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Mims v. Shapp

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


November 29, 1982

JEFFREY ROGER MIMS, JOHN JAMES KEEN, EDWARD X. SISTRUNK, GLENN X. JORDAN, FRED BURTON, VIVIAN RICHBOURG, DAVID SCOGGINS, FRANK PATTERSON, CLIFFORD FUTCH, ALL PRISONERS AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA (HEREINAFTER REFERRED TO AS S.C.I. PGH.), ALL WHO WERE OR ARE PRESENTLY CONFINED TO THE BEHAVIORAL ADJUSTMENT UNIT, (HEREINAFTER KNOWN AS THE B.A.U.), ON BEHALF OF THEMSELVES AND ALL THOSE SIMILARLY SITUATED IN THE B.A.U.
v.
MILTON SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ISRAEL PACKEL, ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, STEWART WERNER, COMMISSIONER OF THE BUREAU OF CORRECTIONS FOR THE COMMONWEALTH OF PENNSYLVANIA, JAMES HOWARD, WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, CHARLES ZIMMERMAN, DEPUTY WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, WILLIAM JENNINGS, DEPUTY WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, LAWRENCE WEYANDT, MAJOR OF THE GUARDS AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, JOHN JASAK, CAPTAIN OF THE GUARDS AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, DAVID YOUNG, CASEWORK SUPERVISOR AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, CHARLES KOZAKIEWCZ, LIEUTENANT OF THE GUARDS OF THE STATE CORRECTIONAL INSTITUTION AT PGH. IN CHARGE OF PRISON SECURITY, JAMES ROBLES, SERGEANT OF THE GUARDS OF THE SCI PGH. IN CHARGE OF THE B.A.U., SERGEANT CARUTHERS, SERGEANT OF THE GUARDS OF THE SCI PGH. IN CHARGE OF THE B.A.U., THEIR AGENTS, SUBORDINATES AND EMPLOYEES; FREDERICK BURTON V. WILLIAM B. ROBINSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF CORRECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, STEWART WERNER, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS COMMISSIONER OF CORRECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, ROBERT L. JOHNSON, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, GRATERFORD, PENNSYLVANIA, JULIUS T. CUYLER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, JOSEPH BRIERLY AND GILBERT A. WALTERS, INDIDIVUDALLY AND IN THEIR FORMER OFFICIAL CAPACITIES AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PITTSBURGH, PENNSYLVANIA, AND JAMES F. HOWARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST MILTON SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ISRAEL PACKEL, ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, STEWART WERNER, COMMISSIONER OF THE BUREAU OF CORRECTIONS FOR THE COMMONWEALTH OF PENNSYLVANIA, JAMES HOWARD, WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, CHARLES ZIMMERMAN, DEPUTY WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, WILIAM JENNINGS, DEPUTY WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, LAWRENCE WEYANDT, MAJOR OF THE GUARDS AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, JOHN JASAK, CAPTAIN OF THE GUARDS AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, DAVID YOUNG, CASEWORK SUPERVISOR AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PENNSYLVANIA, CHARLES KOZAKIEWCZ, LIEUTENANT OF THE GUARDS OF THE STATE CORRECTIONAL INSTITUTION AT PGH. IN CHARGE OF PRISON SECURITY, JAMES ROBLES, SERGEANT OF THE GUARDS OF THE SCI PGH. IN CHARGE OF TH E B.A.U., SERGEANT CARUTHERS, SERGEANT OF THE GUARDS OF THE SCI PGH. IN CHARGE OF THE B.A.U., THEIR AGENTS, SUBORDINATES AND EMPLOYEES WILIAM B. ROBINSON, INDIVUDALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF CORRECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, STEWART WERNER, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS COMMISSIONER OF CORRECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, ROBERT L. JOHNSON, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, GRATERFORD, PENNSYLVANIA, JULIUS T. CUYLER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, JOSEPH BRIERLY AND GILBERT A. WALTERS, INDIVIDUALLY AND IN THEIR FORMER OFFICIAL CAPACITIES AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, PITTSBURGH, PENNSYLVANIA, AND JAMES F. HOWARD, INDIVIDUALLY AND HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, APPELLANTS

