Gahagan v. Pennsylvania Bd. of Probation & Parole, Civ. A. No. 77-1576.

• Decision Date: 13 February 1978
• Docket Number: Civ. A. No. 77-1576.
• Citation: 444 F. Supp. 1326
• Parties: Philip J. GAHAGAN, Sr., on behalf of himself and all others similarly situated, v. The PENNSYLVANIA BOARD OF PROBATION AND PAROLE, William Forbes, Paul Descano, John Jefferson, and Verdell Deans, as members of the Parole Board, and Individually, and Ralph Corbin, Vicki Weisel, and James Arnett, as agents of the Parole Board, and Individually, and Northampton County Prison Board, Marshall Brown, Eugene Giunta and Louis Guida, as members of the Prison Board, and Individually, A. S. DiGiacinto and Robert Olander, as employees of the Prison Board, and Individually.
• Court: U.S. District Court — Eastern District of Pennsylvania

444 F. Supp. 1326

Philip J. GAHAGAN, Sr., on behalf of himself and all others similarly situated, v. The PENNSYLVANIA BOARD OF PROBATION AND PAROLE, William Forbes, Paul Descano, John Jefferson, and Verdell Deans, as members of the Parole Board, and Individually, and Ralph Corbin, Vicki Weisel, and James Arnett, as agents of the Parole Board, and Individually, and Northampton County Prison Board, Marshall Brown, Eugene Giunta and Louis Guida, as members of the Prison Board, and Individually, A. S. DiGiacinto and Robert Olander, as employees of the Prison Board, and Individually.

Civ. A. No. 77-1576.

United States District Court, E. D. Pennsylvania.

February 13, 1978.

COPYRIGHT MATERIAL OMITTED

Eugene K. Twining, Allentown, Pa., for plaintiff.

John D. DiGiacomo, Easton, Pa., for North Hampton County Prison Board, et al.

D. Bruce Hanes Asst. Atty. Gen., for Pennsylvania Board of Probation and Parole, et al.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

Plaintiff, a former inmate at the Northampton County Prison, (the Prison) filed suit under 42 U.S.C. §§ 1983 and 1985(3) and 28 U.S.C. §§ 1343(3), 2201, 2202, 2281, and 2284, against the Northampton County Prison Board (the Prison Board), and its members and certain employees, and the Pennsylvania Board of Probation and Parole (the Parole Board) and its members and certain employees. Plaintiff initially relied upon 42 U.S.C. § 1981, but has since admitted that § 1981 applies only to actions for racial discrimination. He contends instead that this action also lies under § 1986.

Plaintiff was incarcerated in the Prison from May 24, 1974, to October 24, 1975, at which time he was paroled. In his complaint against the Prison Board, plaintiff alleges that certain employees, A. S. DiGiacinto and Robert Olander, subjected him to various acts of discriminatory treatment, including: denial of participation in a work release program; denial of furlough; wrongful and malicious withholding from the Parole Board information which would have enhanced plaintiff's chances for parole in May of 1975, when he first became eligible; denial of the opportunity to consult a doctor of his own choice at his own expense regarding a constant pain in his back; reduction of prison pay from $50.00 to $30.00 without justification and with intent to harass. Plaintiff accuses the Prison Board of tolerating such conduct and other pernicious acts by not properly punishing culpable employees, despite notice of their wrongful conduct.

Regarding the Parole Board, plaintiff alleges that the Board had knowledge that plaintiff possessed assets with which he could have made restitution to the victims of the embezzlement for which he was convicted and imprisoned; knowing also that these assets were subject to rapid deterioration; arbitrarily denying parole in spite of this knowledge; subjecting plaintiff to humiliation through a degrading interview by defendant Vicki Weisel regarding personal sexual matters; wrongful and arbitrary arrest and detention by defendant James Arnett after plaintiff's parole.

Contending that these actions caused him great pain and suffering, and great financial loss through the deterioration of his assets he seeks damages and declaratory relief, as well as a declaration by a three-judge court that the Pennsylvania Probation and Parole Act, 61 P.S. § 331.1 et seq. is unconstitutional.

The Prison Board, on behalf of its members and employees, moves to dismiss the complaint, contending that the complaint fails to state a claim upon which relief can be granted. The Parole Board, on behalf of its members and employees, also moves for dismissal, and for summary judgment.

The Motion of the Prison Board

The Prison Board contends that failure to allow participation in either work release or furlough is not an infringement of a constitutional right, no matter how arbitrary the decision; that withholding of information is not a violation of plaintiff's civil rights, especially since there is no indication that inaccurate information or dishonest statements were communicated to the Parole Board and that failure to provide proper medical care is not an infringement of a constitutional right.

