Full opinion text
SUR PLEADINGS AND PROOF LUONGO, District Judge. This action under the Civil Rights Act of 1871 was instituted by Stanley B. Hoss to redress alleged deprivations of his civil rights during his confinement at the State Correctional Institution at Graterford. Hoss contends that he has been subjected to cruel and unusual punishment and deprived of liberty without due process of law. The case was tried to the Court, sitting at Graterford, on June 1, 1976. Since that time, the parties have unsuccessfully attempted to settle the case. In addition, decision has been deferred to allow completion of psychiatric evaluations of Hoss which were conducted pursuant to an order of this Court. In the interim, counsel have supplemented the record with various documents. Now that the record is complete, I make the following FINDINGS OF FACT A. The Parties 1. Plaintiff is Stanley Barton Hoss, an inmate of the State Correctional Institution at Graterford, Pennsylvania (SCI Grater-ford), who is confined to that institution’s Behavior Adjustment Unit (BAU). 2. Defendant Julius T. Cuyler is the Superintendent of SCI Graterford. 3. Defendant Robert N. Mauger is one of the two majors of the guard at SCI Graterford. From October 1975 to May 1976 he served as acting Deputy Superintendent for Operations at the institution, replacing Deputy Superintendent T. J. Meisberger, who was on sick leave. 4. Defendant Daniel T. Sims is the Deputy Superintendent for Treatment Services at SCI Graterford. 5. Defendant Lawrence Reid is Director of Treatment Services at SCI Graterford. 6. Defendant William B. Robinson is the Pennsylvania Commissioner of Correction. B. Description of Hoss 7. Hoss was born March 1, 1943. 8. To keep in good physical condition, Hoss practices a demanding daily physical fitness regimen, including 1000 push-ups, 600 “dips,” 600 sit-ups, and karate exercises. To develop his hands, he hits the cement wall of his cell daily. 9. According to the testimony and medical reports of psychiatrists, Hoss is not psychotic, although he does have a personality disorder known as “passive-aggressive personality.” The term “passive-aggressive personality” was not defined at trial; Stedman’s Medical Dictionary (4th unabr. lawyers’ ed. 1976) defines it as follows on page 1061: “a personality disorder in which aggressive feelings are manifested in passive ways, especially through mild obstructionism and stubbornness.” The SCI Graterford staff psychiatrist described Hoss’ personality as “severely passive-aggressive or explosive.” 10. Hoss is Caucasian. He frequently uses the epithet “nigger” in referring disparagingly to other persons. At trial, he explained that he does not use this word in a racial sense as a label for black persons; instead, he uses it as a derogatory name for any person — black or white — who does not treat him fairly or with respect. C. History of Hoss’ Incarceration Prior to His Transfer to SCI Graterford 11. On March 9,1970, Hoss was convicted of first degree murder in the Court of Common Pleas of Allegheny County, Pennsylvania, and was sentenced to death. On October 25, 1972, the death sentence was vacated and Hoss was sentenced to life imprisonment. 12. Until 1973, Hoss was incarcerated at the State Correctional Institution at Pittsburgh (SCI Pittsburgh). 13. On August 16, 1972, Hoss was implicated in the stabbing of a black inmate, Eugene Spruill, at SCI Pittsburgh. Immediately prior to the stabbing, Hoss had been in a “pre-release range” of the prison where he worked in the prison laundry and was locked up only from 3:00 p. m. to 6:00 a. m. As a result of the stabbing he was placed in SCI Pittsburgh’s BAU, where he did not have these privileges. 14. On September 10, 1972, SCI Pittsburgh officials found Hoss guilty of misconduct in refusing to move to another cell and in threatening an officer. 15. On December 10, 1973, Hoss (who was confined to the BAU) and other SCI Pittsburgh inmates assaulted and killed Walter Peterson, a black prison guard.: For that slaying, Hoss was convicted on June 13, 1974 of second degree murder in the Court of Common Pleas of Allegheny County, Pennsylvania, and was sentenced to a further prison term of ten to twenty years. 16. Two days after the killing of Peterson, Hoss was transferred to the State Correctional Institution at Huntingdon (SCI Huntingdon), where he was kept for the duration of the Peterson murder trial. After that trial, on June 19, 1974, Hoss was transferred from SCI Huntingdon to SCI Graterford. Throughout the period of his incarceration at SCI Huntingdon, Hoss was held in that prison’s BAU. D. Description of SCI Graterford and its Procedural Regulations 17. SCI Graterford is a part of the Pennsylvania prison system. It is under the supervision, management, and control of a board of trustees, a departmental administrative board within the Pennsylvania Department of Justice, and of the Bureau of Correction, a part of the Department of Justice headed by the Commissioner of Correction. 18. At the time of trial, the inmate population of SCI Graterford was 1725, of which only about 200 were white. Although these figures are constantly changing, the ratio of black to white inmates at SCI Graterford remains high. 19. At the time of trial, SCI Graterford had 279 correctional officers, including guards. The guards work eight hour shifts and are divided into nine squads; two squads work during each shift. 20. Some of the administrative personnel at SCI Graterford, including defendants Cuyler, Sims, and Reid, are black. 21. The chief administrative officer at SCI Graterford is the superintendent. From the time of Hoss’ arrival at SCI Graterford in June 1974 to the date of trial, the institution had three superintendents — Robert L. Johnson, who left a few days after Hoss’ arrival; Ronald Marks, who served from the time Johnson left until early 1975; and defendant Cuyler, who became superintendent in early 1975. 22. SCI Graterford is administered in accordance with administrative regulations issued by the Commissioner of Correction, including Bureau of Correction Administrative Directive No. 801, which deals with prison disciplinary procedures and restricted housing categories. That Directive became effective on June 1, 1974 and was amended in several significant respects on February 12,1977. As amended, ¶ 1 of the Directive [to be codified at 37 Pa.Code § 95.101] sets forth its “Scope and Purpose” as follows: “Institutional life shall be governed by standards of behavior designed to promote correctional objectives and to maintain the general welfare of the institutional community. The laws of this Commonwealth and the rules and regulations of the Bureau of Correction and of the institution are a part of the standards of behavior governing each institution. Behavior which deviates from such standards shall be handled by staff in the manner prescribed by this directive. Such behavior shall be evaluated within the context of the total treatment plan of the individuals, the effect of such behavior upon others and its consequences for the good order of the entire institution. The methods used by staff shall be for the purpose of bringing about voluntary compliance with the standards prescribed. Sanctions shall be imposed only when necessary and in the degree necessary to regulate the unacceptable behavior.” 