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Author: Aldisert

Before: ALDISERT and HIGGINBOTHAM, Circuit Judges and MEANOR, District Judge*fn*

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This appeal is brought by Pennsylvania prison officials, defendants below, from a judgment and damage award entered in favor of a state prisoner in a non-jury trial brought under 42 U.S.C. § 1983. We must decide whether the district court erred in determining that defendants violated the prisoner's due process rights by placing him in segregated confinement for five years. If we conclude that the district court was correct in this determination, we must then decide if the award of damages was appropriate.

Appellants argue that: (1) they did not violate appellee's constitutional rights; (2) if they did then they are not liable for damages because they are protected by qualified executive immunity; and (3) if they are not so protected, then the damages were erroneously awarded as the district court failed to find that plaintiff's confinement was unjustified and it wrongly assessed liability from January to September 1978. We find these contentions meritless and affirm the judgment of the district court.

I.

In May 1973 plaintiff Burton was an inmate in Philadelphia's Holmesburg prison serving a sentence for conspiracy to commit murder. See Commonwealth of Pennsylvania v. Burton, 459 Pa. 550, 330 A.2d 833 (1974). While at Holmesburg he was involved in a confrontation with the warden and deputy warden, which resulted in their deaths by stabbing.*fn1 Immediately after this incident, Burton was transferred first to the state prison in Graterford and subsequently to Western Penitentiary in Pittsburgh. He was placed in solitary confinement in the Behavioral Adjustment Unit (BAU) in both prisons. Burton remained in solitary confinement in Western Penitentiary for more than five years until his release into the general prison population in September 1978.

Although no hearing preceded his assignment to the BAU at either Graterford or Pittsburgh, by late 1975, prison authorities at Western Penitentiary began regular monthly reviews of Burton's solitary confinement status through the Program Review Committee (PRC). The court below found that the PRC always recommended that Burton remain in the BAU for an additional thirty days. These recommendations were submitted to the Warden, Mr. Howard, who invariably agreed. At no time prior to his BAU release in 1978 did the prison authorities develop plans to reintroduce Burton gradually into the general prison population; at no time was Burton informed of specific criteria by which his eligibility for a return to the general population would be judged; at no time was he allowed sufficient contacts with the world outside the BAU whereby he might demonstrate that he no longer represented a significant security risk to the prison. Mims v. Shapp, 457 F.Supp. 247, 249-50 (W.D.Pa. 1978) (opinion issued with order granting motion for preliminary injunction).

Burton filed suit in 1975 under 42 U.S.C. § 1983 alleging, inter alia, that his continued confinement in the BAU violated his fifth amendment due process rights and the eighth amendment prohibition against cruel and unusual punishment, both made applicable to the states under the fourteeneth amendment. He sought injunctive relief, declaratory judgment, compensatory and punitive damages, and attorney's fees. In August 1978, the district court granted Burton's motion for a preliminary injunction against his continued confinement. In so ruling, the court did not rely on the eighth amendment, as it concluded that "the conditions in the BAU . . . are not so shockingly inadequate as to constitute in themselves cruel and unusual punishment. . . ." Mims, 457 F.Supp. at 250. On Burton's fifth amendment claim, however, the district court found a constitutional violation "that the Commonwealth . . . failed to give Burton . . . minimum due process protections. . . ." Id. at 252. Subsequently, in September 1978, Burton was released from the BAU; in November 1980, the district court awarded him $6,700 in compensatory damages; and in December 1981, he was awarded $8,200 in attorney's fees. Defendants appealed.

II.

Appellants' first contention is that the trial court erred in holding that Burton suffered any deprivation of his constitutional right to due process. In reviewing the district court's holding, our standard is "plenary" as to the choice and application of the controlling legal precepts and "clearly erroneous" as to any facts required to be found in support of the ruling. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981); Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972).

