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December 5, 1988

SIMON ROSENBACH, et al., Defendants

The opinion of the court was delivered by: WOLIN

 Plaintiff Anthony Getch, an inmate at Rahway State Prison, has brought this action under 42 U.S.C. § 1983 for the alleged violation of his constitutional rights by defendants Simon Rosenbach, an assistant county prosecutor, and John J. Rafferty, the superintendent of Rahway State Prison. *fn1" Plaintiff asserts a cause of action against both defendants based on his continued confinement at Rahway State Prison for almost ten months after his original conviction was overturned and while he was awaiting a second trial; plaintiff alleges that defendants should have transferred him to county jail during this period. In addition, plaintiff asserts a cause of action solely against defendant Rafferty for the latter's failure to prevent injury to plaintiff caused by fellow inmates. Getch also asserts a cause of action against Rafferty for Getch's placement in "solitary confinement" allegedly without charge. Finally, Getch alleges that Rafferty is liable to him for a pattern and practice of willful neglect.

 Defendant Rafferty now moves for summary judgment on all four counts of the complaint. For the reasons that follow, the Court grants Rafferty's motion in its entirety. *fn2"


 Based on a plea of guilty, plaintiff Getch was convicted of robbery by the Superior Court of New Jersey, Law Division, Middlesex County. After an unsuccessful attempt to withdraw the plea, Getch was sentenced on June 13, 1983, to Rahway State Prison for a term of twelve years. He began serving his sentence on that date. On July 27, 1984, the Appellate Division of the New Jersey Superior Court vacated Getch's conviction and sentence, and ordered a trial or the acceptance of another plea. *fn3" The Appellate Division's order, however, contained no provision specifying the appropriate place of Getch's confinement pending trial in the event that he was ineligible for or unable to post bail. Defendant Rafferty did not receive a copy of the Appellate Division's order. *fn4"

 Following the reversal of his conviction, Getch was unable to post bail. However, he made several efforts to secure his transfer back to the Middlesex County Jail. He alleges that he informed a sergeant and more than one lieutenant of the reversal of his conviction, although he cannot recall their names. Deposition of Anthony Getch, June 30, 1987, at 9-10 [hereinafter Getch Deposition I]. He recalls that he contacted Michael Iaria, his appointed public defender, sometime in August 1984 and expressed his desire to be transferred to the County Jail. Id. He recalls that sometime in 1984 he wrote to Superior Court Judge Nicola, the judge who sentenced him, to inform him of his attorney's lack of attention to Getch's case. Id. at 11. He further recalls seeking the assistance of prisoners who worked in the prison law library, who, in turn, contacted the East Orange Public Defender's office, the State Police, the Middlesex County Prosecutor's office, and ultimately the Newark Star-Ledger. Id. at 11-12. What Getch specifically recalls not doing is utilizing any official prison grievance procedures. Id. at 12-13. He believes other inmates contacted defendant Rafferty on his behalf, and claims that he wrote Rafferty himself, id. at 13, but his attorney has been unable to produce through discovery any evidence of this.

 At his own request, Getch met with Senior Classification Officer Lydell Sherrer on March 1, 1985 and informed Sherrer of his predicament. *fn5" Immediately after the meeting, Sherrer proceeded to the office of defendant Rafferty and informed him for the first time of Getch's situation. *fn6" That same day Rafferty sent a letter to defendant Rosenbach, an assistant Middlesex County Prosecutor, in search of assistance in securing a court order to transfer Getch from Rahway State Prison to the County Jail. *fn7" The policy of the Department of Corrections was not to release any prisoner upon an unverified copy of a judicial opinion and absent a court order. The rationale behind this policy is that while the Appellate Division could vacate one order of conviction, it has no way of knowing whether there are any other charges on which an inmate is being held. Thus Rafferty sought and awaited the order of the sentencing judge, who was in a better position to determine whether Getch should be released or transferred to a different institution. In order to procure such an order, Rafferty followed the usual Rahway practice of contacting the prosecutor's office, rather than the inmate's attorney, since the latter presumably already knew of the reversal of the inmate's conviction. *fn8" Notably, there are no Corrections Department regulations nor any New Jersey Court Rules prescribing the appropriate course of action in cases such as the instant one. *fn9"

 On March 14, 1985, having still received no order authorizing Getch's release, Rafferty directed Senior Classification Officer Sherrer to seek further assistance from an executive assistant within the Department of Corrections. *fn10" On March 22, the Department responded with a recommendation that Rafferty contact the Clerk of the Appellate Division to obtain official notification of that court's decision and to procure an order authorizing Getch's release. *fn11" Twelve days later, on April 3, 1985, Rafferty wrote to the Clerk seeking a verified copy of the opinion and an order. *fn12" The next day Getch's new attorney, Gary M. Weiss, filed a motion in the Middlesex County Superior Court seeking Getch's transfer from Rahway to the Middlesex County Jail pending trial. *fn13" Weiss made the formal motion to Judge Nicola after denial of an oral request made before Superior Court Judge Deegan at a pretrial conference. After considering this motion, Judge Nicola on May 1, 1985 signed the order authorizing Getch's transfer from Rahway to Middlesex County Jail. Rafferty did not receive a copy of the order until May 14. *fn14" That same day Getch was transferred back to Middlesex County Jail.