23. Administrative Directive No. 801 sets forth a fairly comprehensive procedure for the handling of prisoners’ misconducts. It provides that “expectations and prohibitions” applicable to inmates of all institutions under the Bureau of Correction’s supervision are to be defined by administrative directives issued by the Attorney General and Commissioner of Correction and by regulations comporting with these directives issued by the superintendent of each institution upon approval of the Commissioner of Correction. (¶ II.A. [§ 95.102]) It provides guidelines for the classification of misconducts into two categories — “major” or “class 1” (ranging from murder to refusal to obey an order and repeated violations of minor misconduct prohibitions) and “minor” or “class 2” (ranging from simple assault or “body punching” to tatooing and failure to report for work). (¶ II.B. [§ 95.-102.1]) As amended, the Directive provides that all misconduct charges must be heard by a Hearing Committee consisting of a major or captain of the guard (the committee chairman), a casework supervisor, and a school or vocational supervisor. Inmates charged with misconduct are entitled to written notice, a hearing, an explanation of the committee’s decision during a personal appearance of the inmate before it, and formal review by another body known as the Program Review Committee. (Amended Directive, ¶ III [§ 95.103]) The original version of the Directive mandated similar procedures, except that it provided for somewhat less formal disposition of minor misconduct charges (original Directive, ¶ III.D.). 24. Administrative Directive No. 801 authorizes a variety of disciplinary measures for dealing with prisoners’ misconducts. For major misconducts, one of the actions authorized is a change of the prisoner’s housing from that used for the general prison population — i. e., those inmates “who do not require special physical measures for the control of behavior” (original Directive ¶ V.A.) — to a more restricted housing area. (Original Directive, ¶ III.H.5; amended Directive, ¶ III.F. second 3. [§ 95.103(f) (second 3)]) The original version of the Directive authorizes two restrictive housing categories for such use: “Administrative Custody” and the “Behavior Adjustment Unit” (BAU); as amended, it authorizes “placement in Close or Maximum Disciplinary Custody.” The amended Directive provides that placement in disciplinary custody “will have a specified maximum duration for each misconduct not to exceed six months.” 25. In addition to authorizing use of the more restrictive housing categories to discipline prisoners who committed misconducts, Administrative Directive No. 801 authorizes use of restrictive housing for behavioral control in situations in which a hearing has not been held. Paragraph IV.B. of the original Directive provided: “1. A resident who has allegedly committed a major misconduct shall be placed in the Behavior Adjustment Unit upon approval of the officer in charge of the institution pending application of procedures under Paragraph III [specifying procedures for dealing with prisoners’ misconduct]. 2. A resident who has allegedly committed a minor misconduct may be confined as follows: a. Depending upon the situation, and the need for control, a resident may immediately be removed from his job, restricted in activities and/or confined to his own cell upon approval of the officer in charge of the institution pending the application of procedures under Paragraph III. b. A resident who poses a clear and present danger to himself, others, or property, may be placed in Administrative Custody or the Behavior Adjustment Unit on a temporary basis upon approval of the officer in charge of the institution pending the application of procedures under Paragraph III or until such time as he can be safely removed. 3. A resident may be temporarily confined to any of the above units in an investigative status upon approval of the officer in charge of the institution where it has been determined there is a threat of a serious disturbance or a serious threat to the individual or others. An investigation shall begin immediately to determine whether or not a behavior violation has occurred. 4. If the above conditions do not exist, the resident shall not be so confined unless such confinement is determined by the disposition of the case in accordance with Paragraph III.” Clauses 1. and 2.a. of the paragraph have been included in ¶ IV.B. of the amended Directive [§ 95.104(b)] with the one significant change that “Close or Maximum Administrative Custody” has been substituted for “Behavior Adjustment Unit.” As amended, the paragraph does not contain clause 2.b. and has the following revised clauses 3. and 4.: “3. An inmate may be temporarily confined to either of the above units in an investigative status upon approval of the officer in charge of the institution where it has been determined there is a threat of a serious disturbance, or a serious threat to the individual or others. The inmate shall be notified in writing as soon as possible that he is under investigation and that he will receive a hearing if any disciplinary action is being considered after the investigation is completed. An investigation shall begin immediately to determine whether or not a behavior violation has occurred. If no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abated but in all cases within ten (10) days. 4. An inmate who requests self-confinement may be placed in Close or Maximum Administrative Custody upon approval of the officer in charge of the institution pending review by the Program Review Committee. The Program Review Committee shall document the request by the inmate as well as the reasons for the request and shall determine whether Close or Maximum Administrative Custody is warranted by a review of the reasons and whether continuing confinement is justified or whether a transfer should be recommended.” 26. The general prison population at SCI Graterford is housed in five cell blocks of 400 cells each. The population of each cell block ranges from 360 to 290. Five correctional officers are assigned to each cell block. 27. The original version of Administrative Directive No. 801, ¶ V.B., described authorized use of the “Administrative Custody” housing category as follows: “for residents requiring closer supervision or protection than is provided in the general population and for temporary assignment of residents pending further classification.” This housing category was only slightly more restrictive than that used for the general prison population, and ¶ VI.A.l. of the original Directive specified that residents in it would “have all rights and privileges accorded the general population except for curtailment of freedom to move about the institution and engage in programs with the general population.” At SCI Grater-ford, prisoners in this housing category have been housed in “B Gallery” a group of fifty cells on the second tier of the “B” cell block. Most of the B Gallery residents have been placed there for reasons of their own protection rather than for prison security. B Gallery residents have been allowed to mingle with each other during meals, exercise periods, and other times throughout the day. 28. The original version of Administrative Directive No. 801, ¶ Y.C., described authorized use of the BAU as follows: “for residents found by the Hearing Committee/Program Review Committee in accordance with the procedures established in this directive to have committed major misconducts and/or for residents who require close custody for the protection of themselves and others as provided under IV.B.” The BAU was the most restrictive housing category for those prisoners not subject to confinement in Psychiatric Quarters. Paragraph VLB. of the original Directive imposed the following requirements with regard to the BAU: “The Behavior Adjustment Unit shall be in a separate cell-block or building of the institution providing close custody. 