state's statutes, executive orders, or administrative regulations.
Compounding the problem of a paucity of case law are the ambiguities of the Executive Order itself. As noted in Part I(B), supra, para. 8 of the Order is not a paragon of clarity. One clause in the paragraph speaks of pretrial detainees; the next clause refers to persons "committed to the custody of the Commissioner." Although it is possible that the Governor was using these terms as opposites, it is even more probable that he envisioned some overlap, as noted in Part I(B). Since the Court itself has experienced some difficulty ascertaining the import of para. 8, Rafferty cannot be expected to have divined its meaning.
Rafferty found himself in a position similar to that of the defendant Nuclear Regulatory Commissioners in People of Three Mile Island, supra, who issued an order modifying a nuclear operating license without holding a hearing. Although subsequent litigation resulted in a ruling that the Commissioners should have held a hearing, the Third Circuit held that defendants were entitled to qualified immunity from suit because the requirement of a hearing was not clearly established at the time of the Commissioners' actions. 747 F.2d at 147-49. Noting that the applicable statute was not clear on its face, the Third Circuit placed particular emphasis on the lack of judicial opinions on the subject. See id. at 148 & 149. In arguing that his putative rights were clearly established, Getch focuses on the text of the Order alone and ridicules the importance of Rafferty's assertion that there were no judicial opinions interpreting the Order in a similar factual context at the time in question. In so doing, Getch misconstrues the meaning of "clearly established rights." As noted above, since introducing the objective prong of qualified immunity in Procunier, and singling it out in Harlow, the Supreme Court has always assumed that the state of the law would be evaluated with reference to judicial opinions. The only debated issues have been (1) the effect of conflicting legal authority and (2) how closely on point the relevant judicial opinions must be. In the instant case, Getch has not cited a single judicial opinion even arguably on point before the prior determination by Judge Sarokin in this case, which was, of course, issued after the events in question herein. Getch relies solely on the words of the Order as if it were a talisman. Not having had the benefit of case law from which to glean the amulet's elusive meaning, however, Rafferty is immune from its effect.
In sum, upon learning of Getch's situation, Rafferty was presented with a novel problem for which he could not find adequate guidance in case law or other legal authority. It was precisely to protect officials like Rafferty in such situations that the Supreme Court developed the doctrine of qualified immunity in the first place. "Where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.'" Harlow, 457 U.S. at 819, 102 S. Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 18 L. Ed. 2d 288, 87 S. Ct. 1213, 1217 (1967)).
II. Injury to Getch During His Confinement at Rahway
Getch's second cause of action against defendant Rafferty is for the latter's failure to protect Getch from injuries he sustained on March 17, 1985 as a result of an altercation with another inmate. Following publication of the March 10 Star-Ledger article, Getch alleges, Rafferty knew or should have known of the imminency of harm to Getch. Rafferty has moved for summary judgment on this second count of the complaint as well.
The Court notes initially that Getch has alleged a valid liberty interest under the Fourteenth Amendment in being free from attack by other inmates. The Supreme Court has held that "the right to personal security constitutes a 'historic liberty interest' protected substantively by the Due Process Clause. And that right is not extinguished by lawful confinement . . . ." Youngberg v. Romeo, 457 U.S. 307, 315, 102 S. Ct. 2452, 2458, 73 L. Ed. 2d 28 (1982) (citation omitted).
The principal argument advanced by Rafferty in support of his motion for summary judgment on this count is Getch's inability to prove the requisite state of mind.
As discussed in Part I(D), supra, the Supreme Court has held that only intentional conduct can "deprive" a person of rights under the Due Process Clause of the Fourteenth Amendment; negligent conduct does not amount to a violation. Daniels, 474 U.S. at 330-31, 106 S. Ct. at 665-66; Davidson v. Cannon, 474 U.S. at 347, 106 S. Ct. at 670-71. Rafferty argues that Getch has failed to proffer sufficient evidence from which a reasonable jury could find that Rafferty intentionally subjected Getch to the injuries caused by Getch's fight with the other inmate. The Court agrees.
