affected by the alleged

misconduct, such as prison officials who

may have some administrative connection

with such misconduct prior to hearings."

See also: Rhodes v. Robinson, 612 F.2d

766, 773 (3d Cir. 1979).

In the present case, Major

Weyandt did not participate in the

search of plaintiff Story. Although he

was present at the search, his

involvement did not rise to the level of

a "direct personal or otherwise

33a

substantial involvement" in the events

of September 15, 1977. In addition,

Major Weyandt testified at the

evidentiary hearing that he believed he

was impartial even though he had

witnessed the incident. Therefore,

Major Weyandt's. participation as

chairman of the misconduct hearing on

plaintiff Story was not improper and did

not violate the mandate in Wolff v.

McDonnell, supra.

III. PLAINTIFF JOYNER ;

At the above mentioned hearings,

Plaintiff Robert Joyner testified that

his constitutional rights were violated

by his incarceration in the RHU for ten

months after the expiration of his

disciplinary sentence.

On August 6, 1977, Joyner was

placed in the RHU to serve 180 days in

disciplinary custody “close" for

34a

attempted escape, possession of

implements of escape and attempted

assault on Defendant Kozakiewicz.

Following the completion of the sentence

he remained in the RHU for an additional

ten months without the benefit of any

extra privileges.

After plaintiff Joyner completed

his sentence he was maintained in the

RHU in administrative custody "close"

which differs from disciplinary custody

"close" in that there is no definite

term or sentence to be served and there

are more privileges afforded the inmate,

including the possible receipt of prison

wages. Plaintiff Joyner did not receive

a separate hearing when his status

changed.

The PRC ‘ reviewed plaintiff

Joyner's case monthly. (P-Ex 15, 26).

In the reviews the PRC’ stated that

plaintiff Joyner was considered an

35a

—

escape risk and that he also had to be

separated from the staff. In addition,

the PRC reviews show that the PRC was

seeking to have him transferred out of

SCIP to the State Correctional

Institution at Graterford.

At the evidentiary hearing in

this civil rights suit, defendant

Maroney testified that plaintiff Joyner

received only one misconduct while in

the RHU. (P-Ex 27). The misconduct was

for possession of a “fishing line” which

was used to pass books or other items

from cell to cell in the RHU. As result

of his being found guilty of the |

misconduct, plaintiff Joyner was denied

yard privileges for ten days.

Deputy Wigton cestified at the

evidentiary hearing that it was possible

in 1979 that plaintiff Joyner was not

informed of his change in status from

disciplinary custody to administrative

36a

custody and that he may not have

received the greater privileges that

accrue to inmates in administrative

custody.

Defendant Kozakiewicz testified

at the evidentiary hearing that the

original misconduct for which plaintiff

Joyner was placed in the RHU centered

around plaintiff Joyner's attempt, along

with some other inmates, to throw him

off the top tier of a general population

cell block. Defendant Kozakiewicz

testified that he was not asked to give

input to the PRC's decisions to maintain

plaintiff Joyner in administrative

custody. ~ He stated that he had not

received any threats from plaintiff

Joyner while he was housed in the RHU

and that when plaintiff Joyner was

ultimately released from the RHU back

into the general population nothing

happened between then.

37a

In Helms v. Hewitt, 655 F.2d 487

(3d: Cir. 1981), the Court addressed the

question of whether an inmate is

entitled to a hearing, comporting with

the standards enunciated in Wolff v.

McDonnell, supra, when he is placed in

administrative segregation. The Court.

found that an inmate confined in

administrative custody must be afforded

a hearing either before confinement or

within a reasonable period after

confinement. This requirement is based

on a liberty interest created through

Title 37, Pa. Code Sections

95.101-95.108 wherein the procedure for

dealing with violations of prison rules

and for maintaining control and security

within the institution is established.

The Court held in Helms that because the

Commonwealth of Pennsylvania created

this Liberty interest, the requirements

enunciated in Wolff must be met before

38a

an inmate may be placed in

administrative custody.

Although the Court did not

address the factual situation in which

‘plaintife Joyner had found himself, it

can be reasoned that an inmate in

disciplinary custody has a reasonable

expectation that he will be returned to

the general population upon the

completion of his ijisciplinary sentence

and that plaintiff Joyner's shift from

disciplinary custody to administrative

custody without the benefit of a hearing

was denial of due process. |

While it is true that in Helms

v. Hewitt, supra, the Court held that

inmates are entitled to a hearing before

being placed in administrative custody,

it must be remembered that Helms was

decided in June 1981, while the change

in status of plaintiff Joyner took place

in 1977. The decision in Helms should

39a

not be given retrospective application.

In Linkletter .v. Walker, 381 U.S. 618,

629 (1965), the Supreme Court weighed

the question of prospective or retro-

spective application of its decisions by

“...- Looking to the prior history of

the rule in question, its purpose and

effect, and whether retrospective

operation will further or retard its

operation."

Looking first to the prior

history of the rule in question, the

decision in Helms is an expansion of the

Supreme Court decision in Wolff -v.

McDonnell, supra, to include those

inmates placed in administrative custody

among the inmates who must be given a

hearing before being removed from the

general prison population. At the time

of plaintiff Joyner's change of status,

those inmates placed in administrative

custody were not required to be given a

hearing that comported with the stan-

dards enunciated in Wolff. Plaintiff

40a

Joyner did receive monthly PRC reviews

and was informed that he was. being

maintained in the RHU as a security risk

while the PRC attempted to effectuate a

transfer for him to another correctional

facility.

_ ‘The purpose of the ruling in

Wolff and its expansion in Helms is to

protect the individual against arbitrary

institutional action. Wolff Ve

McDonnell, supra at 558; Helms Vv.

Hewitt, supra at p. 502. The retros-

pective application of Helms would

neither further nor hinder its

operation. However, it would impose an

unfair hardship upon the prison adminis-

trators who complied with the due

process requirements as they existed at

the time of the change in plaintiff

Joyner's status.

In Wolff v. McDonnell, supra, at

p. 574, the Supreme Court refused to

4la

grant retrospective application to their

ruling stating that:

"“...-great weight should be given to

the significant impact a retroactivity

ruling would have on the administra-

tion of all prisons in the country, and

the reliance prison officials placed, in

good faith, on prior law not requiring

such procedures."

Applying this standard, it would appear

that retrospective application should be

denied. A finding otherwise would

necessitate the prison system to review

its files for those inmates whose status

was changed from disciplinary custody to

administrative custody without the

benefit of a hearing. It would then

require a determination of whether or

not those changes in custody would be

upheld.