1. The purpose of placing a resident in this unit shall be to closely supervise, control and treat problematic behavior of a serious nature. 2. Residents confined thereto shall have all the rights and privileges accorded the general population except for freedom to move about the institution, to engage in programs with the general population, or the use of individual radios and televisions. However, the use of the latter items may be permitted with the express approval of the Hearing Committee/Program Review Committee. Any privilege may be curtailed at the express discretion of the Hearing Committee/Program Review Committee.” At SCI Graterford, the BAU is a separate building located at a distance of three or four city blocks from the main prison building. The BAU has a capacity to house 39 prisoners, but the most ever kept there is 34, and at the time of trial only 22 or 23 prisoners were housed there. BAU residents are kept segregated from each other and are confined to their own cells throughout the day except for a daily period of recreation outside the cells and an opportunity to use the showers, which are in a separate section of the BAU. The cells are eight feet wide, ten feet long, and nine feet high. In accordance with the discretion allowed by ¶ VI.B.2. of the original version of Administrative Directive No. 801, the residents have had access to a radio. At the time of trial, they did not have access to a television because of insufficient electricity in the BAU building, but since then the prison has installed electrical facilities for television in the part of the BAU in which Hoss is housed. BAU residents are allowed a maximum of three visits per month, and each visit may last no longer than one hour. The BAU residents are under close supervision of prison correctional officers; four officers are stationed in the BAU from 6:00 a. m. to 6:00 p. m., and two officers are stationed there from 6:00 p. m. to 6:00 a. m. Because the BAU provides isolation from other inmates, some SCI Graterford prisoners have requested BAU confinement for self protection. 29. The original version of Administrative Directive No. 801 authorized use of Administrative Custody and the BAU for both administrative and disciplinary reasons. The 1977 amendments changed the terminology applied to the restrictive housing categories, authorizing the establishment of “Administrative Custody” and “Disciplinary Custody,” each of which is to contain two confinement levels, “close” and “maximum.” (Amended Directive ¶ Y [§ 95.106]) 30. The amended version of Administrative Directive No. 801, ¶ V.A. [§ 95.106(1)], describes authorized use of the “Administrative Custody” housing category in the same manner as that in ¶ V.B. of the original Directive. Unlike the original Directive, however, the amended version does not authorize use of Administrative Custody as a disciplinary measure. Paragraph VI.A. of the amended Directive [§ 95.107 (a)] provides, in part: “1. The purpose of placing an inmate in this unit shall be to maintain the safety of the institution by segregating an individual who poses a threat to other inmates, to staff or to himself, poses an escape risk or needs protection from other inmates. The decision to place an inmate in this custody must comply with [paragraphs] III.G.4., IV.B.l., IV.B.3., or IV.B.4. . . . 2. The inmates therein shall have all the rights and privileges accorded to the general population except for freedom to move about the institution, freedom to engage in programs with the general population, the use of civilian clothing, and the use of items specifically found by the Program Review Committee to be a security hazard. The use of personal radios and televisions may be permitted with the express approval of the Program Review Committee. All other personal property which is permitted in general population will be permitted in Administrative Custody.” The paragraph also authorizes institution of “a limited release program from Close Administrative Custody as a gradual process to return to general population status.” (Amended Directive, ¶ VI.A.4. [§ 95.-107(a)(4)]) 31. Paragraph V.B. of the amended Directive [§ 95.106(2)] authorizes use of Disciplinary Custody “for inmates found by the Hearing Committee to have committed Class 1 [major] Misconducts.” Paragraph VI.B. [§ 95.107(b)] provides: “Disciplinary Custody housing . will be specified groups of cells in a designated section or sections of the institution as the physical plant permits. 1. The purpose of placing an inmate in this unit shall be to supervise and control serious disciplinary problems. 2. Inmates confined therein shall not be permitted freedom to move about the institution or to engage in programs with the general population. Inmates in this confinement will be permitted those items, or use of those items, necessary to maintain an adequate level of personal hygiene as well as a reasonable amount of personal legal materials and correspondence. Inmates in this unit will also be permitted to visit with their approved visitors consistent with institutional and Bureau regulations, to correspond consistent with Bureau Directives and will be issued those items not already possessed by the inmate necessary to maintain personal hygiene, to correspond and prepare personal legal documents; also three cigarettes or their equivalent per day if requested. Any privilege may be curtailed at the express decision of the Hearing Committee after a Hearing.” 32. The distinction between administrative and disciplinary custody recognized by the amended version of Administrative Directive No. 801 corresponds to a similar distinction between “Administrative Segregation” and “Punitive Segregation” in July 1972 rules and regulations published by SCI Graterford [Ex. P-2]. Paragraph I of the rules describes “Administrative Segregation” as follows: “This is reserved for individuals who cannot immediately be placed in the general population — or will not conform to the normal routine of the institution and require more than the usual amount of custody and supervision over an indefinite period of time.” Assignments to administrative segregation are to be made by “the Behavior Clinic, Treatment Staff, Superintendent, Deputy Superintendent, Major of the Guard, or, in his absence, the Officer-in-Charge”; provision is also made for the prisoner to request administrative segregation. (¶ I.B.2) Residents in administrative segregation are to be housed “[wjhere possible, separate from [those in] punitive segregation.” (¶ I.B.l.) The rules do not define “Punitive Segregation.” They provide for assignment to that category as follows: “Assignment to punitive segregation will be recommended by the Behavior Clinic and will have the approval of the Superintendent. Pending action of the Behavior Clinic, assignment will be made only by the Superintendent, Deputy, Major or Officer in Charge of the Institution.” (¶ I-C.2.) Residents in punitive segregation are to be housed “[i]n a separate section of [the Maximum Security Cell Block], specifically designed for the housing of disciplinary cases.” (¶ I.C.l.) They are subject to much greater restrictions than residents in administrative segregation. The rules provide for review of the cases of residents in both administrative and punitive segregation by the “Behavior Clinic” at least every thirty days. 33. Paragraph V of the amended version of Administrative Directive No. 801 [§ 95.