Seibert v. McCracken, 73-26 Civil.

• Decision Date: 07 March 1974
• Docket Number: No. 73-26 Civil.,73-26 Civil.
• Citation: 387 F. Supp. 275
• Parties: Joseph SEIBERT, Plaintiff, v. Leo McCRACKEN, Director, Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

387 F. Supp. 275

Joseph SEIBERT, Plaintiff, v. Leo McCRACKEN, Director, Department of Corrections, et al., Defendants.

No. 73-26 Civil.

United States District Court, E. D. Oklahoma, Civil Division.

March 7, 1974.

COPYRIGHT MATERIAL OMITTED

Joseph Seibert, pro se.

Paul Crow, Asst. Atty. Gen., Oklahoma City, Okl., for McCracken.

Roehm West, Tulsa, Okl., for Page.

Willard M. Gotcher, McAlester, Okl., for Anderson.

MEMORANDUM OPINION

DAUGHERTY, Chief Judge.

Plaintiff, an inmate in the Oklahoma State Penitentiary, has brought this action under the Civil Rights Act, 42 U.S. C. § 1983, against Defendants Leo McCracken, former Director of the Oklahoma Department of Corrections, Park J. Anderson, former Warden of the Oklahoma State Penitentiary, and Ray Page, former Warden of the Oklahoma State Penitentiary, complaining that acting under color of state law said Defendants deprived Plaintiff of certain of his civil rights in connection with his confinement as a prisoner in said institution.

Plaintiff complains that he was placed in maximum segregation from May 26, 1970 until March 23, 1971 without charge or hearing; that he has been subjected to cruel and unusual punishment in connection with the conditions of his confinement in maximum segregation; that he has been subjected to the use of mace and that while in lockup (maximum segregation) he was not allowed to file writs, nor afforded access to the Prison Law Library nor allowed to have legal papers in his cell.

The Plaintiff seeks relief herein in the form of money damages in the amount of $15,100.00 plus $50.00 per day for the period of time held in maximum segregation as aforestated.

The Defendants have answered the complaint denying the allegations thereof. The Court has conducted an evidentiary hearing. The State of Oklahoma has voluntarily produced the Plaintiff in open Court so that he may testify regarding his complaints.

On the evidence presented to the Court the following findings of fact and conclusions of law and decisions are made herein:

(1) The Plaintiff testified to being placed in maximum segregation on May 26, 1970 and confined there and until March 23, 1971 without being notified of any charges for such confinement or being afforded a hearing in connection therewith. Plaintiff presented no evidence that such confinement was directed or participated in by the Defendants Leo McCracken and Park J. Anderson and therefore Plaintiff's evidence fails as to them in connection with this complaint. It is the general rule that an official will not be liable in a Civil Rights action unless he directly and personally participates in conduct under color of state law which deprives the plaintiff of rights, privileges, and immunities secured him by the Federal Constitution. Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972). It is an essential element of a Civil Rights claim that the particular defendant be personally involved in the alleged denial of the Constitutional right. Battle v. Lawson, 352 F.Supp. 156 (W.D.Okl.1972); Townes v. Swenson, 349 F.Supp. 1246 (W.D.Mo.1972); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971).

The evidence reveals that Defendant Ray Page was Warden of the Oklahoma State Penitentiary during the aforementioned period of this Plaintiff's confinement in maximum security. Defendant Page testified that the Chief Security Officer of the prison was the officer who placed Plaintiff and two other inmates in maximum security on the basis of reliable information that the three of them were responsible for smuggling pistols into the institution which were then hidden at some location in the institution; that the Plaintiff and the other two inmates were necessarily placed in maximum security in view of this information pending an investigation of the matter and an attempt to locate the pistols within the confines of the institution; that he concurred in this confinement and ordered his Chief Security Officer to continue the investigation and locate the pistols. Defendant Page testified that one pistol was in fact located in the institution but that the other two pistols were not located. Defendant Page further testified that the Plaintiff had a long criminal record; that he considered Plaintiff to be a dangerous prisoner, pointing to his three previous escapes from confinement and one attempted escape while in custody in a Courtroom hearing and also that Plaintiff was serving 150 year sentence for robbery with firearms and had a detainer against him from Missouri.