In the instant case, the

requirements existing at the time of the

plaintiff's change of status were met.

Thus, although his change of status did

not meet the constitutional requirements

42a

enunciated four years later in Helms,

those requirements did not apply at the

time Joyner's status was changed.

IV. PLAINTIFF McLEMORE

At the above mentioned

evidentiary hearings, plaintiff Louis

McLemore testified that his

constitutional rights | were violated

because he was unable to confer with

witnesses and establish a defense before

he received the misconduct hearing which

ultimately led to his incarceration in

the RHU.

On August 25, 1977 at 11:30 a.m.

plaintiff McLemore received a misconduct

charging him with possession of a broom

handle. At that time, he was placed on

"J" Range until August 26, 1977 at 1:00

p.m. when a disciplinary hearing was

held on the misconduct report. (D-Ex E).

Deputy Wigton testified that a

43a

SCIP, misconduct hearings may not be

conducted until at Least twenty-four

(24) Hours after an inmate has received

a copy of his misconduct report and no

later than six (6) days after receipt of

the misconduct. However, Deputy

defendant Wigton testified that it would

not be a violation of Pennsylvania

Directive 801 to hold a= misconduct

hearing within twenty-four hours of

receipt of the misconduct report.

As previously stated, the Court

in Wolff held that certain procedural

requirements must be met in order for an

inmate to be provided due process in a

disciplinary hearing. Included among

them is the requirement that an inmate

receive advanced written notice of the

charges against him at least twenty-four

hours before his disciplinary hearing is

conducted. The purpose of ue

requirement is to provide the inmate an

44a

opportunity to prepare a defense to the

charges.

In the present case, plaintiff

McLemore was provided twenty-five and

one-half hours to prepare his case,

Plaintiff McLemore argues that during

this time he was held in segregation in

‘“eveatientive’ status and that he was

unable to contact any witnesses in his

behalf. Plaintiff McLemore still was

permitted to request inmate

representation and inmate witnesses to

be present at his misconduct hearing.

The fact that plaintiff McLemore was

unable to physically contact any

witnesses in his behalf does not

constitute a violation of his right to

due process.

V. PLAINTIFF BROOKS

At the above mentioned

evidentiary hearing, plaintiff George R.

45a

Brooks testified that his constitutional

rights were violated by virtue of his

transfer from the Allegheny County Jail

to SCIP and his subsequent incarceration

in the RHU at SCIP.

The testimony elicited at the

evidentiary hearings reveals that in

September 1977 plaintifé Brooks was

involved in an incident at the Allegheny

County Jail in which he threatened jail

staff with a handmade knife. (D Ex-I).

This incident marked plaintiff Brooks as

a security risk and as_ such he wes

transferred to SCIP where security is

more strenuous. Upon arrival at SCIP

Lt. James Higgins, a correctional

officer at SCIP, wrote up plaintiff

Brooks for disrupting prison routine and

threatening on officer at the Allegheny

County Jail. (P Ex-80). As_ ranking

officer at the time, Lt. Higgins also

approved the misconduct.

46a

The report of the disciplinary

proceedings (P-Ex-80) reveals that

plaintiff Brooks was given a copy of the

misconduct report on September 19, 1977

at approximately 9:35 p.m. He received

a disciplinary hearing on September 21,

1977. which was held in the RHU.

Defendant Kozakiewicz and Officer Bailey

were present as members of the hearing

committee. Plaintiff Brooks testified

that he had requested inmate Owens-El to

be his representative at the misconduct

hearing and that defendant Kozakiewicz

would not permit him to be present.

Defendants Kozakiewicz and

Deputy Wigton testified that it is a

policy at SCIP to hold disciplinary

- hearings for infractions incurred at the

Allegheny County Jail when the inmate is

transferred to SCIP. An inmate from the

Allegheny County Jail receives a copy of

the misconduct setting forth the reasons

47a

underlying his transfer and a hearing to

determine if the inmate should be placed

in the general population or a more

secure unit. At the hearing,

information from the county jail would

be provided to the hearing committee.

For the most part, a staff member from

‘the county jail would not be present at

the disciplinary hearing at SCIP because

of policy considerations, logistics and

manpower shortages.

Defendant Kozakiewicz testified

that an inmate transferred to SCIP from

any county jail would receive a hearing

at SCIP even if a hearing had already

been held on the incident underlying his

transfer at the county jail. Such a

hearing would concern’ the inmate's

change of jail and any information

concerning the reasons underlying his

transfer would be provided to the

hearing committee.

48a

In addition, an inmate _ going

through a hearing on his transfer from

county jail would be permitted inmate

representation and inmate witnesses.

According to defendant Kozakiewicz, in

plaintiff Brook's case, inmate Owens-

El was not permitted to be present at

the misconduct hearing because’ the

request was for inmate Owens-El . to

witness the hearing and not for inmate

Owens-El to represent plaintiff Brooks

or testify on his behalf.

The court, in Cobb v. Aytch, 643

F.2d 946 (3d Cir. 1981), addressed the

issue of transfers of pretrial detainees |

from county facilities in Philadelphia

to state correctional institutions

across - the Commonwealth of

Pennsylvania. The Court examined the

federal rights that accrue to a pretrial

detainee and held that’ the right to

access to counsel and the right toa.

49a

speedy trial were hampered by the

transfer to a state correctional

facility. In addition, the Court held

that in accordance with Pennsylvania law

the Court of Common Pleas in the county

in which the pretrial detainee was held

pending trial must review the transfer

either before it occurs or, in exigent

circumstances, after the transfer but

within a reasonable time. In the

instant case, plaintiff Brooks was

transferred from the Allegheny County

Jail to the State Correctional

Institution at Pittsburgh without the

benefit of review by the Court of Common

Pleas of Allegheny County either before

he was transferred or within a

reasonable time there-after. Although a

hearing was conducted at SCIP by the

prison officials, this was insufficient

to meet the requirements of Cobb v.

Aytch, supra at 961 in which the Court

50a

specifically held that the transfer

hearing is to be held “in a Pennsylvania

tribunal independent of the _ prison

systen."

Plaintiff Brooks' transfer’ to

SCIP took place in September 1977 while

the decision in Cobb v. Aytch, supra,

was handed down in March 1981. This

decision should not be given

retrospective application. Applying the

test in Linkletter v. Walker, supra at

629, we must weigh the question of

prospective or retrospective application

of Cobb by

",.elooking to the prior history of

the rule in question, its purpose and

effect, and whether retrospective

operation will further or retard its

operation."