-106] provides that housing in Administrative and Disciplinary Custody shall be divided into “close” and “maximum” classes. In each case, “maximum” custody is described as “housing in the most secure facilities available in the institution”; it “includes the most intensive scrutiny of all matters pertaining to security and the most restrictive regulation of inmate mobility.” The paragraph states that “close” custody “involves housing in more secure facilities than those used for general population and restricted mobility”, although “[t]he degree of security and restriction of mobility is less than the degree present in maximum custody.” Whether confinement is to be at the close or maximum level is to be determined by the Program Review Committee (and initially, in the case of Disciplinary Custody, by the Hearing Committee) on the basis of “the intensity of supervision and control required” and, in disciplinary cases, “the nature and particulars of the offense committed.” (Amended Directive, 1H[V.A., B.; VI.A.l., B. [§§ 95.106(a), (b); 95.107(a)(1), (b)]) 34. The parties have not submitted evidence as to how the restricted housing designations used in the amended version of Administrative Directive No. 801 correspond to the housing quarters at SCI Graterford. From the description of the various designated housing levels, it appears that Close Administrative and Disciplinary Custody corresponds to what has been known as “B Gallery” housing and Maximum Administrative and Disciplinary Custody corresponds to what has been known as the BAU. No evidence has been presented as to whether SCI Graterford now distinguishes between the privileges afforded to B Gallery and BAU residents according to whether their confinement is for administrative or disciplinary reasons. 35. Standard procedure at SCI Grater-ford is to place a prisoner transferred from another institution into the same housing category as that in which he was at his previous residence until his status can be reviewed. The initial review is conducted by the Behavior Clinic, a three-man committee consisting of defendant Mauger (the Acting Chairman) and one treatment and one vocational staff member. The Behavior Clinic reviews the transferee’s records to determine whether he should be kept in the same housing category as that at his previous residence or placed in a different category. If the Behavior Clinic decides that the transferee should be housed in the BAU for more than thirty days, it relinquishes jurisdiction over the new inmate to the Program Review Committee. 36. The Program Review Committee is a three-man body which, under Administrative Directive No. 801, consists of the Deputy Superintendent for Operations, the Deputy Superintendent for Treatment Services, and the Director of Treatment (called “Classification and Treatment Supervisor” in the amended Directive). (Original Directive, ¶ III.I.l; amended Directive, ¶ III. G.l. [§ 95.103(g)(1)]) At SCI Graterford, these positions are filled by Deputy Superintendent Meisberger and defendants Sims and Reid. From October 1975 to May 1976,. defendant Mauger, as acting Deputy Superintendent for Operations, was on the committee in place of Meisberger, who was on sick leave; he also has substituted for Meisberger since the summer of 1977. The committee’s duties include review of misconduct determinations of the Hearing Committee and, since May 1975, review of the status of inmates retained in the BAU for periods longer than thirty days. Prior to May 1975, the BAU inmate status reviews at SCI Graterford were conducted by the Behavior Clinic; the duty was transferred to the Program Review Committee by Superintendent Cuyler in compliance with Administrative Directive No. 801. 37. The following provisions of IIII.I. of the original version of Administrative Directive No. 801 were applicable to the Program Review Committee: 2. The resident shall be entitled to have any decision of the Hearing Committee reviewed by the Program Review Committee at his request. 3. The Program Review Committee shall review weekly those cases of residents detained in Administrative Custody or the Behavior Adjustment Units as the result of action of the Hearing Committee. 4. The Program Review Committee shall review bi-weekly those cases of residents held in Administrative Custody by self-imposed confinement, administrative protective confinement, transfers, etc. 5. The Program Review Committee shall interview in person at least once every 30 days those residents detained in Administrative Custody or the Behavior Adjustment Unit. Residents detained in this status for more than 30 days shall have their cases reported to the Commissioner of Correction, together with the rationale for such status and the particular programs prescribed.” In the amended Directive, these provisions are in HH.G. [§ 95.103(g)], and clauses 3.-5. have been amended to read as follows: “3. The Program Review Committee shall review weekly those cases of inmates detained in Administrative Custody or Disciplinary Custody and shall decide whether continued custody in those units is appropriate and necessary in each case. This decision will be based upon a review of the counselor’s notes and recommendations, additional entries made on the inmate’s record regarding his attitude and actions since placement in the restricted housing or since the last weekly review as well as the misconduct which was the basis of the placement for those cases in Disciplinary Custody. 4. The Program Review Committee, as a Committee, shall interview in person at least once every thirty days, those inmates detained in Administrative Custody or Disciplinary Custody. The determination of whether continued confinement is warranted will be based upon a review of the counselor’s notes and recommendations, psychological and psychiatric reports when available, recommendations by other staff and their written observations regarding his attitude and actions and his attitude and actions during the interview. If the inmate is in Disciplinary Custody, the gravity of the misconduct must also be considered. When the Program Review Committee determines that continued confinement is warranted, the inmate shall be given a written statement of the decision and its rationale. In cases of inmates detained in this status for more than thirty days, it shall be reported to the Commissioner of Correction by the Superintendent with his comments as well as those of the Program Review Committee and the rationale for such status and particular programs prescribed shall be stated. All inmates continuously confined in Administrative and Disciplinary Custody for a period of one year shall be given thorough annual psychological and psychiatric examination during this confinement. 