Gettleman v. Werner, Civ. A. No. 73-567.

• Decision Date: 21 May 1974
• Docket Number: Civ. A. No. 73-567.
• Citation: 377 F. Supp. 445
• Parties: Paul R. GETTLEMAN, Plaintiff, v. Stewart WERNER, Acting Commissioner of the Bureau of Corrections for the Commonwealth of Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

377 F. Supp. 445

Paul R. GETTLEMAN, Plaintiff, v. Stewart WERNER, Acting Commissioner of the Bureau of Corrections for the Commonwealth of Pennsylvania, et al., Defendants.

Civ. A. No. 73-567.

United States District Court, W. D. Pennsylvania.

May 21, 1974.

Leonard I. Sharon, Michael L. Rosenfield, Pittsburgh, Pa., for plaintiff.

William C. O'Toole, Asst. Atty. Gen., Pittsburgh, Pa., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF COURT

MARSH, Chief Judge.

In this Civil Rights Act¹ case the plaintiff, Paul R. Gettleman, a former employee of the State Correctional Institute at Pittsburgh (Penitentiary), has sued the Acting Commissioner of the Bureau of Corrections, the Superintendent of the Penitentiary, a Deputy Superintendent, and three prison guards seeking compensatory and punitive damages for an allegedly illegal search and seizure to which he was subjected on June 27, 1973. Plaintiff's theory of liability, as revealed by his pretrial narrative statement, is that the three guards acting on orders from the Deputy Superintendent illegally subjected him to a strip-search and that the Superintendent and Commissioner knew or should have known of the guards' propensity to violate the plaintiff's Constitutional Rights under the First and Fourth Amendments. The defendants, on the other hand, contend that the search and seizure which occurred was justified by plaintiff's conduct which generated reasonable suspicion, and that the guards, with probable cause, relied in good faith upon standard procedures at the Penitentiary in stopping and searching employees for contraband, and Rule 9 of the "Handbook of Information and Rules for Officers and Employees of the State Correctional Institutions" (Handbook) (DX C and DX K), in seizing "questionable material." Also, the Acting Commissioner, Superintendent, and Deputy Superintendent contend that they are not liable for the actions of the guards because they neither actively participated in nor had any knowledge of the search and seizure until after it occurred. The court finds a verdict in favor of the defendants.

The court makes the following:

FINDINGS OF FACT

1. At all relevant times all parties to this action were employees of the Bureau of Corrections of the Commonwealth of Pennsylvania. The defendants were employed in the capacities stated in the caption and acted in those capacities under color of state law.

2. On January 26, 1972, the plaintiff, Paul R. Gettleman, was hired at the Penitentiary as a teacher; in the beginning he was assigned as librarian and subsequently taught in the prison school and was a notary for the Penitentiary. In 1973, he was admitted to the Bar and is now a practicing attorney in Allegheny County, Pennsylvania.

3. As part of his initial orientation as a Bureau of Corrections employee, plaintiff was supplied with the Handbook (DX C and DX K) and, on January 27, 1972, signed a waiver form in which he agreed to abide by said rules as a condition of his employment (DX B).

4. Smuggling contraband in and out of the prison is and has been a serious problem. Participants have been employees and guards as well as inmates. To remedy this situation, unannounced searches of employees and inmates are conducted to discover contraband coming into or going out of the prison. Contraband coming into the Penitentiary would be considered anything which was not issued to or available for purchase in the prison store by prisoners and was brought into the prison without the Superintendent's permission. Contraband leaving the institution would be anything which an employee was taking out for a prisoner without the consent of the Superintendent.² The type of search varies from stop-and-frisk searches to body-intrusion searches.

5. Large signs are exhibited at the entrances and exits of the Penitentiary which state, "ALL VISITORS OR EMPLOYEES ARE SUBJECT TO SEARCH UPON ENTERING OR LEAVING THIS GATE." (DX A) At least two guards, picked at random, are searched daily, and other employees in the Penitentiary are frequently and routinely searched upon entering the Penitentiary and at times upon leaving it. Employees under suspicion or investigation by the guards for dealing in contraband may be searched during working hours. No set pattern or procedure has been established for determining which employees are to be searched during working hours, and individual guards of the rank of lieutenant or above use their discretion in initiating such searches.