In determining that a constitutional violation had occurred, the district court applied the principles of Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975). In Kelly, the Eighth Circuit stated that

While . . . administrative segregation is not inherently unconstitutional, the validity depends upon . . . the existence of a valid and subsisting reason or reasons for the segregation. . . . It goes without saying that a prison warden may not constitutionally put an inmate in administrative segregation, involving solitary confinement or other rigorous conditions of imprisonment, simply because he dislikes the inmate or desires to punish him for past misconduct. Moreover, it should be emphasized that the reason or reasons for the segregation must not only be valid at the outset but must continue to subsist during the period of the segregation.Conditions in prisons change as they do everywhere else, and a reason for administrative segregation of an inmate that is valid today may not necessarily be valid six months or a year in the future.

525 F.2d at 400 (emphasis added). Like the court below, we read Kelly to hold that due process requires both: (1) periodic review by the prison authorities of the segregated confinement decision; and (2) the use of objective relevant standards to insure that confinment remains continually valid and necessary. If the authorities are permitted to rely on purely subjective standards or prior prisoner conduct in determining the continuing validity of the confinement decision then the review, while "periodic," would not be sufficiently "meaningful" to comport with the requirements of due process. While Kelly has been relied, on, or cited with approval by, several district courts in this circuit, see United States ex rel. Hoss v. Cuyler, 452 F.Supp. 256 (E.D. Pa. 1978); Mayberry v. Robinson, 427 F.Supp. 297 (M.D. Pa. 1977); United States ex rel. Bennett v. Prasse, 408 F.Supp. 988 (E.D. Pa. 1976), we have not officially embraced its principles. We do so today and conclude, therefore, that the court below chose and applied the correct legal precept in determining that the actions of the prison officials violated Burton's constitutional right to due process of law.

The district court below went a step further than Kelly, however, and concluded that due process required not only periodic review using objective criteria, but also required "that these criteria must be communicated to Burton." 457 F.Supp. at 252. We agree, and hold that due process demands this important, albeit simple, expansion of Kelly Cf. Wolff v. McDonnell, 418 U.S. 539 (1974).*fn2

The question remains whether the facts as found by the district court support the conclusion of constitutional deprivation under Kelly. Kelly requires two distinct factual inquiries: first, the existence of periodic evaluations; and second, the use of meaningful, objective criteria. Since there were, at least after 1975, monthly meetings of the PRC concerning Burton's continued BAU confinement, the periodic review requirement of Kelly is satisfied. The district court determined that the second element, the use of objective standards in the evaluation process, was lacking.

In making this finding, the court placed special significance on a report prepared by Warden Howard at the request of the court. Although this report listed several justifications to support Burton's continued BAU confinement,*fn3 the district court found that all were insufficient.

The court also relied on oral testimony of both Warden Howard and Pennsylvania Corrections Commissioner Robinson. Howard testified that in affirming the PRC's monthly recommendations he relied on Burton's involvement in "[t]he murder of the warden and . . . deputy warden within the confine of Holmesburg Prison. The fact that some of our staff felt Mr. Burton was an extremely dangerous individual . . . a fact that I personally agreed with . . ." 457 F.Supp. at 249. Robinson testified that Burton was committed to solitary confinement because of his "past criminality." Id. Howard also expressed uneasiness with Burton's initially uncommunicative behavior while in the BAU. This feeling was based on what he perceived as Burton's "rather cold attitude, his unwillingness to cooperate, his apparent satisfaction with being in the BAU. His lack of demands."*fn4 Id. By May 1977, however, after the completion of his trial for the Holmesburg stabbings, Burton's attitude apparently changed. Warden Howard commented that by this time Burton became cooperative, informative, and agreeable. Burton v. Shapp, 500 F.Supp. 760, 762 (W.D. Pa. 1980) (opinion issued with order awarding compensatory damages). Notwithstanding this change in attitude, Burton remained in the BAU.

