Penn v. Oliver, Civ. A. No. 564-72-R.

• Court: U.S. District Court — Eastern District of Virginia
• Writing for the Court: MERHIGE
• Citation: Penn v. Oliver, 351 F.Supp. 1292 (E.D. Va. 1972)
• Decision Date: 26 December 1972
• Docket Number: Civ. A. No. 564-72-R.
• Parties: Thomas L. PENN v. R. M. OLIVER, Superintendent of the Virginia State Penitentiary.

351 F. Supp. 1292

Thomas L. PENN v. R. M. OLIVER, Superintendent of the Virginia State Penitentiary.

Civ. A. No. 564-72-R.

United States District Court, E. D. Virginia, Richmond Division.

December 26, 1972.

Thomas L. Penn, pro se.

William A. Carter, III, Asst. Atty. Gen. of Virginia, Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Thomas Lee Penn, the plaintiff, is an inmate at the Virginia State Farm and brings this action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the conditions of his imprisonment. Jurisdiction is attained by virtue of 28 U.S.C. § 1343. The defendant has moved for summary judgment, plaintiff has responded, and the matter is now ready for disposition.

The circumstances underlying this complaint concern a serious altercation between Penn and another inmate by the name of George Huff. It appears that on June 11, 1971, an attempt was made on Penn's life by one Wiley A. Reynolds. One of Reynolds' friends, who was tangentially involved in this fight, was Huff. As a result of this incident, Huff was placed on maximum security status at the State Farm and apparently remained there until October 26, 1972.

On August 31, 1971, Penn wrote to the defendant, Oliver, Superintendent of the State Farm, and expressed his fear of Reynolds and Huff. Oliver responded, advising Penn that this conflict between him and Huff would be carefully considered prior to any decision on Huff's status. However, Oliver candidly admits that over a year later, when Huff was released from maximum security status, he had forgotten about this letter and did not bring it to the attention of the Institutional Classification Committee (I.C.C.). No other attempt was made by Penn to notify the authorities of his concern. The affidavit of E. C. Morris, Chairman of the I.C.C. before which Huff appeared, reveals that Huff was asked if he anticipated any problems with other inmates if he were released to the general population; Huff responded in the negative. Although Oliver signed Huff's release, he played no active part in the I.C.C.'s decision.

Five days after Huff's release into general population, on November 1, 1972, a fight between Huff and Penn occurred. The record reveals a conflict of opinion as to the facts surrounding the fight. Penn claims that he was assaulted by Huff, but the official state police investigation found Penn to have been the aggressor.

Following the incident, Huff was returned by the I.C.C. to maximum security status. Penn, on the other hand, was incarcerated in the Powhatan-Goochland County Jail located on the State Farm, pending a final investigation of the incident. Another reason for his incarceration in the jail was the fact that Huff had been transferred back to the maximum security building, and the prison authorities undoubtedly desired to separate the two.

By this suit, plaintiff both attacks his transfer into the county jail and charges that the defendant failed to provide adequate security to protect him from Huff's attack....