In United States v. Smith, 464 F.2d 194 (Tenth Cir. 1972) it is held that actions of prison officials in disciplining inmates for the protection of others and possibility of escape are not subject to judicial review in the absence of arbitrariness or caprice. The Supreme Court has recognized that summary treatment may be necessary in controlling a large group of potentially disruptive prisoners in actual custody. Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court finds that the evidence herein does not establish arbitrariness or caprice on the part of Defendant Page in allowing Plaintiff to be placed in control status in the segregated section of the institution. The action was not to punish or discipline the Plaintiff but as administrative control essential to the safety and security of the institution. A prisoner has no constitutional right to be held in a particular facility and the courts will not undertake to supervise or review an administrative decision to transfer a prisoner from one cellhouse to another. In Evans v. Moseley, 455 F.2d 1084 (Tenth Cir. 1972) our Circuit said:

". . . the general rule (is) that the basic responsibility for the control and management of penal institutions, including the discipline, treatment and care of the confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such manner as to constitute a clear abuse or caprice on the part of prison officials. Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969)."

Prison officials do not have to establish "probable cause" to remove a prisoner from the general population. Huguenot v. Wainwright, 464 F.2d 1077 (Fifth Cir. 1972). In Graham v. Willingham, 384 F.2d 367 (Tenth Cir. 1967) the petitioner had been confined continuously in segregated confinement in maximum security facilities for more than two years. It appeared, however, that his prison record reflected a history of participation in violent conduct and the court stated that the decision whether the petitioner was a threat to others or the safety or security of the penitentiary was a matter for the prison administrators and not the courts. In Burns v. Swenson, 430 F.2d 771 (Eighth Cir. 1970), cert. denied, 404 U.S. 1062, 92 S. Ct. 743, 30 L.Ed.2d 751, reh. denied 405 U.S. 969, 92 S.Ct. 1178, 31 L.Ed.2d 245, the prisoner was assigned to maximum security without hearing and there was no formal review for a period of two years. His history was characterized by a "lengthy criminal record, his numerous violations of prison rules, coupled with a manifestation of incorrigibility, a determined purpose to flout prison authority, and a demonstrated opposition to rehabilitation . . .." 430 F.2d at 780. In holding the petitioner had not been denied constitutional due process the court stated:

"It certainly does no violence to the Constitution or the sensibilities of this court, for example, for prison authorities to unilaterally and without hearing segregate riotous or trouble-making prisoners from the general prison population when the Penitentiary atmosphere is charged and tense. The preservation of security and order, both for the segregated inmates and for the general prison population, as well as the prison officers and administrators, must be allowed high priority. Here a violent stabbing and several contemporaneous assaults manifesting racial hatred among the inmates had occurred. The prison authorities apparently had reason to believe that Burns and other inmates had participated in the incident. Exigent circumstances known only to the prison officials may have required the foregoing of any hearing at the time of Burns' segregation. The remaining delay must have related to the necessities of investigation of the incident and the continued tension in the prison." 430 F.2d at 779.

Here there can be no doubt that Plaintiff was a dangerous man, made desperate by the prospect of long incarceration. Information about the introduction of firearms into the institution which had not been recovered created an extremely volatile and dangerous condition in the prison. No greater threat to the security and safety of the institution could be imagined than the combination of desperados armed with dangerous weapons. The Court feels in view of all the circumstances as shown by the evidence herein, that Defendant Page was justified in allowing Plaintiff to remain in maximum segregation while the necessary investigation and search were undertaken for a most serious and dangerous situation which could reasonably have been in the prison. Indeed, Defendant Page would have been derelict in his duty had he not approved such action as a means of avoiding an attempted prison break and the attendant danger to the lives of prison officials, other inmates and the Plaintiff himself. The Court specifically finds from the evidence and all the circumstances present that the Defendant Page as Warden of the institution did not abuse his authority and did not act arbitrarily or capriciously in separating Plaintiff from the prison population under the circumstances...