The litigation of Cobb spanned

eight years. The complaint was filed in

June 1973. In July 1975 a _ consent

decree was filed binding the

Commonwealth not to accept pretrial

5la

detainees at state correctional

institutions unless the pretrial

detainee consented. . On appeal in July

1976, the Third Circuit Court of Appeals

reversed the District Court's affirmance

of the consent decree and remanded the

case for trial. In January 1977, the

Bureau of Corrections issued A

memorandum requiring the completion ‘and

acceptance of a Petition for Transfer

from, the conduct of a transfer hearing

and the submission of the Petition to

the Court of Common Pleas for approval

before a pretrial detainee could be

transferred to a state correctional

institution, The Court in Cobb

explained that

“CtjJhis memorandum, while it states a

policy of the Commonwealth defendants as

of January 1977, is neither a _ statute

nor a regulation having the force of

law, and the policy it states may be

changed at any time."

Cobb v. Aytch, supra at 950. The case

52a

was heard at trial in January 1979 ana

cross appeals were taken from. the

decision of the District Court that same

year. The final opinion of the Third

Circuit Court of Appeals was filed on

March 13, 1981. Thus, it is evident

from the recitation of the history of

this case that at the time plaintiff

Brooks was transferred from the

Allegheny County Jail to SCIP there dia

not exist a clear rule governing such

action.

The second part of the

Linkletter test for retrospective

application of a ruling is to look to

the purpose and effect of the ruling and

whether its retrospective application

would “further | or retard its

operation". The purpose of the ruling

in Cobb is to ensure that pretrial

detainees are afforded their right to

counsel and to a speedy trial.

53a

Retrospective application of this ruling

would not further or retard its

operation because the individuals to

whom it would apply have already

completed their trials and sentencing or

have been release.

In the instant case, the

decision in Cobb should not be given

retrospective application.

In addition, plaintiff Brooks

alleges that the misconduct hearing he

received at SCIP did not comport with

the requirements enunciated in Wolff v.

McDonnell, supra.: As previously stated,

the Court in Wolff held that an inmate

must be given advanced written notice of

the charges against him; that he has the

right to call witnesses and present

evidence in his behalf and that he be

given a written statement by the

sievcasuct hearing committee of the

evidence relied upon.

54a

At the evidentiary hearing in

this civil rights suit, it was

established that a copy of the

misconduct report was given to plaintiff

Brooks on September 19, 1977 at

approximately 9:35 p.m. On September

21, 1977, plaintiff Brooks received a

misconduct hearing at which time he

submitted his written version of the

incident. Plaintiff Brooks requested

that inmate Owens-El be his witness,

however, that request was denied because

inmate Owens-El was not at the Allegheny

County jail when the incident sail sae

the basis of the misconduct took place.

In addition, plaintiff Brooks received a

written statement by the misconduct

hearing committee. (P-Ex 80). Thus,

the misconduct hearing procedures

enunciated in Wolff were met.

55a

VI. THE RESTRICTIVE HOUSING UNIT (RHU)

In addition to their individual claims,

the plaintiffs allege that the

conditions of their confinement in the

RHU constituted a violation of their

constitutional rights.

The RHU is a separate building

on the SCIP grounds. There are four

ranges above ground in the RHU - U, V,-

W, and X. Each range has nine or ten

cells. Below ground there is another

range.)

The RHU is manned from 8:00 a.m.

to 4:00 p.m. by a lieutenant, a sergeant

and five correctional officers, and from

4:00 p.m. to 8:00 a.m. by a sergeant and

one correctional officer.

lfhis subterranean portion of the RHU

has been the subject of other

litigation. Mayberry v.- Maroney, 558

F.2d 1159 (3rd Cir. ).

56a

The cells in the RHU are fur-

nished with a bed made of a concrete

slab approximately 6-1/2' by 2-1/2'

covered with two mattresses, a toiiet

encased in concrete and a sink.

Lighting is provided by 60 watt

lightbulbs suspended from fixtures in

the . corridor ceiling outside the

2

cells.

A. Sanitation

The plaintiffs allege that

adequate sanitation could not be

maintained while they were in the RHU

because ‘they were not provided with

cleaning supplies with which to clean

their cells.

Deputy Maroney testified at the

2puring the pendency of this suit we

made an unannounced visit to the RHU and

viewed the cells, and it would appear

that the testimonial description accura-

-tely reflects the appearance of these

cell blocks. : |

57a

ciiianienaiaeeeiiiiaai mia deal

nad Pee silat aks ain ine ce al Pee ig”

evidentiary hearings that in 1977 RHU

inmates were provided with rags with

which to clean their cells and that, at

present, disinfectant powder, a water

bucket and a rag or brush are provided

to RHU inmates. Thus, in fact, the REU

inmates were permitted some items with

which to clean their cells. In view of

security requirements it is properly

within the discretion of the institution

administration to limit what types of

items are provided to these inmates.

Jones v. Diamond, 594 F.2d 997 (5th Cir.

1979), cert. dismissed 453 U.S. 950.

(1981).

B. Lighting

The plaintiffs also allege that

lighting was inadequate in the RHU

cells. Plaintiff Howard was prescribed

glasses while he was housed in the FHU.

Plaintiff Brooks had to sit on the floor

by the cell door in order to read and

58a

had been given eyedrops while housed in

the RHU. Plaintiff Joyner testified

that the light switch was under the

control of the RHU officers and that the

lights would be turned on and off as the

officers saw fit.

Deputy Maroney testified that

the light fixtures are located outside

the RHU cells in order to avoid any

injury to the inmates or the staff and

that research is being conducted on

installing a ‘new light fixture that

could be maintained in the individual

cells that would not endanger’ the |

inmates or staff. At present, 60 watt

light bulbs are being used in the

corridor fixtures. In the recent past,

100 watt lightbulbs were being used

until it was discovered that the

electrical system in the RHU shorted-out

when the higher wattage lightbulbs were

being used to correct the situation.

59a

Deputy Maroney testified that the

minimum standard for lighting is 30

candlefeet per cell.

While we have not been presented

with evidence demonstrating whether or

not the lighting in the cells is

ade~quate, to a larger extent this may

be attributed to the inability of the

indigent, pro se plaintiffs to secure

such information. Under these

circumstanstances, it is recommended

that the defendants be required within

thirty (30) days to provide acceptable

certification that the lighting in the

RHU cells conforms with the standards

established by the State Health

Department or else correct the lighting

to comport with those standards and then

file an appropriate auenhtbiecben:

C. Ventilation

In addition to sanitation and

lighting, the plaintiffs allege that: the

60a

ventilation system in the RHU is

inadequate. Deputy Wigton testified

that the RHU had undergone and passed a

number of inspections of the heating and

ventilation system by the Department of

Environmental Resources. Deputy Maroney

added that the RHU was constructed to

provide fresh air ventilation and that

the RHU is thermostatically controlled

to provide an average temperature of

72° Fahrenheit.