Getch's cause of action sounds in negligence. The second count of the complaint alleges a breach of the duty of care on the part of Rafferty. See Amended Complaint para. 27. The only reference to any conduct beyond negligence is an allegation that Rafferty acted with "deliberate indifference" to plaintiff's safety. Id. para. 28. At best Getch appears to be alleging a state of mind somewhere between negligence and intentional conduct. Notably, the Supreme Court in Daniels declined to decide whether such intermediate states of mind can violate the Due Process Clause. See 474 U.S. at 334 n.3, 106 S. Ct. at 667 n.3. However, as already discussed in supra Part I(D), the Third Circuit has apparently resolved this issue in Getch's favor in its opinion in Davidson, which was affirmed by the Supreme Court. See Davidson, 752 F.2d at 828. Nevertheless, Rafferty is entitled to summary judgment on Count II because Getch has failed to meet his burden of production in opposition to Rafferty's motion.
As noted above, a litigant may not survive a motion for summary judgment merely by alleging that there is a genuine issue of material fact; rather, the opponent of a summary judgment motion must come forth with sufficient evidence from which a reasonable factfinder could resolve the issue in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). In opposing this motion, Getch has failed to present sufficient evidence from which a reasonable jury could find that Rafferty acted with deliberate indifference. Getch has established that an article appeared in the Star-Ledger on March 10, 1985 describing Getch's plight. He has alleged that the publicity surrounding the article's publication led other inmates to "scorn" him, and led ultimately to his injuries. See Amended Complaint para. 25. Getch alleges that Rafferty "knew or should have known that Getch was in imminent danger of harm after his situation was published" since "it is a well-known fact that inmates who are about to be released are potential victims of assault and robbery." Plaintiff's Opposition Memorandum, at 20-21. With regard to the latter hypothesis, the Court notes that even if it were true, it would not be applicable since the Star-Ledger article merely reported Getch's situation and his attempts to be transferred; it did not report that his release was imminent (as indeed it was not). Moreover, Rafferty disputes the assertion that the publicized imminency of a prisoner's release subjects him to potential attack by fellow inmates. Of course, such conflicting theories give rise to a jury question, but only as to negligence. Getch's allegations are insufficient as a matter of law to prove "deliberate indifference" or intentional deprivation.
The Supreme Court's opinion in Davidson directly supports this conclusion, since the facts in that case were similar to those in the instant case and even more favorable to plaintiff there. In Davidson, a prisoner wrote a note to the assistant superintendent of the prison (one Cannon), reporting that another inmate had threatened to harm him. Cannon read the note, but did not think the situation urgent since the prisoner had not contacted him directly. Cannon then sent the note to a corrections sergeant (one James), who left the note on his desk unread. Two days later, the prisoner was seriously wounded in an attack by the other inmate. 474 U.S. at 345-46, 106 S. Ct. at 669. Though not disturbing the trial court's ruling that defendants had been negligent, the Supreme Court held that the conduct of the two prison officials, as a matter of law, did not violate the Due Process Clause of the Fourteenth Amendment. Id. at 347-48, 106 S. Ct. at 670. The Court held:
Respondents' lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent. Far from abusing governmental power, or employing it as an instrument of oppression, respondent Cannon mistakenly believed that the situation was not particularly serious, and respondent James simply forgot about the note. The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials.
Davidson is quite similar factually to the case at bar. The note to prison officials in Davidson is analogous to the Star-Ledger article here.
Cannon represents Rafferty if he knew of the article; James represents Rafferty if he did not. Either way, Rafferty's conduct, as a matter of law, could not have amounted to more than negligence.
Therefore Getch has failed to proffer sufficient evidence to prove that Rafferty "deprived" him of his Fourteenth Amendment liberty interests, and his cause of action must fail.
III. Getch's Classification at Rahway
In his third cause of action against defendant Rafferty, Getch alleges that Rafferty violated his liberty interests by placing and keeping Getch in closed custody confinement during two separate periods: March 17, 1985 to May 14, 1985; and September 16, 1985 to October 29, 1985. Getch alleges that Rafferty's acts were knowing, intentional and malicious. Rafferty responds that he had valid reasons for so detaining Getch throughout both periods.