Defendants also contend that the Prison Board is not a "person" within the purview of the Civil Rights Act of 1871, and for that reason the Board members also cannot be liable. Defendants maintain that they are entitled to a good-faith defense because of their quasi-judicial immunity, as well. Furthermore, it is contended that since there is no indication of direct personal involvement of the Board members, the complaint must be dismissed as to them.

The Prison defendants cite Sanno v. Preiser, 397 F.Supp. 560 (S.D.N.Y.1975) to support their contention that denial of work release and furlough participation is not an infringement of a constitutional right, no matter how arbitrary or capricious. That case does not so hold. Instead, the Sanno Court held that a refusal to permit a prisoner to participate in work release and furlough programs because of the vicious nature of the offense, the prisoner's extensive prior record, his prior use of drugs and his pattern of poor community adjustment was not arbitrary and therefore not a denial of equal protection under the law. Plaintiff therein could not argue that the factors considered were erroneous or ill-founded.

In the instant case, plaintiff is not contending that the basis for denial of these rights was erroneous or ill-founded, but that the decision was arbitrary and capricious, i. e., it had no basis at all. Such a factual allegation was held in Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975), to assert grounds upon which plaintiff could recover. Therefore, it is necessary for the instant defendants to assert the basis for denial of participation in the work release and furlough programs. Once they do so, of course, the Court will not question the wisdom of or factual basis for their decision. A federal court, except in very exceptional circumstances, does not possess supervisory power over state prison officials. United States v. Blierley, 331 F.Supp. 1182 (W.D.Pa.1971). Federal courts are, as a general rule, reluctant to inquire into the administration of state prisons. United States ex rel. Verde v. Case, 326 F.Supp. 701, (E.D.Pa.1971). Prison officials have wide discretionary authority to make reasonable rules and regulations for the operation of prisons. Roach v. Kligman, 412 F.Supp. 521 (E.D.Pa.1976), Wilson v. Prasse, 325 F.Supp. 9, 12 (W.D.Pa.1971), affirmed, 463 F.2d 109 (3d Cir. 1973).

There was statutory and regulatory authority controlling the granting of home furloughs, which is discussed at length in the learned and thorough opinion in United States of America ex rel. Williams v. Cuyler, C.A. No. 77-1797 (Oct. 18, 1977). However, in the instant case the allegation is that no regulations were followed and that the denial of work release and furlough was completely arbitrary and thus an abuse of discretion. Unlike the Williams Court, this Court does not have the benefit of an affidavit by defendants or any other evidence establishing the basis for denial of furlough.¹ Therefore, on the present record, we have no alternative but to deny the motion to dismiss pending further developments.²

Plaintiff also alleges that DiGiacinto and Olander deliberately withheld information from the Parole Board that would have enhanced his chances for parole in May of 1975. The Prison defendants argue that "there is no constitutionally protected right to have prison officials communicate every facet of plaintiff's life in the prison to the Parole Board in light of the fact that they did recommend him for parole". This is not a proper ground for dismissal, since plaintiff disputes the assertion that he was recommended for parole and instead alleges that DiGiacinto and Olander, in collusion with defendant Weisel conspired to obstruct his right to parole. However, we will otherwise grant the motion to dismiss this portion of the complaint because, for reasons that will be discussed subsequently, we have found that the denial of parole was not improper.

Likewise, the allegation of improper denial to the plaintiff of the opportunity to consult a doctor of his choice at his own expense must also be dismissed. To establish a constitutional violation actionable under the Civil Rights Act, denial of medical care must be more than mere neglect or carelessness which could arguably constitute malpractice under state law, and must be such deliberate, intentional indifference as to constitute unnecessary and wanton infliction of pain. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

Defendants contend that plaintiff's claim for damages for reduction of his prison pay should be dismissed pursuant to Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975). That case held that an inmate's expectation of keeping a particular prison job is not a "property" or "liberty" interest entitled to protection under the due process clause. We agree that this case controls and will dismiss this portion of plaintiff's complaint.

We also agree with defendants that the complaint should be dismissed against the Northampton County Prison Board because it is not a "person" within the purview of the Civil Rights Act. See Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977). However, this holding does not warrant dismissal of the actions against the Board members, who may be liable as individuals. Likewise, the quasi-judicial immunity of the Board members, which applies to adjudicatory duties, is not properly raised at this juncture. Nor is the good faith qualified immunity for executive officers properly before us. We do not have on record the bases for the actions of any of the Prison defendants regarding any of the matters set forth in the complaint. Thus we cannot tell if the acts...