Because the only standard

available to the Court to measure the

adequacy of the ventilation system in .

the RHU is that adopted by the Depart-

ment of Environmental Resources, it is

recommended that the Court rely on their

decisions that the RHU has fulfilled all

requirements to provide adequate ventila-

tion in that unit.

D. Personal Hygiene

The plaintiffs also allege that

6la

i A SRE LPR IIE RLS ihe Ke Ts Pea eP arene pene cena tess ane

; < Pe RY a . .

-

in 1977 provisions were not made for

proper personal hygiene to be

maintained. Plaintiffs Howard and

Brooks testified that they did not have

hot running water in their RHU cells.

Exhibits provided by the plaintiffs

establish that plaintiff Brooks, at

least, had hot: running water in the

first RHU cell he was held in and that

the lack of hot running water in his

cell was temporary, having been merely a

matter of the sink needing repair.

(P-Ex 84). p

Plaintiff Howard testified that

the RHU inmates shave with razors

provided by the RHU and that the razors

provided are often dull and_ that

sometimes they are dirty. Razors must

be requested at the 5:30 a.m. call.

They are given to the inmate at washtime

‘and are returned immediately after

shaving.

The RHU administration has an

obvious interest in maintaining full

control of this particular item.

Neither the fact the RHU inmates are not

permitted to maintain razors in their

possession nor the fact that the razors

are sometimes dirty raise questions of

constitutional magnitude. Rather as

Bell v. Wolfish requires, this is a

judgmental decision clearly entrusted to

prison administration.

E. Clothing

Another contention the

plaintiffs raise is that they are

required to wear blue pin-striped

jumpsuits and canvas loafers while

incarcerated in the RHU. Inmates may

not purchase or wear any other outerwear

except that provided by the RHU. Socks

and underwear are not provided to the

inmates. The jumpsuits are laundered

by the institution laundry. Any

63a

en

:

¥

:

.

i

ig

t.

i

personal clothing articles such as socks

or underwear must be wash usually in the

cell sink. While these facts do n

magnitude of a constitutional violation,

it should be noted that in regards to

socks and underwear, inmates in the RHU

should be treated no differently from

other prison inmates. Thus, if other

inmates have their underwear and socks

laundered at the prison laundry, RHU

inmates should enjoy the same benefit.

F. Food

The plaintiffs also complain

about the food in the RHU. Meals are

served to RHU inmates in their cells. }

Breakfast is served between 7:00 and

7:30 a.m.; lunch is served between 11:00

and 11:30 a.m., and dinner is served

between 3:00 and 3:30 p.m., before the

RHU day shift leaves the premises.

The meals are brought to the RHU

in steam carts from the main kitchen.

4

64a

RHU inmates are served the same food as

that served to the general population

and the corrections staff. The RHU

staff serves the meals to RHU inmates

rather than food service personnel

because the RHU staff is more familiar

with procedures for dealing with maximum

security inmates. These officers are

provided training in the way to serve

the food. They do not wear. special

uniforms when serving food. They are

not required to wear hats or other

sanitary garb. |

The plaintiffs testified that

the food served in the RHU is usually |

served cold, and they believe the RHU

staff does not take necessary sanitary

precautions when serving the food.

Plaintiff Joyner testified that he

noticed one particular officer coughing

and sneezing over the food he _ was

serving.

65a

ee

The plaintiffs also testified

that those inmates who are Muslim or

Jewish and who by religious law may not

eat pork are not served a substitute for

pork on the nights it is served at SCIP.

Sections 95.191-95.195 of Title

37, Pennsylvania Code and the Bureau of

Gursuenton Administrative Directive 610

govern the food service at SCIP. They

both provide that foods containing pork

be clearly marked as such and that a

substitute food (e.g. vegetables) be

offered for those who do not eat pork.

In behalf of the defendants, testimony

was offered at the evidentiary hearing

in this civil rights suit that this

policy is carried out in the general

population and in the RHU.

There has been no allegation by

the plaintiffs that they have fallen ill

after eating the food or that their

nutritional needs have not been met.

66a

They do allege that the use of

correctional officers and what’ they

believe to be the lack of sanitary

precautions violates their

constitutional rights.

In Bell v. Wolfish, the Court

held that federal inquiry into matters

_ of prison management must be limited to

the issue of whether a particular act

violated any prohibition of the

Constitution or any federal statute and

that the broad range of permissible

operational day-to-day "judgment calls”

must rest with the appropriate state

authorities and not with the federal

courts. See also: St. Claire Ve

Cuyler, 634 F.2d 109 (3rd Cir. 1980).

The decision of the adminis-_

tration at SCIP to have correctional

officers serve the meals to the RHU

falls within the ambit of discretion

left to state officials. However, the

67a

Bureau of Corrections Administrative

Directive 601 requires that all food

handlers’ be screened,” have annual

physical examinations and receive

training in personal and food service

hygiene. While this requirement applies

to inmates employed in the Food Service

Department, we believe it should also

apply to the correctional officers

assigned to the RHU who serve meals to

the inmates.

G. Library

The plaintiffs allege that their

constitutional rights were violated by

the limited library privileges afforded

them while they were housed in the RHU.

RHU inmates are not permitted

out of their cells to go to the library

3The following tests comprise the

screening of food handlers: serology,

urinalysis, fecal specimen and PPD for

tuberculosis. :

for either recreational purposes or for

conducting legal research. In 1976 and

1977 library service to the RHU was

sporadic and no policy existed for the

release of law books to the PHU. In

1978, a procedure was established

whereby an RHU inmate could submit a

written request for a specific volume

and that volume if available would. be

provided to the inmates. Before a book

is provided to an RHU inmate, the

officer on duty in the RHU must examine

the book to determine whether the book

poses a security risk by virtue of a

mental binding or other security problen.

The library does not provide

xeroxing services or stationery supplies

to indigent inmates in the general

prison population or in the RHU.

The plaintiffs submitted

exhibits to demonstrate that they were

denied access to legal materials while

69a

they were housed - the RHU. (P-Ex l,

6,14). In each of these exhibits an RHU

inmate's request for the provision of a

book was denied. However, in

Plaintiff's Exhibits 6 and 14 _ the

librarian explained that any request for

specific information from the books

requested would be provided by the law

library.