The liberty interests of which Getch alleges he was deprived are those arising under the Due Process Clause of the Fourteenth Amendment and under the Eighth Amendment. In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), the Supreme Court held that a prisoner does not have a liberty interest in being confined among the general population of the prison, rather than the admittedly "austere and restrictive" quarters of closed custody confinement. Id. at 466-67, 103 S. Ct. at 869. There, as here, closed custody confinement
subsumed several different custodial purposes: to protect the inmate's safety, to protect other inmates from the inmate, to break up groups of potentially disruptive inmates, or simply to await further classification or transfer. Id. at 468, 103 S. Ct. at 869-70. The Court held:
It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. . . . Accordingly, [closed custody confinement] is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.
As discussed in Parts I(D) and II, supra, the Supreme Court has held that only intentional deprivations of constitutional rights can violate the Due Process Clause of the Fourteenth Amendment and thus give rise to liability under 42 U.S.C. § 1983. Daniels, 474 U.S. at 330-31, 106 S. Ct. at 665-66; Davidson v. Cannon, 474 U.S. at 347, 106 S. Ct. at 670-71. In the wake of Daniels and Davidson, as already noted, the Third Circuit gave a liberal interpretation to intent as it applies to keeping an inmate in administrative custody. Sourbeer, 791 F.2d at 1105. The court in Sourbeer held that the mere keeping of an inmate in administrative custody is an intentional act and deprives the inmate of liberty. Id. Under Sourbeer, Getch has established the requisite state of mind with respect to Count III of his complaint.
As noted by defendant in the instant case, Getch was placed in closed custody confinement for different purposes during different times. Accordingly, the Court must examine each period of Getch's closed custody confinement in order to determine whether he had a liberty interest during that period, and eventually to determine whether he was given all the process to which he was entitled.
Getch was originally placed in closed custody confinement on March 17, 1985, the day he was involved in the fight with fellow inmate Coker. From that date until March 20, 1985, there were two reasons for Getch's closed custody confinement: pre-hearing detention preceding an administrative hearing on charges stemming from the fight with Coker; and protective custody to protect Getch from Coker and "Coker's boys."
Under Hewitt, because this confinement was nonpunitive in purpose, it did not implicate any liberty interest of Getch's. A mere three days later, on March 20, 1985, Getch was given a hearing on the disciplinary charge. At the hearing, Getch admitted his guilt to the charges (fighting with another inmate, namely, Coker), but explained that he was justified in starting the fight because Coker had stolen cigarettes from him. Getch received ten days lockup time for his violation of the disciplinary rule prohibiting inmate fighting.
With credit for the three days already served, Getch was confined in administrative segregation for punitive purposes until March 27, 1985. It is important to note that at the hearing on the disciplinary charge, Getch was allowed to be heard and was represented by an "inmate substitute."
Thus Getch received the process to which he was entitled before being confined for punitive purposes from March 20, 1985 to March 27, 1985.
As noted, Getch remained in closed custody confinement after March 27th and until May 14, 1985, when he was transferred from Rahway State Prison. His confinement during that period, however, was not for punitive purposes. Rather, it was for protective custody. Ironically, the inmate himself requested to be held in protective custody for the duration of his incarceration at Rahway. That request came at a March 28, 1985 administrative hearing concerning Getch's continued protective custody status. Waiving the procedural rights to which he was entitled at that hearing, Getch told Hearing Officer Vito Casarella that he wanted to remain in protective custody because of the danger that he perceived from Coker and "Coker's boys."
From March 28 to May 14, 1985, therefore, Getch was in protective custody voluntarily. His confinement there was for protective rather than punitive purposes. Even though Getch had no liberty interest in being free from such confinement, to the extent that he did, he waived it; alternatively, he received all the process to which he was entitled.
Upon his return to Rahway State Prison on September 16, 1985, Getch was once again placed in closed custody confinement. According to defendant Rafferty, Getch received this classification because it was the classification that he had been in upon leaving Rahway; to protect Getch from any possible continuing threat, prudence required that he be placed in protective custody until a hearing could be held to determine whether any threat to his safety remained.
Nine days later, on September 25, 1985, an interoffice memorandum concluded that protective custody for Getch was no longer necessary because inmate Coker was no longer being held in Rahway State Prison.
Not until October 29, 1985 was Getch finally released from protective custody and placed in the general prison population.