5. The Program Review Committee, in releasing an inmate from Disciplinary Custody, must determine whether the inmate is a threat to other inmates, to staff or to himself or poses a threat of escape and all available records on the inmate shall be reviewed and considered to make this decision. In cases where such a determination is made the Program Review Committee may assign the inmate to either Close or Maximum Administrative Custody in cases • where the inmate was released from Maximum Disciplinary Custody or to Close Administrative Custody where the inmate was released from Close Disciplinary Custody. This determination will be made in writing and a copy will be provided to the inmate. Paragraph VI.D. of the original Directive provided: “Residents in [Administrative Custody, the BAU, and Psychiatric Quarters] shall receive interviews at least weekly by the institution’s professional treatment staff in an attempt to restore satisfactory behavior. The Program Review Committee shall release a resident from Administrative Custody or the Behavior Adjustment Unit as soon as feasible.” As amended, that provision (amended Directive, ¶ YI.C. [§ 95.107(c)]) states: “Inmates in [Administrative or Disciplinary Custody] shall receive interviews at least weekly by the institution’s professional treatment staff. The Program Review Committee shall release an inmate from Administrative Custody or Disciplinary Custody as soon as appropriate.” 38. Program Review Committee meetings to evaluate the status of BAU confinees are conducted at approximately thirty day intervals, depending on the personnel schedules. The first such meeting with respect to a particular inmate is usually conducted close to the sixtieth day of the inmate’s confinement since the committee does not obtain jurisdiction over that inmate’s case unless his confinement exceeds thirty days. Each inmate subject to committee review is escorted to the committee meeting from the BAU and interviewed by the Committee members. He is given an opportunity to discuss any changes in his situation and any incidents which occurred since the last review. The committee also reviews his records to obtain updated information. The committee then makes a decision as to the inmate’s future confinement status and informs the inmate of that decision. 39. The number of prisoners confined to the BAU for a period greater than sixty days is constantly changing. At the time of trial, nearly half of the BAU residents were in this category. It is not unprecedented for prisoners confined to the BAU for over one year to then be placed in a less restrictive housing area by the Program Review Committee. One such prisoner was Robert Buszka. Buszka’s case was in federal litigation at the time he was released from the BAU. 40. Administrative Directive No. 801 requires that all decisions of the Program Review Committee be reviewed by the Superintendent. (Original Directive, HULK.; amended Directive, ¶ III.H.7. [§ 95.-103(h)(7)]) Paragraph VI.F. of the amended Directive [§ 95.107(f)] provides: “Every thirty days the Superintendent shall personally review the case of each inmate separated from the general population for thirty days or more. He shall maintain a written report of his findings in each such case and together with a copy of the Program Review Committee’s report shall submit them to the Commissioner monthly.” The original Directive, ¶ VI.G., required reviews “not less than once every sixty (60) days.” E. History of Hoss’ Incarceration at SCI Graterford 41. Hoss was transferred to SCI Grater-ford from SCI Huntingdon on June 19, 1974. Because he had been in the BAU at SCI Huntingdon, Hoss was immediately placed in the BAU at SCI Graterford. 42. Hoss has been confined to the BAU at SCI Graterford continuously since his transfer to that institution. His cell at the BAU lacks its own lighting; the only light is located outside and out of reach of his cell and is not under his control. He has had the use of a television set in his cell since May 1976. He gets one hour of exercise outside of his cell each day. As a result of his confinement, he is not allowed access to weights for pursuit of his body-building program and cannot engage in the sports activities which he enjoys. He also does not have full access to the prison library or to prison movies. Because his parents live far from SCI Graterford, Hoss was granted permission to have extended two or three hour visits with them once a month in lieu of the normal BAU policy of three one-hour visits per month. 43. On June 24, 1974, Hoss was brought before the Behavior Clinic for the initial SCI Graterford determination of his confinement status. At that meeting defendant Mauger told Hoss that he would be a “permanent party” in the BAU. The decision to keep Hoss in the BAU was based on the fact that Hoss had been confined to the BAU at SCI Huntingdon and had just been convicted of killing a prison guard. BAU confinement was considered necessary to observe Hoss’ behavior. A report by Superintendent Johnson dated June 24, 1974 [Ex. P-27] notes the following disposition of Hoss’ case: “As a result of an interview conducted this date, — To be interviewed at check time only, — subject resident shall be remanded to the BAU, until July 24, 1974, when he will be interviewed.” 44. Hoss did not receive another review of his case until August 28, 1974. By this time Hoss had been confined to the BAU at SCI Graterford for two and one-half months, and he began to take actions to obtain release from his confinement. On September 3, 1974, he filed this lawsuit. He also wrote letters to Superintendent Marks requesting a chance to prove that he was capable of being released from the BAU and requesting better treatment during his confinement. 45. SCI Graterford records disclose no significant behavior problems of Hoss during the early period of his confinement at that institution (June 1974 — February 1975). Following the August 28, 1974 review, the Behavior Clinic reviewed his case on September 27, 1974; October 29, 1974; December 2, 1974; January 3, 1975; and February 25, 1975. After each of these reviews, a virtually identical report was filed. The September 27, 1974 report [Ex. P-24] is typical; it states in its entirety— “As a result of an interview conducted this date, — subject resident shall be remanded to the BAU, until October 28, 1974, when he will be interviewed.” Meanwhile, some improvement in Hoss’ confinement situation occurred. According to a September 27, 1974 entry on Hoss’ Cumulative Adjustment Record [Ex. P-14], a multipage prison document collecting various records relating to Hoss during his incarceration, Hoss requested to work while in the BAU, and, apparently in response to this request, defendant Mauger gave Hoss a work assignment which involved painting cells and janitorial duties. (This assignment later was suspended because the BAU population became crowded.) In addition, as a result of his complaints, Hoss received more extensive visiting privileges and improvement in his mail service. 46. On March 9,1975, Hoss was found to have committed a prison misconduct by possessing a contraband weapon. A neighboring BAU resident had awakened Hoss at 3:15 one morning by screaming for a match from the guard. Hoss complained to the neighbor about the screaming, and, in response, the neighbor threatened to kill him. Following that threat, Hoss obtained a sharpened spoon from another prisoner. Hoss threw the spoon away when prison personnel learned that he was carrying it. The misconduct charge resulted from that incident. As punishment, Hoss was restricted to his cell for seven days, thus being denied access to the exercise yard and showers. In addition, as a result of the misconduct, Mauger terminated Hoss’ work assignment, which had already been suspended due to crowded conditions in the BAU but which Mauger had intended to reactivate once the crowding had eased. 