author: CALDWELL, District Judge.

text:
    Carol BALLIET, John J. Balliet, Plaintiffs, v. Lucille B. WHITMIRE, George Gensemer, Kent Shelhamer, Joan M. Mosier, Eugene Hartman, Gregory Haas, Harold Crozier, County of Columbia, Linda Page, Children and Youth Services, Defendants.
    Civ. A. No. 85-1091.
    United States District Court, M.D. Pennsylvania.
    Jan. 8, 1986.

      Michael R. Lynn, Bloomsburg, Pa., for plaintiffs.
    Joel M. Ressler, Deputy Atty. Gen., Harrisburg, Pa., Joseph Goldberg, Margolis, Edelstein, Scherlis, Sarowitz, & Kraemer, Philadelphia, Pa., for Whitmire, Gensemer, Shelhamer, Mosier, Hartman, Haas, Crozier, Cty. of Columbia, Page, Children & Youth.
    Cody H. Brooks, Henkelman, Kreder, O’Connoll & Brooks, Scranton, Pa., Alvin J. Luschas, Solicitor for Columbia County, Bloomsburg, Pa., for defendant County of Columbia.
    J. Brian Johnson, Allentown, Pa., for Linda Page.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

Defendants, Eugene Hartman and Harold Crozier, employees of the Commonwealth of Pennsylvania, have filed a motion to dismiss plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b). Defendants, Columbia County, its Commissioners, Lucille B. Whit-mire, George Gensemer and Kent Shelhamer, the Children and Youth Services Agency of Columbia County (CYS), its director, Joan M. Mosier, and Linda Page, an agency employee, and Gregory Haas, a former employee, have also moved to dismiss plaintiffs’ complaint. Plaintiffs are Carol Balliet and her husband, John J. Balliet. Their complaint, brought pursuant to 42 U.S.C. § 1983, alleges that certain actions taken by defendants in connection with the latters’ investigation of a day care center at plaintiffs’ home violated plaintiffs’ due process and fourth amendment rights, and other unspecified “civil” and “constitutional” rights. As will be made clear in our discussion this matter cannot proceed on this woefully inadequate document.

II. Background.

Accepting as we must in the context of these motions the allegations of the complaint, the background of this litigation is as follows. For approximately one year plaintiffs participated in a CYS program which placed foster children under the plaintiffs’ care. Carol Balliet also operated an informal baby-sitting service in her home. (Complaint, 1112). Apparently, at some point in time the Balliets indicated that they no longer wished to accept foster children from CYS. Plaintiffs allege that, in retaliation for this decision, defendant Haas gave “false and fraudulent information” to the Pennsylvania Department of Public Welfare (DPW). The nature of the information is unspecified but it can be inferred from subsequent allegations that Haas reported that the Balliets were sexually abusing the children placed in their care. (¶ 16). Haas’s charges led to a “prolonged and illegal investigation” by defendant Hartman which was subsequently illegally reopened and extended beyond time limitations set by state law. Plaintiffs claim a violation of due process of law in connection with this conduct.

According to the complaint the DPW investigation resulted in other alleged irregularities. Hartman instigated another DPW investigation centering on the Balliets’ sexual abuse of two of their own children. (Ml 21, 24). Further, he refused to permit plaintiffs’ attorney to be present during the investigative interviews conducted with the children. (1125). During one interview conducted in the presence of plaintiffs’ counsel, he used “profane and vulgar language.” (H 32). He also threatened to remove one of the plaintiffs’ minor children from the home. (¶ 28). Finally, Hartman’s conclusion that plaintiffs had engaged in sexual abuse of children is alleged to be violative of due process (¶ 20). Significantly, however, no criminal charges were ever brought against the Balliets because the Columbia County district attorney, after referral of the charges to him, decided that they were baseless. (II43).

Without placing responsibility explicitly upon any particular defendant, plaintiffs also complain that psychological evaluations they and the children underwent during the investigations were never considered in any determination of the validity of the charges. In some instances the evaluations were never made or, if made, never sent to DPW for consideration in violation of the procedure established for the investigation. (MI 22, 23).