On the basis of this evidence the district court found that decisions by the prison authorities to keep Burton in the BAU were based on: (1) a desire to punish Burton for past criminal misconduct, (2) official ignorance of the fact that Burton's silence and exculpatory declarations were the result of advice of counsel during pending litigation, and (3) subjective rather than objective evaluative criteria. We cannot say that these findings are clearly erroneous and hold, therefore, that the district court properly concluded that Burton's confinement did not comply with the requirements of Kelly and that his due process rights were violated.

In so holding we recognize, of course, that prison inmates are in special circumstances and constitutional rights available to the general public may not be available to them. Before a right, asserted to exist by an inmate, should be reocgnized by a court, the court should seek an "accommodation between the institutional needs and objective [of the prison] and the provisions of the Constitution that are of general application." Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

As early as 1970, recognizing the existence of a fundamental tension between the rights of prisoners and the requirements of effective prison management, this court stated:

To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community.

Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970). Four years later, the United States Supreme Court, in two separate opinions dealing with the rights of prison inmates, elaborated on this tension. In one case it recognized that one of the primary functions of prison administration was "the institutional consideration of internal security within the corrections facilities themselves," Pell v. Procunier, 417 U.S. 817, 823 (1974), while in the other it emphasized that "though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protection when he is imprisoned for crime." Wolff v. McDonnell, 418 U.S. 539, 555 (1974). When the facts of this case are considered, and the conflicting interests are weighed and balanced, the scale tips clearly in favor of Burton.

The rights herein recognized will not adversely affect either the "institutional consideration of internal security" or the "practical necessities of managing" the prison. These practical considerations of internal prison security are paramount when prison officials make the original decision to segregate a troublesome inmate and the subsequent decisions either to release that inmate back into the general prison population or to retain him in segregation. The rights involved in the instant case, however, are not such as would either prevent initial confinement or require subsequent release. The rights at issue here are simply the right of the solitarily confined prisoner to have a periodic review of the original segregated confinement decision, the right to have objective criteria employed in making that periodic review, and the right to be informed of those criteria. These are quintessentially procedural rights. They are analytically and functionally separate from the decision to segregate or the decision to continue that segregation, they do not depend on the severity of the treatment associated with segregated confinement,*fn5 and they have no substantial effect on the internal security of the facility or the practical aspects of prison administration.

III.

Appellants next argue that, even if Burton's constitutional rights were violated, they cannot be held liable for damages because they are protected by qualified executive immunity. Although it is clear that prison administrators who perform discretionary functions are entitled to qualified immunity from monetary liability under § 1983, Procunier v. Navarette, 434 U.S. 555, 561 n.7 (1978), to successfully invoke this immunity, they must have acted (1) in good-faith and (2) with a reasonable belief that their conduct was proper. Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974). The questions of good faith and reasonableness are questions of fact to be determined by the factfinder. Before a trier of fact can make such factual determinations, however, the relevant questions must be properly presented to it for consideration.

Here, appellants' answer to Burton's original complaint, which prayed for both compensatory and punitive damages, properly raised the defense of qualified immunity from any damages. But, whether the issue remained properly before the trial court must be determined in light of the pretrial conference on the damage issue, held on July 1, 1980. At that conference, the district court requested clarification of the good faith issue -- whether it should be considered only in terms of the punitive damage claim or whether it should also be considered in terms of the qualified immunity defense. As the transcript indicates, counsel for appellants thought that the immunity defense was not available to protect the appellants, that the only remaining applicability of the good faith issue was as a bar to the award of punitive damages, and that it had no affect on an award of actual or compensatory damages.*fn6 It also must be remembered that pretrial conferences "should not be viewed as merely an informal meeting at which those involved can act without concern for future consequences" and further that "statements of counsel made at the pretrial conference [are] binding for purposes of trial." 6 C. Wright and A. Miller, Federal Practice and Procedure § 1527, at 599-601. Simpson v. Union Oil Company of California, 411 F.2d 897, 900 n.2 (9th Cir.), rev'd on other grounds, 396 U.S. 13 (1969); United States v. Tampa Bay Garden Apartments, Inc., 294 F.2d 598, 606 (5th Cir. 1961). In light of the foregoing we hold that the defendants voluntarily abandoned their immunity defense at pretrial conference and that it was no longer properly before the trial court for consideration.*fn7

IV.