 In the meantime, as already noted, Getch's fellow prisoners had notified the Star-Ledger of Getch's situation. Following an interview with Getch at the prison, the Star-Ledger published an article entitled "Man Still in Prison After Conviction Reversed" in its March 10, 1985 edition. Shortly thereafter, on March 17, 1985, Getch and a fellow inmate, Kevin Coker, were involved in a fight, by virtue of which Getch claims that he was injured. Getch alleges that he was assaulted by Coker and that this assault was a direct result of the publicity caused by the newspaper article; knowing of Getch's imminent release, Coker allegedly viewed Getch as "fair game" for a robbery with impunity. *fn15" Getch alleges that Rafferty violated his duty of care to Getch in failing to protect him from Coker.

 Rafferty has countered that Getch is the one who started the fight and that the fight had nothing at all to do with the Star-Ledger article. Furthermore, Rafferty contends that, even if the article was the cause of the fight, he had no way of knowing that the article posed a threat to Getch.

 Immediately following the fight with Coker, Getch was placed in closed custody confinement for two reasons: for prehearing detention on disciplinary charges related to the incident; and for protective purposes to protect him from Coker and other inmates known as "Coker's boys." On March 20, 1985, three days after the incident, Getch was given a hearing on the disciplinary charges. He was found to have violated the disciplinary rule prohibiting inmate fighting and was given 10 days lockup time, with credit for time already served. After the 10 days elapsed on March 27, and until his release from the prison on May 14, 1985, Getch remained in administrative custody for protective purposes.

 After his transfer from Rahway and following his trial and conviction on the robbery charges, Getch was returned to Rahway State Prison on September 16, 1985. He was again placed in closed custody confinement and held there until October 29, 1985, at which time he was released into the general prison population. Getch alleges that Rafferty acted intentionally and maliciously in so confining Getch during that period. Rafferty counters that closed custody confinement was necessary for protective purposes until prison officials could determine whether the threat to Getch's safety that existed before May 14, 1985 was still extant.


 Getch's cause of action against Rafferty is based on 42 U.S.C. § 1983. That statute provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . 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.

 In all four counts of his amended complaint, Getch alleges that the "rights, privileges, or immunities" of which he was deprived are those created by the Fourteenth Amendment, which provides in part that "no State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV § 1. He also alleges a deprivation of his Eighth Amendment rights to be free from cruel and unusual punishment.

 I. Getch's Continued Confinement at Rahway State Prison

 In the first count of his amended complaint, Getch alleges that Rafferty violated his liberty interests without due process of law when Rafferty continued to confine Getch at Rahway State Prison for eight and one-half months after Getch's original conviction was overturned. In order to prevail in this argument, Getch must first establish the existence of a valid liberty interest in not being incarcerated at the state prison.

 The liberty interests protected by the Fourteenth Amendment arise from two sources: the Due Process Clause itself and the laws of the States. Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 868-69, 74 L. Ed. 2d 675 (1983). It is well established that a convicted inmate has no liberty interest under the Due Process Clause in being incarcerated at any particular institution. Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976); Gibson v. Lynch, 652 F.2d 348, 354 (3d Cir. 1981); Dozier v. Hilton, 507 F. Supp. 1299, 1306 (D.N.J. 1981). After his original conviction was overturned, Getch acquired the status of a pretrial detainee. To the Court's knowledge, no case has yet decided whether a pretrial detainee has any such right arising from the Due Process Clause. *fn16" However, in opposition to the instant motion, and to a recent motion by defendant Rosenbach, *fn17" Getch has made no argument that he had a liberty interest arising directly under the Due Process Clause itself. The Court interprets Getch's silence in this regard as a concession that he had no such interest. *fn18"

  What Getch does allege is that he had a liberty interest based on Executive Order 106 issued by the Governor of New Jersey. In a prior opinion in this action, *fn19" Judge Sarokin ruled that Getch had such a liberty interest based on the Executive Order. Because this Court is not bound by that determination, the Court will reexamine the issue of whether the Executive Order created a liberty interest in plaintiff Getch.

 (A) Whether Pretrial Detainees in General Have a Liberty Interest Under Executive Order 106

 Executive Order 106 is a temporary emergency order that was enacted by the Governor in 1981 in response to severe overcrowding in state prisons. *fn20" The Governor found that a state of emergency existed as a result of the overcrowding, and that "these unusual conditions endanger the safety, welfare and resources of the residents of this State, and threaten loss to and destruction of property." Suspending the operation of N.J.S.A. 2C:43-10(e), *fn21" the Governor invoked his emergency powers under the New Jersey Disaster Control Act, N.J.S.A. App. A:9-30 et seq., and vested in the Commissioner of the Department of Corrections the authority to allocate the place of confinement of prisoners. The Order provides in part:

3. I hereby DIRECT that the authority to designate the place of confinement of all inmates confined in all State and/or County penal or correctional institutions shall be exercised . . . by the designee of the Governor.
4. I hereby designate the Commissioner of the Department of Corrections to effectuate the provisions of this Order.
5. The Commissioner may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether owned by the State [or] a County, . . . for the confinement of inmates confined in the State and/or County penal or correctional institutions.
* * * *
8. I further ORDER that the authority of the Commissioner to designate the place of confinement of any inmate may be exercised when deemed appropriate by the Commissioner regardless of whether said inmate has been sentenced or is being held in pretrial detention, except that only persons sentenced to a prison or committed to the custody of the Commissioner may be confined in a State Prison.

 Plaintiff alleges that Paragraph 8 of the Order created a liberty interest in him in providing that "only persons sentenced to a prison or committed to the custody of the ...

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