In apparent connection with the investigation or investigations, defendant Crozier, also employed by DPW, conducted “broad unannounced illegal inspections and searches that went well beyond the scope of propriety” at plaintiffs’ residence, (U 41), in violation of their due process rights. Similarly, defendant Haas, in addition to supplying the initial allegations against the Balliets, also engaged in unannounced and improper inspections of the Balliets’ home. (If 37). He would harass Carol Balliet and insult the children in her care. (Id.).

During the investigation of the Balliets, they requested, through their attorney, that the Commissioners invoke state law and obtain information from DPW concerning the competence of Haas but they refused to do so. (MI 34, 35). Commissioner Whitmire specifically declined to become involved at the beginning of the investigation. (¶ 33). The Commissioners also “impliedly refused” plaintiffs’ minor child legal representation at the interview by initiating proceedings in court to block such representation. (1130). The Balliets also claim that a policy of CYS permitted the illegal searches, and that the Commissioners “by extension” are responsible for the policy along with CYS. Finally, plaintiffs assert that the Commissioners supervised CYS’s improper training of Haas who was not qualified for the assignment given him and that the Commissioners had a policy of using inappropriate personnel hiring criteria. (1144).

The claims against CYS echo those made against the Commissioners. Plaintiffs claim CYS had a policy against permitting counsel at the interviews on behalf of themselves, (1126), or their minor child. (1130). CYS had implicitly approved the searches of the Balliets’ home and the searches constituted a policy of the agency for which it and its supervisor, defendant Mosier, are responsible. (1139). Finally, CYS had improperly trained Haas and had used inappropriate hiring criteria. (1144).

It is alleged that defendant Mosier falsely told the Balliets that they did not need a license for their baby-sitting service and they relied upon this to their detriment when the state investigated them, in part, for not having a license. (1117). Mosier was also involved in setting CYS’s policy on the searches of the Balliets’ home, (1139), as well as its hiring and training policy.

The only allegation against Linda Page, an employee of CYS, is that she withheld information from the plaintiffs concerning a certain foster child that was placed in their care. The child had been sexually abused before being placed in the Balliets’ home but they had never been informed of this. Subsequently, DPW identified the child as abused by the Balliets even though Page and CYS knew that the child was previously a victim of sexual abuse. (¶ 18).

Columbia County is named in the complaint as being represented by Mosier when she deliberately misled the plaintiffs concerning the need for a license, (1Í17), and is charged with responsibility for improper hiring and training policies. (¶ 24).

The complaint does not allege a general conspiracy by all the defendants acting in concert to deprive plaintiffs of their constitutional rights. Rather, the individual defendants are alleged to have acted with the implied authorization of their respective agencies and within their own sphere of authority. Hence, separate causes of action are alleged against different defendants.

III. Discussion.

A. Standard of Review.

In ruling upon the motions to dismiss in this civil rights action we will rely upon the standard of review set forth in Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir.1984) as follows:

[W]e must accept all of the well-pleaded allegations of the complaint as true and construe the complaint liberally in the light most favorable to plaintiff, Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977). We should not [dismiss] at the pleadings stage, especially ... a civil rights action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Scher v. Board of Education, 424 F.2d 741, 744 (3d Cir.1970).
To establish a valid claim under § 1983, a claimant must show: (1) that the conduct complained of was committed, by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

Id. at 290-91 (brackets added).

We will also bear in mind that “it is settled in this circuit that a civil rights complaint under § 1983 must set forth with factual specificity the conduct of defendants alleged to have harmed the plaintiff.” Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir.1985); Serge v. City of Scranton, 610 F.Supp. 1086 (M.D.Pa.1985). We turn now to an examination of the complaint. In doing so we note that the claims can be broken down as follows.

B. Various Due Process Claims.

Haas is alleged to have violated plaintiffs’ due process rights by communicating false and fraudulent information to DPW, resulting in the investigation of the Balliets for child abuse. Other defendants are charged with liability for his conduct by way of “implied authorization.” Defendants contend, no doubt as a result of the loose structure of the complaint, that plaintiffs have not identified a liberty or property interest violated by Haas’s alleged conduct. We believe, however, as plaintiffs urge upon us, that the complaint can fairly be read to claim that, as a result of the adverse publicity generated by the charges, Carol Balliet can no longer provide a babysitting service in her home. Her chosen occupation has now been foreclosed to her because of the stigmatizing effect of state action.