47. Hoss’ next Behavior Clinic review was conducted on March 25, 1975. The copy of the Behavior Clinic report reprinted in Hoss’ Cumulative Adjustment Record contains no mention of the misconduct and simply repeats the standard language used in all of the prior reports: “As a result of an interview conducted this date, — -subject inmate shall be remanded to the BAU, until April 25, 1975, when he will be interviewed.” 48. On April 6, 1975, Hoss was briefly interviewed in the BAU by Dr. Harvey P. Tapolow, SCI Graterford’s staff psychiatrist. In a report dated April 7 [Ex. P-29], Tapolow concluded that a more extensive interview was warranted and recommended that a team evaluation be done with “appropriate security measures” in view of Hoss’ “reputation for repeated violence.” Tapolow also observed that “continuous housing in the same cell for over a year is probably not appropriate treatment for anyone, and . . . if a man must be kept in maximum security for prolonged periods of time, . he should be rotated from one institution to another.” 49. On April 9, 1975, Hoss was given a psychiatric evaluation by a team consisting of Dr. Tapolow, another psychiatrist, and a psychologist. Five correctional officers attended the evaluation. The resulting report [Ex. P-30], authored by Dr. Tapolow, makes repeated references to Hoss’ reputation for violence: “At the present time Mr. Hoss is serving a natural life sentence for rape and murder. He has a rather strong reputation throughout the correctional system as being an extremely violent, easily setoff individual and it is for this reason that he is continuously under maximum security. . It appeared that Mr. Hoss was trying to make a good impression on the Psychiatric Team. He did not appear to be menacing but had a rather passive— almost pitiable expression on his face. There was no evidence of any repressed violence, hostility or surliness about him during the entire interview. He answered all questions honestly and straightforwardedly [sic]. . He stated that he did not feel that he was a violent person, but that if somebody made a threat to his health he would attack ruthlessly. He further stated that when he did kill somebody for a reason like this he felt absolutely no guilt or remorse. Mr. Hoss appeared to the Psychiatric Team to be a rather severely passive-aggressive or explosive personality. The possibility of temporal lobe or psycho-motor epilepsy could not be ruled out here, though he made no mention of loosing [sic] consciousness when committing violent acts. It was the feeling of the Psychiatric Team that it probably would be good to get testing including psychological testing and exhaustive neurological testing including waking and sleeping, eeg’s on this man. The only problem that exist [s/e] here is that his behavior pattern by history has been so unpredictable that it would be difficult even to administer the test or psychotherapy if that was found to be necessary without the risk of having him act-out violently on even the people administering the test for therapy-” The report concluded that even if additional tests couldn’t be taken, Hoss should be transferred to another institution: “Mr. Hoss should probably not be kept in the same cell for this long a period of time but possibly ought to be rotated to various other institutions to decrease the possibility of relative sensory deprivation that occurs when a person is incarcerated in the same small surroundings for prolonged periods of time.” 50. On the morning of April 11, 1975, Hoss threw parts of his bedding out of his cell in a dramatic effort to draw attention to his problems. A report on the incident [Ex. D-8] states, “He made no threats; he did say that he wanted help and would act up until he received help.” Hoss was charged with a misconduct for committing these acts. Apparently as a result of the incident, Hoss was given a psychological examination on that same day. An April 14 report [Ex. P-32] based on that examination concluded: “It is felt that [Hoss’] violent behavior will continue and is likely to become more severe until some change is made in the inmates [sic] present living conditions. . The unpredictable nature of his behavior necessitates close supervision. His controls deteriorate rapidly when he feels threatened, and he behaves out of proportion to the reality of the situation. The violent and unpredictable nature of his behavior suggests the possibility of explosive personality associated with temporal lobe or psychomotor epilepsy. It is felt that a change in his environment such as a transfer to another institution would likely alleviate the distress associated with prolonged environmental deprivation. A neurological examination and psychological testing under appropriate conditions are recommended.” 51. On April 30, 1975, another psychiatric evaluation [Ex. P-31] was filed by Dr. Tapolow. The doctor repeated his “strong feeling” that Hoss was in an “extremely stressful environment” and recommended that Hoss “be transferred to a maximum security psychiatric institution such as Far-view State Hospital where security could be maintained and, yet, not be as restricted as it is to him at the present time.” 52. In May 1975, responsibility for reviewing BAU residents’ confinement status was transferred from the Behavior Clinic to the Program Review Committee. A May 9, 1975 report of that committee reprinted in Hoss’ Cumulative Adjustment Record reads as follows: “Security risk: charged with the murder of officer at SCI [Pittsburgh], Dec. 1973. Recent misconduct for having a knife in the exercise yard in BAU; recommend to be transferred to another institution to change environment (submitted to Deputy Commissioner — no action). Psychiatric report recommends transfer to Far-view — no action.” Subsequent committee reports were filed at roughly one-month intervals: June 9, 1975; July 1, 1975 ; August 1, 1975; and September 1, 1975. Generally, each of these reports reads the same as that issued on May 9, 1975, except that they do not mention any recent misconducts. The June 9, 1975 report, as reprinted in Hoss’ Cumulative Adjustment Record is typical: “Stanley Hoss, P-0310 serving a life sentence for 1st. Degree Murder. In our BAU since 6/19/74 as a security risk. He is charged with the murder of an officer at SCI [Pittsburgh]. All BAU reports for the last 30 days are satisfactory. Recent psychological team reports recommend transfer to another institution for change in scenery 4/9/75, psychiatrist recommend [sic] transfer to Farview 4/30/75; no action on any of the recommendations. Physical appearance depressed but normal.” A June 10, 1975 entry in Hoss’ Cumulative Adjustment Record notes, “Case reviewed by Supt. Cuyler.” It is the only such notation in Hoss’ record. 53. The next Program Review Committee report on Hoss was issued on October 1, 1975. As reprinted in Hoss’ Cumulative Adjustment Record, it essentially follows the pattern of the earlier reports, except that it notes that Hoss was not present for his review because he was in the recreation area. At the committee’s direction, Hoss’ counselor interviewed him at a later date to obtain any information that Hoss wanted conveyed to the committee. The October 1 report also notes that Hoss was “not seen as appropriate for transfer to a mental hospital, as there is no psychiatric basis for admittance.” The committee maintained its recommendation that Hoss be transferred to another institution. 