Appellants next argue that even if a constitutional violation were present and if they are not protected by qualified immunity, errors by the district court make the damages awarded inapproprate. First, appellant assert that the district court did not make a specific finding that Burton's continued confinement was unjustified and that absent such finding, there is no basis for an award of compensatory damages. Carey v. Piphus, 435 U.S. 247 (1978), United States ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3d Cir. 1976). Although we agree with appellants' statement of the law, we conclude that they have simply misread the trial court's findings.

In its November 1980 opinion in support of compensatory damages the district court specifically stated that the legal justification for continued confinement ceased sometime after May 1977 -- when Warden Howard akcnowledged a new cooperative attitude in the plaintiff Burton. The court also noted that by May 1978 the denial of the plaintiff's due process rights, stemming from the appellant's failure to employ objective evaluatory criteria and had they used objective criteria their failure to inform Burton of the nature of those criteria, became so evident that the court was forced to enjoin them. 500 F.Supp. at 762. Thus, the trial court did conclude that Burton's continued segregated confinement became unjustified sometime between May 1977 and May 1978, and appellants' contention to the contrary fails.

Appellants next contend that the district court incorrectly chose $25 per day of unjustified segregated confinement as the basis for computing compensatory damages. The determination of the amount of damages is a question of fact for the trial court and will not be overturned unless clearly erroneous. Busche v. Burkee, 649 F.2d 509, 518 (7th Cir.), cert. denied, 454 U.S. 897 (1981). The district court based its use of the $25 figure on decisions in similar cases where the plaintiffs suffered injury from a constitutional violation but where no proof of actual pecuniary loss could be shown. United States ex rel. Neal v. Wolfe, 346 F.Supp. 569, 576 (E.D.Pa. 1972); Mack v. Johnson, 430 F.Supp. 1139, 1149-51 (E.D.Pa. 1977), aff'd mem., 582 F.2d 1275 (3d Cir. 1978). As stated by the court in Mack, "assessing damages [for unconstitutional segregated confinement] on a per diem basis is, for want of a better method, the most sensible . . . [and] the sum of $25.00 per day is a reasonable per diem figure." 430 F.Supp. at 1151. In view of the conditions under which Burton existed while in the BAU we cannot conclude that the award of $25 a day was clearly erroneous.

Finally appellants argue that the district court erred in selecting January 1, 1978 as the date when damages commenced to run. They first contend that the court should have set the beginning date to coincide with the decision in United States ex rel Hoss v. Cuyler, 452 F.Supp. 256 (E.D.Pa. May 1, 1978)*fn8 which appellants argue was the first case in this circuit to adopt Kelly v. Brewer. Alternatively, appellants argue that no damages should have been awarded at all because until the entry of the district court's order in the instant case there was no precedent on this issue in the Western District of Pennsylvania and, therefore, they had no reasonable basis upon which to believe that their actions violated plaintiff's due process rights. The determination of when damages should begin to run is a question of fact, here determined by the court, and subject to reversal only if clearly erroneous.

Damages in this case were assessed from January 1, 1978 through September 1978. Implicit in this award are trial court findings that appellants were not entitled to be free from damages either before the May 1, 1978 Hoss decision or absolutely because of a lack of precedent in the Western District of Pennsylvania. Our decisions and those of the Supreme Court recited in Part II supra, coupled with the reality that Kelly, on which Hoss relied, was decided in 1975 and cited with approval by district courts in Pennsylvania as early as United States ex rel. Bennett v. Prasse, 408 F.Supp. 988 (E.D.Pa. 1976), furnish support for a determination that appellants could not reasonably expect to be free from accountability for their actions prior to the Hoss decision.Further, if there is no reasonable basis for appellants to believe that they would not be held liable for actions taken prior to Hoss, then a fortiorari there is no reasonable basis for them to believe that they would not be held liable at all.