The provision of a law library

or other sources of legal knowledge are

constitutionally mandated. Younger v.

Gilmore, 404 U.S. 15 (1971). This

mandate requires that prison

administrations provide an adequate law

library or adequate assistance from

persons trained in the law. Bounds v.

Smith, 430 U.S. 817 (1977).

In the imetant case, even though

plaintiffs were not permitted to conduct

research in the law library or receive

books for part of their time in the RHU,

70a

Sn

they did have an opportunity to receive

the information they wanted from the

volumes requested by virtue of the

policy of providing specific information

from the books requested. This policy

constitutes the “other sources of legal

knowledge" and the “adequate assistance

from persons’ trained in the law"

required by the above cases.

H. Visitation

The plaintiffs contend that the

restrictions placed on visiting

privileges for RHU inmates also violates

their constitutional rights.

All inmates at SCIP are

permitted five visits per month with up

to ten individuals visiting at one

time. Visiting privileges for RHU

inmates are limited to the hours between

8:30 a.m. and 3:00 p.m. Inmates in the

general population are permitted visits

J7la

until 8:00 p.m. Only two RHU inmates

are permitted visitors at the same

time. When two RHU inmates’ receive

visitors and a Third RHU inmates has a

visitor, the inmate who has_ been

visiting the longest has his visit

terminated.

Bureac : of Correction

Administrative Directive 812 governs

visiting privileges. (P-Ex 30). It

states that morning and afternoon

visiting hours are to be maintained and

that evenirg visiting hours may be

maintained.

The denial of visitation

privileges without a reasonable

justification might amount to a

constitutional violation. Thomas Vv.

Brierly, 481 F.2d 660 (3d Cir. 1973).

However, the manner in which visitation

privileges are granted rests within the

discretion of prison administrators.

72a

Inmates v. Pierce, 612 F.2d 754 (3d Cir.

1979).

Visitation privileges for RHU

inmates are limited to day hours because

of a policy at SCIP requiring RHU

inmates to be escorted by two RHU

correctional officers whenever they

leave the unit. Because there are only

two correctional officers on duty in the

evening hours, visits at that time would

leave the RHU unattended. This

limitation is certainly within the

discretion of the administrators of SCIP

and does not constitute a violation of

the plaintiffs'rights as guaranteed by

the Constitution or the laws of the

United States. Bell v. Wolfish, supra.

In addition to a time limitation

imposed on RHU' inmates' visitation,

these inmates are subject to four strip

‘searches auring the visiting process. A

s*rip search is an observation of the

73a

pete 7 ee eS ee eS ee

i

)

(

inmate's naked body placed in a prone

position.

Before an RHU inmate leaves the

unit to go to a visit he is given a

strip search and placed in restraints.

The inmate is then escorted to a strip

and search room near the visiting area

where a second strip search is conducted

before the inmate dons institutional

visiting clothes. At the conclusion of

the visit another strip search is

conducted in the strip and search room.

The inmates is again placed in

restraints and escorted back to his cell

in the RHU where a fourth strip search

is conducted.

At the evidentiary hearing in

this civil rights suit Deputy Maroney

testified that RHU inmates do not or

into contact with any other inmates

during the time between the first strip

search in the RHU and the second strip

74a

search in the strip and search room and

vice versa on their return to the RHU.

In Bell _v. wWolfish, supra at

559, the Court held that a strip and

cavity search conducted after an inmate

received a contact visit does not

violate the Fourth Amendment guarantee

against unreasonable searches and

seizures, The Court stated that in

order to decide if the search is

reasonable a court must balance "the

need for the particular search against

the invasion of personal rights that the

search entails."

Applying this test to the case

at bar, we can understand the need for a

strip search before and after a visit.

However, there is no apparent necessity

to subject RHU inmates to two. such

searches before and after a visit when

it has been established by testimony at

the evidentiary hearings that RHU in-

75a

mates do not come into contact with any

other inmates in the interim period

between the RHU and the strip and search

roon, are in restraints, and are

accompanied by two prison officials.

Therefore, subjecting these plaintiffs

to four strip searches without adequate

reason is a violation of their right of

freedom from unreasonable searches

guaranteed by the Fourth and Fourteenth

Amendments, and it is recommended that

inmates be subject to only one strip

search before, and one strip search

after visitation.

J. Exercise

The plaintiffs allege that they

were denied an adequate amount of time

to exercise while they were housed in

the RHU.

RHU inmates have an opportunity

to exercise week days only from 8:00

a.m. to 11:00 a.m. and from 1:00 p.m.

76a

until 3:00 p.m. An inmate signs up for

exercise at the 5:30 a.m. call. The

length of the exercise period an inmate

receives depends on the number of

inmates requesting exercise and the

number of correctional officers

available in the RHU to supervise the

exercise period. The average exercise

period lasts fifteen to twenty minutes.

Only two inmates are nies Cane

in the exercise yard at a time. Inmates

incarcerated in the RHU for a

have been placed in the exercise yard ;

with inmates incarcerated in the RHU for

psychiatric problems. While in the RHU,

Joyner was threatened by an inmate with

psychiatric problems who was permitted

to exercise at the same time. Although

RHU officers were present, nothing was

done about the inmate's threats.

The exercise yard | is

approximately 50' by 30' and is

77a

surrounded by walls overseen by two gun

towers. At the hearings, Deputy Wigton

testified that this yard is being

partitioned to allow more inmates to

exercise and still maintain security.

There is no accommodation for exercise

inside the RHU during inclement weather.

It is provided in 61 P.S. §101

that:

“Every warden...shall provide...at

least two hours daily, physical exercise

in the open, weather permitting, and

upon such days on which the weather is

inclement, such person shall have two

hours, daily, of physical exercise

indoors."

Restricting an inmate's opportunity for

physical exercise may be cruel and

unusual punishment. Hoptowit v. Ray,

682 F.2d 1258 (9th Cir. 1982); Ruiz v.

Estelle, 679 F.2d 1115 (5th Cir. 1982);

Clay v. Miller, 626 F.2d 345 (4th Cir.

1980). A court should consider the size

of the cell, the.amount of time the

inmate is locked up and the overall

78a

duration of the confinement to determine

whether or not the time and type of

exercise afforded is proper. Ruiz v.

Estelle, supra at 1152.