Certainly, the right “to engage in any of the common occupations of life” is a liberty interest protected by the fourteenth amendment. Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548, 558 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399,' 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923)). Additionally, Haas’s statements that the Balliets were engaging in the sexual abuse of children was a “stigmatizing” charge of immorality within the meaning of Roth, supra. But Haas’s conduct is not actionable as a due process violation for two reasons. First, Haas did not accompany his statements with his closure of plaintiffs’ babysitting service. Second, the complaint does not allege that he disseminated his charges to the public.

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) makes clear that some change in legal status must accompany the defamation before the right to due process is implicated. In Paul, plaintiff filed a section 1983 action against two police chiefs who published his mug shot and name in a flyer identifying active shoplifters to merchants in their respective jurisdictions. At the time of the publication of the flyer plaintiff’s guilt or innocence on the shoplifting charges had not yet been determined but the charges were subsequently dropped. Plaintiff’s employment as a newspaper photographer was unaffected by the flyer although his employer found out about it and questioned him concerning the incident. Plaintiff alleged in his complaint that his future employment prospects were adversely affected by dissemination of the flyer. Nevertheless, the Supreme Court upheld the district court’s dismissal of the complaint. Noting that if a private individual had made the same allegations, plaintiff would have had only a state claim for defamation, the Court held that no liberty or property interest protected by the due process clause was implicated by the defendants’ conduct. Reviewing previous cases in which due process claims had been asserted in a variety of contexts involving rights said to have been affected by state action, the Court stated that:

In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment____ [Davis’s] interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law____ And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any “liberty” or “property” recognized by state or federal law, nor has it worked any change of respondent’s status as theretofore recognized under the State’s law.

Id. at 711-12, 96 S.Ct. 1165-66, 47 L.Ed.2d at 420 (brackets added).

These principles apply here. Haas merely communicated charges to DPW. While just as in Paul, the charges may have been defamatory, they were not accompanied by a change in plaintiffs’ status under state law. Haas did nothing, nor could he have, to remove officially from state recognition and protection Carol Balliet’s operation of a baby-sitting service. Defamation alone, even if accompanied by indirect adverse effects upon future occupation or employment, is not a constitutional tort. See Paul, supra; Mosrie v. Barry, 718 F.2d 1151 (D.C.Cir.1983). But see Logical Minicomputers of Erie, Inc. v. Fox, 602 F.Supp. 819 (W.D.Pa.1985); Petrone v. City of Reading, 541 F.Supp. 735 (E.D.Pa. 1982). Plaintiffs have not presented us with any other claimed violations of a liberty or property interest under state law which have arguable merit.

The charges must also be disseminated to the public. If not, the due process claim is fatally defective. Scamati v. Washington, 599 F.Supp. 1554 (M.D.Pa. 1985). “Unpublicized accusations do not infringe constitutional liberty interest, because, by definition, they cannot harm ‘good name, reputation, honor, or integrity.’ ” Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1101 (9th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982) (quoting Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1975)). See also Pealer v. Secretary of Agriculture, 622 F.Supp. 1039 (M.D.Pa. 1985). As stated by the court in Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983), in dealing with factual circumstances similar to the case at bar:

[Wjhatever else may be necessary to state a section 1983 claim for defamation by a state official, mere defamatory publication of suspicion of child neglect or abuse to agencies authorized by law to receive such reports is not sufficient publication for the purpose of stating such a claim.

Id. at 1109 (brackets added).

Based upon the foregoing, we conclude that Haas’s conduct in communicating his allegedly defamatory comments of child sexual abuse to DPW cannot form the basis of a civil rights claim against him or any other defendant. Normally, we would be inclined to grant leave to amend on the public dissemination element of the cause of action but, because plaintiffs could never allege that Haas officially caused an alteration in their status under state law, we will dismiss this claim outright. Leave to amend should be liberally granted. When it is clear, however, that the amended complaint would not survive a motion to dismiss, we are not required to allow such a futile attempt. See Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983).