Also as noted above, the district court did not err in concluding that the actions of defendants worked a deprivation of Burton's due process rights sometime between May 1977 and May 1978. Further, Burton was actually released from the segregated cell in September 1978. Therefore, while the district court did not expressly so state, it is apparent that it arrived at the January 1, 1978 date for commencement of damages by splitting the difference between May 1977 (the earliest date of possible due process violation) and September 1978 (date of Burton's release from the BAU). In the absence of any more explicit evidence upon which to select an exact date, and because Burton could not supply any more precise information on the point, this determination seems reasonable and not clearly erroneous.

V.

The judgment of the district court will be affirmed in all respects.

MEANOR, District Judge, dissenting in part:

I agree with most of the majority opinion, but cannot concur in affirmance of that portion of the district court's judgment that directs the promulgation of objective standards which Burton can meet in order to secure his release from the BAU.

Obviously, the majority is positing an entitlement in Burton not to be in the BAU except under defined conditions. It nowhere states the source of this right or entitlement, although it is inferable that reliance is placed on procedural due process. Some courts have used procedural due process as a basis for federal creation of entitlements to prisoner rights.*fn1 Other cases take the opposite view.*fn2 I happen to agree with the latter, but see no reason to imply, much less hold in this case, that procedural due process provides a basis for the federal creation of rights or entitlements in the matter of conditions of confinement. I say this because I believe that Pennsylvania prison regulations create an entitlement in Burton not to be placed or kept in the BAU unless his presence in the general prison population would constitute a threat to the safety of other inmates or to prison staff.*fn3 It is well settled that state-created rights are protected by the due process clause, and once such a right exists its abrogation must comport with procedural due process.*fn4 This is as far as we need to go in this case, and we need not flirt with the dangerous and, I believe, erroneous doctrine that procedural due process can serve as the basis for creation of rights as distinguished from a means to protect against their arbitrary estinguishment.

Because I believe that procedural due process provides no basis for the creation of substantive right, I must dissent from the majority's affirmance of that portion of the district court's judgment that directs the promulgation of objective standards which, if met, will entitle a prisoner to be removed from Administrative Custody.

First, I believe that the present standard of permitting, under the facts here, Burton's confinement to the BAU only while he remains a threat to the safety of others is a sufficient standard. Under 18 U.S.C. § 3148, bail pending appeal may be denied where the court "has reason to believe that no one or more conditions of release will reasonably assure that the person will not . . . pose a danger to any other person or to the community." See United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979) (application of 18 U.S.C. § 3148 upheld). If this standard of dangerousness to others is sufficient to deny bail pending aypeal, then it follows that posing a "threat" to other inmates or to staff is a standard sufficient to place an inmate in Administrative Custody.*fn5

Second, the direction to promulgate objective standards constitutes federal creation of additional entitlements and as I have stated above, it is my position that the federal judiciary cannot utilize procedural due process as the mechanism through which to create rights or entitlements in the matter of conditions of confinement.*fn6

The district court found that while confined to the BAU Burton ceased to be dangerous but was retained in Administrative Custody as punishment for his past crimes and not because he would pose a threat to the safety of others if returned to the general prison population. I cannot say that the district court's findings are clearly erroneous.*fn7 Hence, I agree with the affirmance of the money judgment in favor of Burton as compensation for unnecessarily prolonged confinement in the BAU, and I have no quarrel with the amount of that judgment or the period of confinement selected by the district court as that for which compensation should be awarded. I also agree with the majority that the good faith immunity defense was waived.

In short, I would modify the judgment below to excise therefrom the direction for the promulgation of objective standards that a prisoner can meet in order to qualify for release from Administrative Segregation.


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