Rafferty offers a sketchy explanation for why it took from September 25, the date of the internal prison memorandum, to October 29, to release plaintiff Getch from protective custody. The only justification that Rafferty can offer for this delay is that the September 25 memorandum did not address the location and status of the other inmates known as "Coker's boys." Rafferty explains that further "administrative consideration" was required to ascertain their status and whether they posed a threat to Getch.
As in Sourbeer, 791 F.2d at 1100, the Court determines that, although it is a close question, this delay did not rise to the level of a due process violation. In light of the events underlying Count II of Getch's complaint, in which Getch alleges that Rafferty failed to take adequate measures to protect him from another inmate, it was certainly preferable that Getch be confined in protective custody for too long rather than too short a time period. See also Mims v. Shapp, 744 F.2d 946, 954 (3d Cir. 1984).
In sum, it is only in the period from March 20 to March 27, 1985, that Getch had a liberty interest in not being confined in closed custody confinement, because it is only during that period that his detention was for punitive purposes. See Hewitt, supra. For the other periods in question, Getch's closed custody confinement implicated no liberty interests because he was not being held for punitive purposes, but rather for protective purposes. Id. Even if Getch did have a liberty interest during those other periods, his Fourteenth Amendment rights were not violated because he received all the process to which he was entitled.
IV. Alleged Pattern of Gross and Willful Neglect
In Count IV of his amended complaint, plaintiff Getch alleges that defendant Rafferty is guilty of a "pattern of gross and willful neglect." In light of the Court's rulings on the first three counts of Getch's complaint, this cause of action must fail.
V. Eighth Amendment Claims
In each of the four counts of his amended complaint, Getch alleges a violation of his Eighth Amendment rights to be free of cruel and unusual punishment. With respect to Count I of his complaint, Getch has cited no authority for the proposition that incarceration of a pretrial detainee in a state prison rather than a county jail amounts to cruel and unusual punishment. Although the Eighth Amendment "proscribes more than physically barbarous punishments," the Amendment extends only so far as to prohibit the "unnecessary and wanton infliction of pain" and in general any conduct that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958)). The incarceration of a pretrial detainee in a state prison simply does not amount to cruel and unusual punishment. As already noted, there may have been a slightly greater danger of injury in a state institution than in a county jail, but this difference was only slight. Moreover, state prisons are arguably more desirable places of incarceration than county jails in that they generally have superior educational, recreational and rehabilitative facilities. It would serve only to trivialize the importance of the Eighth Amendment to hold that it is implicated under these facts. Cf. Daniels, 474 U.S. at 332, 106 S. Ct. at 665 (prohibiting the Due Process Clause from being similarly trivialized).
With respect to Count II of Getch's complaint, the Eighth Amendment is implicated since subjecting a prisoner to violence by other prisoners can amount to cruel and unusual punishment. E.g., Little v. Walker, 552 F.2d 193, 197 (7th Cir. 1977), cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 530 (1978); Scittarelli v. Manson, 447 F. Supp. 279, 284 (D. Conn. 1978). However, there can only be an Eighth Amendment violation if the prisoner was so subjected either intentionally or as a result of "deliberate indifference." See Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292; Little, 552 F.2d at 197; Scittarelli, 447 F. Supp. at 284. As already discussed in supra Part II, there was no intent nor deliberate indifference as a matter of law.
As for Count III, the Eighth Amendment is not implicated by the holding of a prisoner in protective custody simply because such a measure is nonpunitive by definition. If it is not punishment, it cannot amount to cruel and unusual punishment. Cf. Hutto v. Finney, 437 U.S. 678, 685, 98 S. Ct. 2565, 2570-71, 57 L. Ed. 2d 522 (1978).
Finally, there is no valid Eighth Amendment claim under Count IV since that cause of action is merely a conglomeration of three claims wherein there have been no Eighth Amendment violations.
For the reasons set forth above, defendant Rafferty's motion for summary judgment is granted in its entirety.
An appropriate order is attached.
This Motion for Summary Judgment having been filed by defendant John Rafferty, and after having considered the submissions of the parties, the Court having determined that there does not exist a genuine issue of material fact and that defendant Rafferty is entitled to a judgment in his favor as a matter of law, and for good cause shown;
IT IS on this 5th day of December 1988
ORDERED that the Motion by John Rafferty seeking Summary Judgment in his favor should be and is granted.