54. Hoss was next reviewed by the Program Review Committee on November 6, 1975, and a report on that review was issued on November 10, The report was essentially the same as those issued previously by the committee. Subsequent committee reports issued on November 25,1975 (based on review conducted November 19) [Ex. P-16]; December 31,1975 (based on review conducted December 30) [Ex. P-17]; and February 3, 1976 (based on review conducted January 27) [Ex. P-18] were somewhat more detailed, however. These latter reports note that gradual involvement of Hoss in various types of “programming,” including a ceramic work program, and the December 31 report comments that this “is seen as a positive step.” The work program (in which Hoss is still active) has involved the painting of ceramic figurines; all work has been done by Hoss inside his cell without special instructions. The February 3 report noted the further possibility of Hoss’ involvement in a language course using cassette tapes. The November 25 and December 31 reports continue the recommendation that Hoss be transferred, but add that no formal transfer petition had been submitted “because the situation is such that some prior awareness and approval of transfer plan would have to be made.” Following each of these reviews by the committee, Hoss was given a standard form copy of the committee’s decision, which was filled out in longhand. The decision issued after the November 6 review [Ex. P-7] is typical. The standard form reads, in typed lettering, “The Program Review Committee has completed its 30-day Review of your situation. The decision reached is as follows:”; there follows the following handwritten entry: “Continue in BAU as a security case. Recommend consideration by central office for transfer to another institution.” Beginning with the decision on the January 27 review, the last sentence of this entry is omitted. 55. On the morning of February 17, 1976, while on his way to the shower, Hoss became involved in an incident which led to a misconduct charge. Another BAU resident, Daniel Bosna, made a profane, derogatory statement to Hoss. (Hoss disparagingly characterized Bosna as a “30-day wonder,” i. e., a man confined to the BAU for only thirty days who, according to Hoss, undergoes a change in personality, becoming more violent and raucous.) Enraged at Bosna’s statement, Hoss ripped an electrical conduit (a lengthy piece of pipe) from the ceiling and attacked Bosna in his cell, inflicting superficial lacerations. A short time later, at the urging of the guards, who did not physically intervene, Hoss dropped a piece of the pipe in the corridor, returned to his cell, and closed the door, stating that he would attack prison guards in the future. About one hour later, Hoss surrendered a three-foot piece of the conduit that he had retained in his possession. Hoss was found to have committed a prison misconduct as a result of this incident and, as punishment, was restricted to his cell for three days (/. e., he was not allowed to leave his cell for showers or recreation.) 56. The Program Review Committee reviewed Hoss’ case on February 25,1976. In its report [Ex. P-19], it noted that “Hoss was less open than on previous reviews,” apparently as a result of the February 17 incident. The committee also noted that Hoss was no longer involved or interested in any “programming,” including the ceramic work program. In its next report on April 5, 1976 (based on review conducted March 29, 1976) [Ex. P-20], however, the committee noted that Hoss was “more relaxed and cooperative” and was interested again in the ceramic work program and the possibility of a language course. 57. On March 1, 1976, Hoss began an instructional program in Spanish. A tape recorder and cassettes were made available to Hoss and a teacher, Beverly Thompson, visited Hoss daily, except for those times when Thompson was on vacation or other leave. Thompson has a Bachelor of Science degree and a teaching certificate from the Commonwealth of Pennsylvania, and he is certified to teach elementary and secondary school. Thompson is not a certified Spanish language teacher; there are no foreign language teachers at Graterford, and inmates in general population do not have the option of studying foreign language on a basis different from that available to Hoss. Thompson spent approximately three hours a day teaching eight inmates in the BAU, including Hoss. 58. On Thursday, April 22,1976, defendant Mauger ordered Hoss restricted to his cell based on rumors that he had a razor in his cell and that if he were let out of his cell he would cause trouble in protest against the prison’s rejection of certain books as objectionable. The rumors were later found to be without foundation, and the restrictions were lifted on Monday, April 26. 59. The Program Review Committee reviewed Hoss’ case on April 29, 1976. In its report, dated May 3, 1976 [Ex. P-21], the committee noted that Hoss was working with ceramics once again and was learning Spanish through the use of cassette tapes. In addition, extra security measures that had been imposed on his visitation privileges had been lifted. The committee repeated the recommendation included in all of its reports that Hoss be continued in BAU confinement “as a security case.” 60. Trial in this case was conducted at SCI Graterford on June 1, 1976. During testimony at the trial, defendants Cuyler, Mauger, Reid, and, by deposition taken May 24, 1976, Sims, stated that they did not believe that Hoss had made a sufficient behavioral adjustment to allow his release from the BAU. They stated that they could not delineate any specific objective criteria which would be used to determine when Hoss had made a sufficient adjustment, and defendant Reid expressed the view that, if Hoss were given objective standards to conform to, Hoss would pattern his behavior to meet those standards without actually making the overall underlying behavioral adjustment necessary to live in a less restrictive environment. They testified that they did not intend to keep Hoss confined to the BAU forever and that they did intend to release him from BAU confinement once they believed that he was capable of peacefully living in a less restrictive environment. Also during testimony at trial, Dr. Tapolow repeated his view that continued BAU confinement for Hoss “can be stressful in itself and counterproductive to psychiatric health” (N.T. 88), although he acknowledged that it might be necessary for security. 