Plaintiffs also claim that due process was violated when defendant Hartman, allegedly in violation of state law, illegally prolonged an investigation and reopened it after it was closed. Aside from state law violations, no other illegal or unconstitutional activity is articulated. An essential element of a federal civil rights claim is the deprivation of a right conferred by the federal constitution or federal law. A state law violation is not sufficient. Braderman v. Pennsylvania Housing Finance Agency, 598 F.Supp. 834, 840 n. 3 (M.D.Pa.1984). Plaintiffs assert this “illegal” investigation violated their right to engage in a chosen occupation. Based upon the foregoing discussion concerning Haas’s conduct, we reject a civil rights claim based upon the pleaded allegations.

Plaintiffs allege that Hartman was responsible for the anonymous tip resulting in a DPW investigation of their sexual abuse of two of their own children, and that DPW initiated this investigation in a malicious manner. These allegations, standing alone, fail to state a due process claim. The motive with which a state actor conducts himself is irrelevant to a civil rights claim. Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir.1984); Shabazz v. Odum, 591 F.Supp. 1513 (M.D.Pa.1984). “[CJonduet by an individual acting under color of law which is designed to harass and embarrass does not constitute a denial of a cognizable ‘liberty’ or ‘property’ interest in a claim brought under section 1983.” Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1433 (9th Cir.1985) (brackets added). Additionally, plaintiffs have not even alleged that Hartman made the anonymous tip knowing it to be untrue. Even if they could make such an allegation, our discussion above concerning a similar claim against Haas forecloses any claim against Hartman based on these allegations. Thus, no opportunity shall be given to amend this claim.

Plaintiffs also assert that Hartman’s conclusion that the sexual abuse charges were well founded violated their due process rights. No allegation is made that Hartman believed these charges to be false or that he knowingly relied upon false information in making the charges. No allegation is made that he disseminated these charges to the public or, as noted by our discussion above, officially altered plaintiffs’ legal status under state law in conjunction with the charges. This claim too must be denied without leave to amend.

Plaintiffs also claim a due process violation resulting from defendant Page’s decision not to inform them that a child placed in their care had a history of prior sexual abuse. This child was identified in the DPW Commonwealth Court complaint as one of the children sexually abused by the Balliets. The withholding of this information constitutes the due process violation. Accepting this allegation as true, the claim would fail as a matter of law because the requisite causal link between Page’s conduct and any alleged due process violation is absent. See Estate of Bailey v. County of York, 768 F.2d 503 (3d Cir. 1985). The child is identified as only one of the children named in the Commonwealth Court complaint as being sexually abused. DPW would have thus sought the injunction in any event on behalf of the other children. Additionally, since ultimately the Columbia County district attorney decided not to file criminal charges against the Balliets, the withholding of information during the investigation by DPW could not have violated due process in connection with these potential criminal proceedings. Page will be dismissed from this case since these are the only allegations against her. Moreover, we have concluded this conduct cannot form the basis of any claim against any other defendant.

Plaintiffs also complain about the inadequate use of a procedure to make psychological evaluations of the children and the Balliets. The results were to be used in evaluating the charges. Apparently, the evaluations would have been favorable to the Balliets because they complain that in some instances the evaluation was not conducted and in others, while it was conducted, it was never forwarded to DPW for consideration.

It is difficult to perceive from these allegations the nature of the claim. There is no constitutional right to compel a state agency to follow its own procedures. Moreover, the investigation never resulted in criminal charges against the plaintiffs. Since the primary purpose of due process of law is to protect against erroneous decisions, Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), and since plaintiffs are obviously not claiming that the decision not to prosecute them was erroneous, this claim must be dismissed unless plaintiffs can amend their complaint to assert in some specific fashion how due process was violated by the failure to use the psychological tests.

Defendant Mosier is accused of falsely informing plaintiffs that they did not need a state license to operate their baby-sitting service. This allegation, standing alone, is not actionable. While Mosier may have made the statement knowing it to be untrue, there is no apparent causal link between Mosier’s conduct and the resulting investigation. Plaintiffs have not set forth when Mosier’s representation was made and why it was made. Since plaintiffs were ultimately not, charged with any criminal wrongdoing, this claim must fail unless plaintiffs can amend their complaint to show conduct violative of constitutional rights.

