United States ex rel. Tyrrell v. Speaker, 71-1906.

• Decision Date: 03 January 1973
• Docket Number: No. 71-1906.,71-1906.
• Citation: 471 F.2d 1197
• Parties: UNITED STATES of America ex rel. David TYRRELL, Appellant, v. Fred SPEAKER, former Atty. General of Pa., et al.
• Court: U.S. Court of Appeals — Third Circuit

471 F.2d 1197 (1973)

UNITED STATES of America ex rel. David TYRRELL, Appellant, v. Fred SPEAKER, former Atty. General of Pa., et al.

No. 71-1906.

United States Court of Appeals, Third Circuit.

Submitted September 11, 1972.

Decided January 3, 1973.

As Amended January 9, 1973.

David Tyrrell, pro se.

Dante Mattioni, Michael Luber, Harrisburg, Pa., for appellees.

Before BIGGS, JAMES ROSEN,^* and HUNTER, Circuit Judges.

Submitted Under Third Circuit Rule 12(6) September 11, 1972.

OPINION OF THE COURT

BIGGS, Circuit Judge.

In this suit brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970), plaintiff Tyrrell seeks injunctive relief and damages from the very numerous defendants named in the title. He asserts that the appellees are guilty of conspiracy, wilfully and maliciously depriving him of his civil rights violating the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.

Tyrrell was arrested on December 20, 1969 in Delaware County, Pennsylvania, and was charged with a series of crimes, including robbery and the shooting of a police officer prior to his arrest. Tyrrell was injured and was admitted to the Riddle Memorial Hospital near Media, Pennsylvania. Upon release therefrom he was admitted to the Delaware County Prison Hospital until December 26, 1969. It is assumed, though the complaint does not so state, that he left the hospital at the time last indicated and was remitted to a cell in the prison itself. According to the complaint, on January 22, 1970 the relator was seen emerging from the cell assigned to Raymond Crispt. A hole had been dug in Crispt's cell. An affidavit filed by a guard, William E. Rambo, stated the following: "While on duty, as a Prison Guard at Delaware County Prison, Thornton, Pa., on 22, January 1970 at about 9:00 P.M., a report was received by prison personnel that a prison break was about to be attempted in cell-block `A'. Lt. Joines, the Prison Officer in charge, Guard Samuel LaSpina and myself were dispatched to cell-block `A' and began a systematic check of the cells within this block. It was during this cell-check that inmate David Tyrell sic was seen emerging from a cell assigned to inmate Ray Crisp¹ which is located on the upper tier of the block. Inmate Tyrell's assigned cell was on the lower tier of this block. Inmate Tyrell was covered with what appeared to be dried mortar and particles of stone and dust. On checking this cell #33, Guards found a hole dug in the cell-wall.

All the above was reported to the Warden of the Prison." (Emphasis added)

Another affidavit, that of Samuel LaSpina, states as follows:

"While on duty 22 January 1970 at about 9:00 P.M., Lieutenant Joines, the Prison Officer in charge called me and Prison Guard Rambo to go with him to cell-block `A', because of reports of hearing unusual noises which sounded like banging and hammering on a wall.

"Lt. Joines, Guard Rambo and myself entered cell-block `A'. We split up and I went to the upper tier on the right side of the block. As I was nearing cell 33 inmate Tyrell was coming out of this cell brushing off dust and debris from his clothing. He was the only person in this cell. I asked inmate Tyrell what he was doing in cell 33 that belonged to inmate Ray Crisp. (Inmate Tyrell's cell was on the first floor or lower tier.) Inmate Tyrell said he came to the upper tier to get a cigarette, as he was leaving cell 33 I looked around inside this cell and found a hole being dug in the wall. (Emphasis added.)

"I immediately called Lt. Joines and Guard Rambo to observe and examine same.

"All the above was reported to the Warden of the Prison."

After this apparent connection of Tyrrell with Crispt in an attempted prison break, Tyrrell was charged with attempted prison breach,² classified as a security risk, and subsequently transferred from Delaware County Prison to the State Correctional Institution at Graterford, where he was placed in a punitive segregation unit.