In the instant case, the

plaintiffs were housed in small

individual cells. They spend almost

twenty-four hours a day in their cells,

coming out of them only for _ showers,

exercise or medical attention. They

were housed in these cells for. six

months and in plaintiff Joyner's case

sixteen months. Under these

circumstances, providing only fifteen to

twenty minutes. of exercise a day

constitutes cruel | and unusual

punishment, and should be corrected to

conform with minimum Bureau requirements.

K. Religion

The plaintiffs also allege that

their constitutional right to the free

79a

exercise of religion was violated while

they were housed in the RHU.

RHU inmates are not permitted to

attend religious services conducted for

the onenwnd prison population and

religious services are not conducted

within the confines of the RHU. RHU

inmates are permitted to see a spiritual

advisor (e.g. minister of Imam) who .is

brought to the RHU and visits with the

inmate at his cell door. These visits

are eisitbiecent during the day time and

are terminated by 3:30 p.m.

Plaintiff Howard has’ received

visits from an Imam. He testified that

these visits were unsatisfactory due to

a lack of privacy = and the time

limitation.

In St. Claire v. Cuyler, 623

F.2d 109 (3d Cir. 1980), the Court

directly addressed the question. of

80a

denying RHU inmates participation in

religious services with the general

prison population. The Court held that

the policy of denying this participation

was not a constitutional violation and

the establishment of this policy was

within the discretion of the prison

administrators, |

In the instant case, the

plaintiffs were permitted to have visits

from their spiritual advisors even

though they were not permitted to

participate in the _ religious services

with the general prison population. The

limitations on location and the time

frame of these visits does not

constitute a violation of the

plaintiffs' right to the free exercise

of their religion. Bell v. Wolfish,

supra.

L. Notary

The plaintiffs contend that the

8la

availability of the services of a notary

on only one day a week constitutes a

violation of their rights.

Notary services are available to

RHU inmates every Wednesday. In order

to obtain the services of a notary, an

RHU inmate must submit a written request

one week in advance. An inmate who had

not submitted a request for notary

services the prior week could not be

granted those services, even though the

notary was present in the RHU.

‘Deputy Maroney testified that

notary services are provided in the RHU

only one day a week because the notary

is busy serving the general inmate

population on the other two days he

visits SCIP.

Section 93.2 of Title 37,

Pennsylvania Code provides that:

“Notary services shall. be available

for inmates desiring to file legal

documents..."

82a

As long as the services are

reasonably available, the procedure

established for the provision of notary

services in accordance with the above

section to inmates housed in the RHU is

within the discretion of the

administrators of SCIP. Bell Vv.

Wolfish, supra.

Educational Programs

In addition, the plaintiffs

contend that their constitutional rights

were violated because educational

programs were not available to them

while they were housed in the RHU.

RHU inmates are not permitted to

participate in educational programs with

the general prison population because

they are generally not permitted to

leave the RHU. Prior to his placement

in the RHU, plaintiff Story was

participating in college classes and

83a

classes in barbering. He was dropped

from the roles in these classes because

he could not leave the RHU to attend

them. (P-Ex 18).

Deputy Maroney testified ehet at

the time of the evidentiary hearings in

this case an educational program for RHU |

inmates had been established or was in

the process of implementation. :

Idleness or the lack of

rehabilitative or educational programs

does not violate constitutional

guarantees against. cruel and unusual

punishment. Rhodes v. Chapman, 452 U.S.

337 (1980).

N. Commissary Purchases

The plaintiffs allege that their

constitutional rights were violated

because they were not free to purchase

from the commissary all the items that

are listed in. Bureau of Correction

Administrative Directive 815 (P-Ex 57).

84a

RHU inmates are not permitted to

visit the commissary, but commissary

items are brought to the RHU. Inmates

housed in the RHU are not permitted to

purchase outerwear or items containing

metal (e.g. toothpaste in tubes). The

restriction on items containing metal is

based on their ability to be made into

weapons. Instead, items normally

purchased from commissary that are

packaged in some metal form are provided

to the RHU inmates in other containers,

The restrictions imposed on the

purchase of commissary items are within

the discretion of the - prison

administration and do not constitute a

violation of the plaintiffs' rights

under the Constitution or the laws of

the United States. Bell v. Wolfish,

supra.

QO. Medical Treatment

The plaintiffs also contend that

85a

the medical treatment provided to RHU

inmates is inadequate.

SCIP employs two full-time

doctors who are on duty at the institu-

tion from 8:00 a.m. to 4:00 p.m. 4

doctor conducts rounds in the RHU seven

days a week. There are nurses on duty

at SCIP that provide medical assistance

for a total of eighteen hours a day

seven days a week. Pursuant to Bureau

of Correction Administrative Directive

820 (P-Ex 36), the Chief Medical

Officer, Officer Morrash, visits the RHU

daily and a monthly inspection of the

RHU and the entire correctional facility |

is conducted.

There are four psychiatrists,

two doctors of psychology and three

assistants providing - psychiatric

‘gervices at SCIP. RHU inmates may

receive visits from these professionals

at the institution hospital or at their

86a

cells. In addition, emergency medical

personnel are on call twenty-four hours

a day.

In order to establish a constitu-

tional violation for inadequate medical

treatment a plaintiff must prove that

the conduct evidenced “deliberate

indifference to a prisoner's’ serious

illness or injury," or that [s]lystemic

deficiencies in staffing" effectively

denied the plaintiff access to qualified

medical treatment. Estelle v. Gamble,

429 U.S. 97, 105 (1976); Inmates v.

Pierce, 612 F.2d 754 at 762 (3d Cir.

1979). The plaintiffs have not offered

any evidence that would suggest

deliberate indifference to aé_e serious

medical need or that the medical staff

and facility at SCIP is inadequate.

VII. Damages

The award of nominal damages has

been approved where there has been no

87a

showing of actual injury justifying the

award of compensatory damages. Carey v.

Piphus, 435 U.S. 247 (1978); Bradley v.

Coughlin, 671 F.2d 686 (2d Cir. 1982).

In the instant case, there are

some issues on which the plaintiffs have

prevailed, and yet they have suffered no

apparent injury. Accordingly, it is

recommended that damages in the amount

of $1.00 be awarded to the plaintiffs.

VIII. Proposed Findings of Fact

l. The plaintiffs, Stanton Story,

George Brooks, Larry Howard, Louis —

McLemore and Robert Joyner, were

incarcerated in the Restricted Housing

Unit ("“RHU") of the State Correctional

Institution at Pittsburgh ("SCIP") in

September, 1977.