61. Hoss was interviewed by the Program Review Committee on June 3, 1976. The committee’s report on that interview, dated June 7 [Stip., Ex. A], reads as follows: “Hoss approached the Committee interview in a subdued manner, discussing his work with Spanish language cassettes under Mr. Thompson’s supervision, as well as his continuing in the ceramic cellwork program. Hoss then began referring to his recent civil action trial, asking if individuals on the Committee were thoroughly familiar with his records and his background. It seemed apparent that anger was building inside him rapidly. He asked the Chairman if it was right or fair for personal feelings to be part of the basis for statements. Attempts by the Committee to steer the discussion off the topic of the trial were unsuccessful. Hoss, handcuffed, stood up in front of the desk Mr. Reid was sitting at and spat on him, threatening to kill him and using racial slurs. Several officers rushed into the room, but Hoss threatened them if they touched him. He then left the room, accompanied by the officers. A misconduct report was submitted by Mr. Reid. Committee views this incident as another example of Hoss’ explosive and violent behavior. He continues to demonstrate a need for the level of security represented by BAU. In view of this incident involving the Program Review Committee, a transfer of Hoss to another institution is strongly recommended.” As a result of the incident set forth in the report, it was decided that defendant Reid no longer should participate in committee reviews of Hoss; Reid was replaced by Director of Treatment Adrian Callender. 62. Hoss’ next committee review was scheduled for June 30, 1976, but the committee decided not to allow Hoss to leave his cell to be interviewed on that day. According to a July 1, 1976 committee memorandum [Stip., Ex. B], on June 29 an inmate, Guy Thomas, had spit on Reid during a committee review, stating, “This is for Stanley Hoss”, and on June 30 another inmate, Joseph Bowen, had made a “very unusual” inquiry about Hoss during his own committee interview. These incidents, reports that Hoss “was in an unusually tense mood”, and the unavailability of Callender (Reid’s replacement) caused the committee to postpone Hoss’ review. 63. The committee’s next reviews were conducted on July 7,1976 (report dated July 12) [Stip., Ex. C]; August 11, 1976 (report dated August 12) [Stip., Ex. D]; and September 22, 1976 (report dated September 29) [Stip., Ex. E]. According to the committee reports, Hoss was more subdued than he had been during the June 7 interview and was concerned primarily with administrative delay in deciding whether to transfer him to another institution. During his August 11 interview, he repeated his request for transfer to B Gallery, and the request was refused. Meanwhile, in early July, he stopped participating in the ceramic work program. The committee’s September 29 report states that Hoss requested “some counseling or therapy” from a Dr. Van Wye and notes, “Committee agrees that it can be provided, although security arrangements will have to be made.” The report also notes a request by Hoss for a personal interview with the superintendent; Hoss later received the requested interview. 64. On October 19, 1976, Hoss resumed participation in the ceramic work program. On October 29, he refused to be interviewed by the Program Review Committee [Stip., Ex. F], but subsequent reviews were conducted on December 2, 1976 [Stip., Ex. G] and February 2,1977 [Stip., Ex. H]. At the February 2 interview, he complained about delay of the prison transfer decision and the temporary suspension of his Spanish classes; the report also notes, “He complained that promises were made concerning weightlifting equipment for BAU inmates which was [sic] later denied, leading to some type of disruptive action on his part a few weeks ago.” The report concluded: “It is increasingly apparent to the [committee] that Stanley Hoss is not improving his behavior control in the BAU, yet he represents too much of a risk for lesser security at this institution, especially in view of threats he has made against our staff, such as Mr. Reid. [The committee] recommends continuance in the BAU.” 65. On February 18, 1977, Hoss began working as a janitor in the BAU, and he has continued that work to this date. He works five days per week, from 6:00 a. m. to 2:00 p. m., and receives 22 cents per hour compensation for performing his duties. While on the job, Hoss is outside his cell for approximately five to six hours daily. All work is done exclusively in one BAU cell block consisting of nine cells. 66. In March 1977, Hoss notified the Program Review Committee that he did not want to be transferred to another prison. He declined to be interviewed on March 31, 1977 [Stip., Ex. I] and was not interviewed again until June 1,1977 [Stip., Ex. J], when he requested permission to send his television set home and repeated his desire to be placed in B Gallery. As to the latter request, Hoss “was advised that he must continue to demonstrate a stable adjustment to warrant such consideration.” Hoss refused to be interviewed on July 7, 1977 [Stip., Ex. K] but was interviewed on July 20. A report on the latter review, dated July 21 [Stip., Ex. L], noted that Hoss “was upset and agitated” because he felt that he was being singled out in an investigation of the BAU. 67. On August 5, 1977, pursuant to a suggestion by the Court that counsel arrange for Hoss to be examined by a psychiatrist not associated with the Pennsylvania prison system, Hoss was examined by Dr. Robert L. Sadoff, an internationally recognized forensic psychiatrist. During the interview Hoss remained handcuffed and guards were stationed outside of the interview room. In a report dated August 8, 1977, Sadoff expressed the following opinion: “It is my conclusion . . . that Mr. Hoss is not deteriorating psychologically in the BAU. He is working very hard to keep from such deterioration and has been succeeding in his efforts. He is keeping busy, maintaining a routine, writing letters, working at a janitorial job and apparently has been cooperating with the people who are taking care of him. Keeping him in the BAU for security reasons, or removing him at this time does not appear to be dependent upon a psychiatric condition, but rather a correctional matter. He does not seem to be deteriorating psychologically to the point that he needs a transfer or a shift at this point, and he is not so emotionally disturbed psychiatrically that he requires isolation and confinement. That is, he does not appear to be acutely violent or suicidal. Decisions about his retention in the BAU or discharge from it should be based on a total correctional approach and the psychiatric input should be only one aspect or factor. At this point the psychiatric issue does not appear to be a significant one in the decision to either retain or discharge Mr. Hoss from the BAU.” 68. On August 9, 1977, pursuant to the Court’s suggestion that an outside psychiatric examination be conducted and an August 3, 1977 order of this Court directing the defendants at SCI Graterford to allow an examination of Hoss by a doctor retained by Hoss’ counsel, Hoss was examined by Dr. Frank Rundle, a psychiatrist with extensive experience in dealing with the psychiatric problems of prisoners. In an undated report filed with the Court on October 25,1977, Rundle expressed the following opinion: “6. Predictions concerning subject Hoss’ dangerousness and his adjustment should he be released from the maximum security area of the BAU. The prediction of behavior dangerous to the safety and lives of others is a matter of considerable current controversy but most behavioral science experts involved in this particular area agree that it is not possible to predict with any certainty whether or not a given individual will behave in such a manner. However, Mr. Hoss does not display persecutory distortion in reality nor persecutory delusions which in some instances cause a person to respond violently to actions of other persons which are interpreted in the view of the delusion or major distortion of reality. It is my opinion that if Mr