Robert L. Johnson, Superintendent of the Graterford State Correctional Institution, filed an affidavit as follows: "David Tyrell, 40089, while confined at the Graterford State Correctional Institution was placed in the maximum security cell block because he had charges of escape while in the Delaware County Prison and subsequently committed violations against the institutional rules and regulations.

"Note: David Tyrell was received in the Graterford Institution as an untried case from Delaware County."

While it is not entirely clear from the record, we assume, in the absence of any proof or suggestion to the contrary and in view of Superintendent Johnson's affidavit, that it was he who caused Tyrrell to be placed in punitive segregation at the Graterford State Correctional Institution. It does not appear that Superintendent Johnson, or Warden Gable or Warden Zigler of the Delaware County Prison had the benefit of the testimony taken at any hearing respecting Tyrrell's offenses or that the Superintendent of Graterford or either of the wardens was present at any of the hearings. See note 8, infra. These are matters which should be inquired into upon remand.

Tyrrell has filed a countervailing affidavit in which he states in substance that he was not taking part in a prison break, that he had gone into Crispt's cell to get a cigarette, and that he was not guilty of any violation of institutional rules and regulations. He asserts that there was no basis for the decision to classify him as a security risk and transfer him to Graterford and that such decision was arbitrary, capricious, and motivated by a prejudice against him arising out of his having been charged with shooting a police officer, thereby depriving him of due process under the Fourteenth Amendment. Tyrrell also claims that he was subjected to cruel and unusual punishment violating the Eighth Amendment and deprived of his First, Fifth, and Fourteenth Amendment rights due to the following circumstances: he was held in punitive segregation for nine months;³ kept in a cell with inadequate heating and allowed out only for meals, showers and short exercise periods; compelled to wear prison coveralls; had his hair cut short; was not allowed to attend prison religious services; was denied medical treatment in respect to his deficient eyesight in that his prescription for corrective glasses was lost and he has not received such glasses; was not allowed to work, which prevented him from buying materials needed for his legal papers at the prison canteen; was not permitted to have his legal papers typed; was not allowed to have his mail registered, thereby denying him proof of mailings; and could not have his legal documents notarized in his presence, denying him knowledge that they were in fact notarized.

The Attorney General of Pennsylvania moved to dismiss on the ground that Tyrrell had failed to state a cause of action upon which relief could be granted. The trial court granted the motion and dismissed the complaint. The appeal at bar followed.

Tyrrell's complaint is conclusory in many of its allegations. But "a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 2A Moore's Federal Practice, ¶ 12.08 at 2271-74 (1968). (Emphasis in original). In the recent case of Gray v. Creamer, 465 F.2d 179 (3 Cir.1972), this court noted that a motion to dismiss a prisoner's civil rights complaint for failure to state a claim upon which relief can be granted is subject to a very strict standard. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), was cited, in which the Supreme Court reversed a district court grant of such a motion, which grant had been affirmed by the Court of Appeals on the ground that prison officials are vested with wide discretion in disciplinary matters. The Court said: "Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46 ,78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Haines v. Kerner, supra at 520-521, 92 S.Ct. at 595.

In the case at bar we cannot find that all of Tyrrell's allegations fail to meet the standard enunciated in Haines v. Kerner, supra. It is true that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). The well-established rule is that discipline reasonably maintained in state prisons is not under the supervisory direction of Federal courts. Ford v. Board of Managers of the New Jersey State Prison, 407 F.2d 937 (3 Cir. 1969); Gurczynski v. Yeager, 339 F.2d 884 (3 Cir. 1964); United States ex rel. Keen v. Mazurkiewicz, 306 F.Supp. 483 (E.D.Pa.1969). Nor is a prisoner entitled to his choice of prison accommodations. Fidtler v. Hendrick, C.A. No. 64-1415 (E.D.Pa. Nov. 6, 1969); Lipscomb v. Stevens, 349 F.2d 997 (6 Cir. 1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966); Holland v. Ciccone, 386 F.2d 825 (8 Cir. 1967), cert. denied, 390 U.S. 1045, 88 S.Ct. 1646, 20 L.Ed.2d 307 (1968). "Some deprivations are a necessary and expected result of being an inmate of a penal institution, which institution must provide for the custody, maintenance, discipline and optimistically, rehabilitation of those who have violated the laws of the...