Plaintiffs claim that Hartman’s threat to remove one of their minor children from their home was a blatant violation of their civil rights.

[T]he “liberty” protected by the due process clause of the Fourteenth Amendment includes the right to the custody of one’s minor children and ... it would be a deprivation of that liberty without due process of law for persons acting under color of state law permanently to separate the children from their parents without notice and hearing.

Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir.) (brackets added), cert. denied sub nom., Ellis v. Judge of the Putnam Circuit Court, 459 U.S. 1069,103 S.Ct. 488, 74 L.Ed.2d 631 (1982).

Hartman, however, did not remove the child from the household so that there was no actual violation of plaintiffs’ liberty interest. At most his threat was an intentional infliction of emotional distress which does not constitute a section 1983 claim. See Brainerd v. Potratz, 421 F.Supp. 836 (N.D.Ill.1976), affd mem., 566 F.2d 1177 (7th Cir.1977); Dawes v. Philadelphia Gas Commission, 421 F.Supp. 806 (E.D.Pa. 1976).

C. The Sixth Amendment Claim.

Plaintiffs allege that Hartman violated their sixth amendment right to confront the witnesses against them when he interviewed the children in the absence of their attorney. Plaintiffs have cited no authority in support of their claim. We conclude that plaintiffs’ sixth amendment right was not violated by Hartman’s refusal to conduct his investigation in the presence of plaintiffs’ counsel. Confrontation does not include investigatory stages.

D. Fourth Amendment Claim.

Plaintiffs accuse Haas and Crozier of conducting illegal searches of their home, unrequired by any need of the foster child program. The due process clause of the fourteenth amendment protects persons from unreasonable searches in violation of the fourth amendment. Gillard v. Schmidt, 579 F.2d 825 (3d Cir.1978). Defendants object that the allegations are too vague for a civil rights complaint. We agree. If plaintiffs intend to pursue this matter these conclusional allegations should be amended to set forth the dates, times, and scope of the searches.

E. The Alleged Liability of CYS And the Commissioners.

Plaintiffs claim that CYS refused to allow them legal representation at the interviews. Based upon the foregoing discussion in Part III C of this memorandum, this claim must be rejected.

Haas’s searches are alleged to be pursuant to a policy of CYS and “by extension” of the Commissioners. Defendants complain that no facts have been alleged to support the conclusional allegation of an existing CYS policy concerning inspections and searches and that the Commissioners, in any event, cannot be found liable under a respondeat superior theory.

We disagree as to the conclusional nature of the allegations concerning policy. The complaint can fairly be read to assert that CYS has a policy in connection with its responsibilities of overseeing foster homes of conducting searches of the homes in an unreasonable manner, unrelated to the agency’s duties of seeing that children placed in the homes are cared for properly. Under the circumstances, this is an adequate statement of the claim especially when it is considered that plaintiffs will be required additionally to plead specifically the time and manner of the searches.

The County’s and Commissioners’ liability based upon this alleged CYS policy is clearly, as pleaded, only one for respondeat superior. This theory cannot support a civil rights claim. Estate of Bailey v. County of York, 768 F.2d 503 (3d Cir. 1985). Plaintiffs shall amend their complaint, if they can, to set forth facts showing County or Commissioner direction of CYS, actual knowledge of the alleged policy, or acquiescence on the part of the County and its Commissioners. See Fialkowski v. Shapp, 405 F.Supp. 946 (E.D.Pa.1975).

Plaintiffs assert that CYS had a hiring policy which resulted in inappropriate choices for the position held by Haas. Mosier was responsible for the CYS hiring process and the Commissioners “further supervised” it. Additionally, the training standards employed by CYS constituted a policy of that agency which violated plaintiffs’ constitutional rights.

These allegations should be amended in light of our discussion above concerning the plaintiffs’ claims for due process violations, and our discussion below concerning the inadequacy of the claims for verbal harassment. The only policies or procedures concerning hiring or training that survive these motions to dismiss concern those involved with inspections and searches. We also agree with defendants that the policies are not otherwise pleaded specifically enough. Recognizing that official agency policy may be inferred from informal acts or omissions of agency supervisory personnel, Estate of Bailey, supra, we direct plaintiffs to plead the hiring and training policies specifically.