2. Defendant William B. Robinson

was the Commissioner of the Bureau of

Corrections for the Commonwealth of

Pennsylvania, at the time the suit was

filed.

| 88a

3. Defendant James Howard was the

Superintendent of SCIP.

4. Defendant Robert Maroney = and

James Wigton were Deputy Superintendents

of SCIP and were members of the Program

Review Committee ("PRC").

Se Defendant Charles Zimmerman was

the Superintendent of the State

Correctional Institution at Huntingdon

("“SCIH”).

6. Defendant Charles Kozakiewicz

was a correctional officer at SCIP

holding the rank of Captain.

7. Defendants Lawrence Weyandt,

E.J. Krall, Michael Ferris, Steven

Mallinger, Officer Salvay, Officer

Batisma, Sergeant Robeson and Captain

Twyman were employees of SCIP.

8. On September 5, .1977 plaintiff

Larry Howard was questioned by Defendant

Kozakiewicz about gun powder, screws and

pamphlets found in a locker in the

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electric shop at SCIP.

9. On September 5, 1977 plaintiff

Howard was removed from the _ general

inmate population and placed on "J"

Range, where he received a copy of the

ahecsnbide- tibttten against him.

10. The state police initiated an

investigation concerning the items found

in the locker in the electric shop.

1l. On September 7, 1977 plaintiff

Howard received a misconduct hearing at

which time he presented a witness in his

behalf.

12. Plaintiff Howard refused to-

submit his written version of the

incident because of the pending state

police investigation.

13. Plaintiff Howard was found

guilty of the misconduct and sentenced

to 180 days in the RHU.

14. Plaintiff Howard received a copy

of the hearing committee's decision and

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he was advised of his right to appeal

that decision.

15. While plaintiff Howard was

incarcerated in the RHU he received six

monthly reviews by the PRC.

16. Plaintiff Howard requested a new

hearing on the misconduct because he

wanted to give his version of the

incident provided the state police

investigation was completed.

17. On February 6, 1978 a new

misconduct hearing was convened but

plaintiff Howard refused to submit his

version of the incident because the

members of the hearing committee did not

know if the state police investigation

had been completed.

18. Plaintiff Howard was afforded

the rights enunciated in Wolff. v.

McDonnell, 418 U.S. 539 (1974).

19. On September 15, 1977, plaintiff

Stanton Story was receiving a visit from

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his family.

20. During this visit plaintiff

Story excused himself to go to the men's

room.

21. On the way to the men's room

plaintiff Story was ‘met by Defendant

Officer Salvay who took him to the

Major's Office.

22. At the Major's Office a number

of correctional officers attempted to

pry plaintiff Story's mouth open because

it was believed that he was concealing

contraband in his mouth. :

23. Plaintiff Story refused to open

his mouth and began butting the etticern

with his head, flailing his arms and

kicking.

24. Reasonable force was used by the

correctional officers to subdue >

plaintiff Story in an attempt to

confiscate the contraband.

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25. Contraband we recovered from

plaintiff Story's mouth.

26. On September 15, 1977, plaintiff

Story received a copy of a misconduct

report charging him with possession of

contraband and failing to comply with a

direct order.

27. On September 19, 1977, Story

received a misconduct hearing at which

time he submitted his written version of

the incident.

28. Defendant Major Wayandt chaired

the misconduct hearing committee.

29. Plaintiff Story was permitted to

call witnesses in his behalf but |

declined to do so.

30. On September 19, 1977, plaintiff

Story was found guilty and sentenced to

180 days in the REU.

31. Plaintiff Story received a copy

of the written statement of the hearing

committee and was advised of his right

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to appeal its decision. —

32. The correctional officers

involved in the search of plaintiff

Story used force to subdue the

plaintiff, who was flailing his arms,

butting with his head and kicking ehane

33. The correctional officers

involved in the use of force did not act

with malicious or sadistic intent.

34. Defendant Weyandt was merely a

witness to the search of plaintiff Story

on September 15, 1977 and his membership

on the hearing committee which conducted

the misconduct hearing on plaintiff

Story on September 19, 1977 does not

violate plaintiff Story's rights.

35. Plaintiff Story has failed to

prove that the defendants violated any

right assured to him under the

Constitution or the laws of the . United

States.

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36. On August 6, 1976, plaiutiff

Robert Joyner was placed in the RHU

under disciplinary custody maximum to

serve a 180 day sentence for possession

of implements of escape and attempted

assault on a correctional officer.

37. After plaintiff Joyner completed

the sentence he was maintained in the

RHU but his status was changed from

disciplinary custody maximum to

administrative custody maximun.

38. Plaintiff Joyner did not receive

a hearing of any kind prior to or at the

time of his change in status.

39. During plaintiff Joyner's

sixteen month incarceration in the RHU

he received monthly reviews by the PRC.

40. Plaintiff Joyner also received a

copy of the rationale of the PRC which

stated generally that plaintiff Joyner

was being maintained in the RHU as a

security risk and that the PRC was

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attempting to obtain a transfer for him

to another correctional institution.

41. Plaintiff Joyner was maintained

in the RHU in administrative custody .in

conformity with the federal requirements

in existence at the time of his change

in status.

42. On August 25, 1977, at 11330

a.m., plaintiff Louis McLemore received

a copy of a misconduct report charging

him with possession of a broom handle

and he was placed on "J" Range in

investigative status.

43. On August 26, 1977 at 1:00 p.m.,

plaintiff McLemore received a sheconinct

hearing.

44. Misconduct hearings were held

not less than 24 hours after no more

than 6 days after an inmate has received

a copy of the misconduct report.

4s. Plaintiff McLemore has failed to

prove that the defendants violated any

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right assured to him under the

Constitution or the laws of the United

States as to his individuai claims.

46. In September 1977 plaintiff

George Brooks was an inmate at the

Allegheny County Jail awaiting

sentencing.

47. In September 1977 plaintiff

Brooks was involved in an incident. at

the Allegheny County Jail in which he

threatened jail staff with a homemade

knife.

48. In September 1977 plaintiff

Brooks was transferred from ‘the

Allegheny County Jail to the State

Correctional Institution at Pittsburgh

and upon arrival was placed in the RHU

upon a determination by Lt. Higgins that

he posed a security risk.

49. On September 19, 1977 plaintiff

Brooks received a copy of a misconduct

report concerning the events at the

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Allegheny County Jail.

50. The correctional officers

involved in the incident at the

Allegheny County Jail were not present

at the misconduct hearing conducted on

September 21, 1977 at the State

Correctional Institution at Pittsburgh.

