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June 10, 1980

Grailing BROWN and Darryl Conquest
Gary J. HILTON, Individually, etc., et al.

The opinion of the court was delivered by: DEBEVOISE

Plaintiffs Grailing Brown and Darryl Conquest, inmates at New Jersey State Prison at Trenton, brought this civil rights action under 42 U.S.C. ยง 1983 against various prison officials for alleged violations of their constitutional rights. Plaintiffs seek declaratory and injunctive relief as well as damages. The circumstances which gave rise to plaintiffs' action are as follows:

On December 28, 1978, prison guards conducted a routine search of inmate Charles Allen's cell at the New Jersey State Prison at Trenton (State Prison) and found six encyclopedias entitled "The Illustrated Science and Invention Encyclopedia" and papers dealing with ammunition and weapons. Lieutenant Jimmie L. Williams, the area supervisor, directed that these materials be confiscated as contraband.

 Inmate Allen told Sergeant Nunn that the confiscated encyclopedias belonged to inmate Grailing Brown. As a result of this information, Sergeant Nunn and Officer W. Thompson conducted a search of inmate Brown's cell on December 29, 1978 and confiscated as contraband a book entitled "Infantry Weapons" by John Weeks.

 On December 30, 1978, Officers Johnni Haynes and Anthony Persichetti conducted a search of inmate Darryl Conquest's cell because Conquest was a known accomplice of inmates Brown and Allen. The officers confiscated certain materials as contraband.

 Plaintiffs Brown and Conquest were transferred to the Management Control Unit (MCU) to await disciplinary hearings. Before they were admitted to their cells in MCU, they were strip-searched *fn1" and subjected to a visual anal inspection. *fn2" Both received written notice of the disciplinary charges charged: Department of Corrections Rules 251.263 Nos. .209 and .306. *fn3"

 On January 2, 1979, Officer Vito Casarella held disciplinary hearings for each of the plaintiffs. After reviewing the charges, Casarella continued both hearings for twenty-four hours in order to review the materials and to check with the mailroom.

 On January 3, 1979, Casarella amended the charge to Rule 251.263 No. 803 to .306 *fn4" for each plaintiff and allowed the plaintiffs to exercise their right to postpone the hearing for an additional twenty-four hours.

 On January 4, 1979, Casarella heard arguments on the charges in separate hearings and found both inmates guilty of violating Rule 251.263 No. 803. He imposed fifteen days punitive lock-up, loss of 365 days good time, and administrative segregation not to exceed 365 days.

 Plaintiffs' appeal to Gary Hilton, the institution's superintendent, was denied. Plaintiffs filed the instant action on February 13, 1979. On February 26, 1979, Superintendent Hilton amended the disciplinary actions taken against inmates Brown and Conquest and released them from administrative segregation, restored their commutation time, expunged the charges brought against them, and withdrew the referral to the MCU-Special Classification Committee. In April, 1979, a large portion of the materials confiscated from the plaintiffs' cells was returned.

 When considering a motion for summary judgment, a court is required to resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). Furthermore, even when the material facts are not in dispute, summary judgment may be inappropriate when contradictory inferences may be drawn from the facts. DeLong Corporation v. Raymond International, Inc., 622 F.2d 1135 (3d Cir. 1980), citing United States v. Perry, 431 F.2d 1020 (9th Cir. 1970). Thus, the moving party must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See, Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir.), cert. denied, 396 U.S. 941, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969).

 Supreme Court decisions have established general principles to inform our evaluation of the constitutionality of prison restrictions. The Court has held that prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison, but that these retained rights are necessarily limited by the fact of confinement as well as by the legitimate goals and policies of the penal institution. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S. Ct. 2532, 2539, 53 L. Ed. 2d 629 (1977); Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974); Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447 (1979). The Court has recognized that maintaining institutional security and preserving internal order and discipline are legitimate and essential goals of the prison administration which may require limitation of the retained rights. Pell v. Procunier, supra, 417 U.S., at 823, 94 S. Ct., at 2804; Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 129, 97 S. Ct., at 2539; Procunier v. Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 1810, 40 L. Ed. 2d 224 (1974). The Court has also noted that prison administrators are to be accorded wide-ranging deference in their policies and practices which, in their judgment, are needed to preserve internal order. Procunier v. Martinez, supra, at 404, 405, 94 S. Ct., at 1807.



 The Supreme Court has never decided to what extent, if any, prisoners retain Fourth Amendment rights upon incarceration. See Bell v. Wolfish, supra; Lanza v. New York, 370 U.S. 139, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962); and United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). Other courts have considered the issue. In Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975), the Seventh Circuit found that prison authorities need not have a warrant or probable cause to search a cell. The Court was persuaded, however, "that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody". In Hodges v. Klein, 412 F. Supp. 896 (D.N.J.1976), Chief Judge Fisher agreed with the view taken in Bonner prisoners are protected against unreasonable searches and seizures and do have a qualified right to privacy. In Saunders v. Packel, 436 F. Supp. 618, 626 ...

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