6. Plaintiff first came under suspicion as a possible smuggler in May of 1972 when Lieutenant Kozakiewcz, a named defendant, discovered two letters in a prisoner's jacket referring to "Mr. Gettleman" and "Paul." A fair reading of these letters indicates that the plaintiff was acting as a go-between for a prisoner at the Penitentiary and another prisoner at the Allegheny County Jail and that he was attempting to find a way to transfer money from certain prisoners at the Penitentiary to the prisoner at the County Jail. Money is considered to be contraband at the Penitentiary. See Footnote 2.

Lieutenant Kozakiewcz turned these letters over to Superintendent Walters.

Subsequently, Major Jasak and Captain Krall, both defendants herein, noticed the plaintiff in the prison yard with large groups of inmates gathered around him, which is prohibited by Rule 6 and reportable by Rule 14 in the Handbook.³ On occasion it was necessary to send prison guards into the yard to break up these crowds. Major Jasak submitted several reports to the Superintendent critical of plaintiff's conduct in this respect.

7. In the one and one-half year period from January 26, 1972, to June 27, 1973, plaintiff had been searched 35 or 40 times, usually when he was entering or leaving the Penitentiary with books. He made no objection.

8. On June 14, 1973, Officer Bodner of the security staff reported to Captain Krall that at approximately 8:50 A. M., while he was standing guard at the Number Seven Tower, he had observed plaintiff give one of the residents two cubes of white substance in the vicinity of the storeroom and bocci court. See Footnote 2.

9. Captain Krall asked the plaintiff if he had given anything to a resident that day. The plaintiff responded that he had given a resident two pieces of garlic that he had brought in from the outside. Plaintiff said he did not know the name of the resident involved. Captain Krall informed plaintiff that anything he brought in from the outside without prior authorization was considered contraband, and the plaintiff denied knowledge of any such rule. Captain Krall made a formal written report of this incident to Major Jasak and Deputy Superintendent Jennings. (DX I).

10. The next day, June 15, 1973, plaintiff prepared a list of handwritten demands he planned to submit to a guard attempting to search him (PX A, see Finding 13).

Later that day, plaintiff was stopped and frisked twice—once by Lieutenant Kozakiewcz and once by Lieutenant Kozakiewcz and Captain Krall and another guard. During both searches, plaintiff was asked to remove his shoes and socks and he complied. He did not show his prepared lists of demands (PX A) to the searching guards on either occasion.

11. On or about June 18, 1973, Deputy Superintendent Jennings, a named defendant, conducted a meeting which was attended by the defendant guards. Deputy Jennings informed the guards of a directive he had received from the Director of Operations, Ronald J. Marks, stressing the need for "systematic thorough search procedures" covering all residents and personnel (DX J). The directive stated that "known troublemakers" were to receive special attention.

Deputy Jennings informed the guards at this meeting that they were becoming lax in searching residents and employees for contraband. Plaintiff was particularly discussed and Jennings informed the guards that he was concerned and disturbed by several reports he had received concerning plaintiff's activities. The guards in general and Lieutenant Kozakiewcz in particular were instructed to keep plaintiff under surveillance as he was under investigation and suspected of conveying contraband. The security personnel were authorized to conduct any searches they felt were necessary and to use their good judgment in determining the extent of the search as the situation indicated.

12. On June 27, 1973, at approximately 3:40 P.M., plaintiff approached the rear gate to the rotunda of the administrative building. One may pass through the rotunda in making an exit to the outside of the Penitentiary. Lieutenant Kozakiewcz was on duty and in charge of security in the rotunda. Plaintiff called Lieutenant Kozakiewcz to the rear gate and handed him a carbon copy of a letter he had written to Superintendent Walters which was critical of Kozakiewcz. Kozakiewcz did not read the letter at this time. Another guard admitted the plaintiff into the rotunda. At this point the plaintiff, who was in possession of letters, was about 50 feet from the exit leading out of the Penitentiary. In the rotunda, Lieutenant Kozakiewcz requested the plaintiff to submit to a search. Plaintiff stated he had prisoner mail which had to be delivered to the mailroom on the third floor by four o'clock. Kozakiewcz insisted on an immediate search. Plaintiff refused and became loud, angry and belligerent. Other employees and visitors were in the rotunda at this time of the day. Plaintiff refused to be searched unless Deputy Superintendent Zimmerman was present and unless Lieutenant Kozakiewcz complied with his handwritten list of demands (PX A) which he gave to the Lieutenant.

13. This list of demands is unprecedented insofar as search procedures at the Penitentiary are concerned. The demands (PX A) provided:

"1. I want a person from the treatment staff present.

2. I want the name, in writing, of the person who ordered the search.

3. I want to know, in writing, the reason for this search.

(a) What, if any is the

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