Si. Plaintiff Brooks' request that

inmate . Owese-ti be | present at his

misconduct hearing was denied because

inmate Owens-El was not present at the

Allegheny County Jail when the incident

occurred. :

52. Plaintiff Brooks was found

guilty of the misconduct and _ was

sentenced to 180 days in the RHU.

53. The Court of Common Pleas of

Allegheny County did not review

plaintiff Brooks' transfer either before

it occurred or within a reasonable time

thereafter.

98a

54. Plaintiff Brooks has failed to

demonstrate a violation of any rights

individually assured to him under the

Constitution or laws of the United

States.

55. The plaintiffs were provided

with materials to clean their cells in

the RHU. |

56. Lighting was provided to the

individual cells in the RHU by 60 Watt

lightbulbs positioned in the corridor

ceilings outside each RHU cell.

57. The ventilation system in the

RHU provided an adequate supply of fresh

air.

58. The sinks in the RHU_ cells

furnished the plaintiffs with hot and

cold running water.

59. Inmates in the RHU were provided

with razors under strict supervision.

60. Restrictions on clothing were

imposed on RHU inmates.

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61. Meals were served to RHU inmates

in their cells by RHU_ correctional

officers.

62. The plaintiffs received a

substitute food choice when pork was

being served.

63. The plaintiffs were not

permitted to go to the law library while

they were housed in the RHU.

64. In 1977 there was no policy for

the provision of law books to _ RHU

inmates, but the library would provide

specific information from the volumes

requested.

65. RHU inmates could receive visits

from 8:30 a.m. to 3:00 p.m.

66. RHU inmates were subjected to

four strip searches during the visiting

procedure--one strip search before they

left the RHU for a visit, the second

strip search when -they . actu at the

strip and search room to change into

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visiting clothes, the third strip search

in the strip and search room after the

visit and the fourth strip search when

they returned to the RHU.

67. A strip search is an observation

of the naked body placed in a prone

position.

68. Between the time an RHU inmate

= strip searched in the RHU and the

time he was strip searched in the strip

and search room he was-7 placed in

restraints and did not come into contact

with any other inmates.

69. Between the time an RHU inwate

was strip searched in the _ strip and

search room after a visit and the time

he was strip searched back in the RHU he

was placea in restraints and did not

come into contact with any other inmates.

70. RHU inmates were permitted

approximately fifteen. to twenty minutes

of exercise on weekdays only.

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71. The Pennsylvania Statutes

require that all inmates be provided at

least two hours of physical exercise

daily.

72. ##The plaintiffs, while housed in

the RHU, were not permitted to attend

religious services with the _ general

prison population and religious services

were not conducted in the RHU.

73. The plaintiffs were permitted to

receive visits from their spiritual

advisor during the day and these visits

were conducted at their cell door.

74. Notary services were euetbenie

to the plaintiffs every Wednesday so

long as they had submitted a written

request a week in advance.

78. The plaintiffs were not

permitted to participate in educational

programs with che general prison popu-

lation and educational programs were not

conducted in the RHU.

102a

76. The administration at SCIP

restricted the items the plaintiffs and

other RHU inmates could purchase at the

commissary based on security consid-

erations.

77. SCIP employed two full-time

doctors.

78. There were four psychiatrists,

two doctors of psychology and three

assistants providing psychiatric

services at SCIP.

79. SCIP employed nurses who provide

medical coverage for eighteen hours a

day.

80. The plaintiffs have not

demonstrated a denial of any required

medical treatment.

IX. Proposed Conclusions of Law

1. This Court has jurisdiction

over the subject matter of this action

brought under the provisions of 42

103a

U.S.C. § 1983 pursuant to the provisions

of Section 1343 of Title 28, United

States Code.

) 2. Plaintiff ‘Howard was

afforded the rights enunciated in Wolff

v. McDonnell, supra.

3. Plaintiff Howard has failed

to prove that the defendants violated

any rights assured to him individually

under the Constitution or laws of the

United States.

4. An individual who has

witnessed an event underlying . a

misconduct may be a member of _ the

hearing committee on that misconduct so

long as his involvement in the event was

not direct or substantial.

5. Plaintiff Story has failed

to prove that the defendants violated

any right assumed to him, individually,

under the Constitution or laws of the

United States.

104a

6. Plaintiff Joyner has failed

to prove that the defendants violated

any rights assured to hin, individually,

under the Constitution or laws of the

United States.

7. Plaintiff McLemore has

failed to prove that the defendants

violated any rights assured to him,

individually, under the Constitution. or

laws of the United States,

8. Plaintiff Brooks has failed

tO prove that the defendants violated

any rights: assured to hin, individually,

under the Constitution or laws of the

United States,

9. The sanitation in the RHU is

in conformity with existing requirements.

10. The lighting in the cells

in the RHU must conform with minimal

standards established by the State

Health Department.

Pundit Caden abe reel

ai. The ventilation in the RHU

conforms with the standards established

by the Department of Environmental

Resources.

12. Within the parameters of

institutional safety, the inmates in the

RHU are provided with articles for

personal hygiene.

13. Inmates in the RHU should

be provided with laundry services

similar to those enjoyed by other prison

inmates. |

| 14. Food service in the RHU

must be in conformity with Bureau of

Prison standards.

15. Inmates in the RHU are

provided with adequate access to library

materials within the needs of

maintaining institutional security.

| 16. Visitation privileges of

RHU inmates comports with nintued

requirements.

106a

17. The double strip searches.

of RHU inmates before and after

visitation is unreasonable.

18. Inmates in the RHU must be

permitted to enjoy minimal exercise

privileges established by the Bureau of

Prisons, with adequate safety

precautions.

19. Limitations of exercise of

RHU inmates to 15-20 minutes on week iays

is unconstitutional.

20. talebée in the RHU enjoy a

reasonable opportunity to exercise their

religious beliefs in conformity with the

necessity for maintaining institutional

security.

21. Reasonable notary services

are available to inmates in the RHU.

22. The denial of an.

opportunity to participate in

inetitetional educational programs for

RHU inmates is necessitated by

107a

institutional security requirements.

23. Inmates in the RHU are not

unreasonably barred from purchasing

certain articles from the prison

commissary.

24. The medical treatment

provided for inmates in the RHU does not

violate any constitutional standards.

25. Judgment should be entered

against the plaintiffs and in favor of

the defendants on all issues except

those concerning strip searches’ and

exercise privileges of inmates in the

RHU, and on these issues damages in the

amount of $1.00 should be awarded.

Respectfully submitted,

ROBERT C. MITCHELL

United States Magistrate

ited: January 25, 1983

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