The Commissioners’ “further supervision” of the CYS hiring process, in light of our discussion above, is insufficiently pleaded to impose liability on the Commissioners. Plaintiffs are given leave to amend their complaint to attempt to meet the standard of Fialkowski, supra.

F. Invasion of Privacy.

Plaintiffs have also claimed that defendants have violated a generalized right to privacy. Without a more specific contention, this claim must fail. See Paul, supra.

G. Claims Amounting To No More Than State Tort Claims.

Hartman is alleged to have used profane and vulgar language during one investigative interview. Verbal abuse is not a civil rights violation. See Hodgin v. Agents of Montgomery County, 619 F.Supp. 1550 (E.D.Pa.1985); Dawes, supra. We will issue an appropriate order.

ORDER

AND NOW, this 8th day of January, 1986, upon considerations of defendants’ motions to dismiss, it is ordered as follows:

1. Plaintiffs’ claims against defendant, Linda Page, are dismissed and Linda Page is hereby dismissed from this action.
2. Plaintiffs’ claims based upon due process violations arising from Haas’s conduct in supplying false and fraudulent information to the Department of Public Welfare are hereby dismissed.
3. Plaintiffs’ claims against all other defendants based upon Haas’s conduct described in paragraph 2 above, whether based upon personal involvement or promulgation of policy concerning the conduct or upon hiring and training procedures allegedly not responsive to such conduct are hereby dismissed.
4. Plaintiffs’ claims based upon verbal abuse, interference with sixth amendment rights, and family relations, and defendant Hartman’s determination that they were engaging in child abuse are hereby dismissed.
5. In all other respects, plaintiffs’ complaint is hereby dismissed except that plaintiffs are hereby given leave to file a second amended complaint within twenty (20) days of the date of this order setting forth such claims as may be pursued in light of the accompanying memorandum. Any amended complaint shall be divided into separate Counts and shall fully comply with the Federal Rules of Civil Procedure and with decisional law.

      . Plaintiffs’ original complaint was filed on July 29, 1985. They filed an amended complaint on October 25, 1985 but in the meantime the defendants had filed motions to dismiss the original complaint. The amended complaint is identical to the original one. The county defendants filed a second motion to dismiss and memorandum in support thereof raising the same objections they did to the original complaint. The Commonwealth defendants did not file a second motion. Based upon the identity of pleadings and issues, we will treat the latter defendants’ motion in connection with the amended complaint. Hereafter, references to the complaint will be to the amended complaint.

      . We assume that the Balliets’ participation in the program began approximately in April of 1984 because • the action commenced by the Pennsylvania Department of Public Welfare, seeking to enjoin the Balliets from using their home as a day care center, was filed on April 15,1985. (Complaint, ¶ 11).

      . Setting forth the precise sequence of events has been hampered by plaintiffs’ failure to allege when events happened except for the filing of the action referred to in footnote 2.

      . The entire complaint is prolix, suffering from lengthy, complicated, and unnecessary sentence structure in violation of Fed.R.Civ.P. 8(e) requiring that each "averment of a pleading ... be simple, concise, and direct." Allegations against different defendants are also commonly set forth in the same sentence, making it difficult to discern the claim or claims against each defendant. For the reasons discussed later in this memorandum plaintiffs will be required to amend their complaint. When they do so, they will also be required to divide the complaint into separate counts, setting forth "a short and plain statement of the claim” against each defendant. Fed.R.Civ.P. 8(a)(2).

      . The investigation had apparently been closed at some point.

      . Our conclusion is not contrary to McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3d Cir.1978). In that case, the Third Circuit did conclude that future employment or occupation was a liberty interest protected by due process. But as stated in McKnight the court "was called upon to analyse the contours of the right to due process of one who has been discharged from public employment." Id. at 1233. The discharge was accompanied by stigmatizing charges of intoxication against the plaintiff. The case was thus clearly controlled by Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), both relied upon by the court in McKnight, and whose validity was upheld as “re rationaliz[ed]," see Mosrie, supra, 718 F.2d 1151, 1162 (Ginsburg, J., concurring), by the Court in Paul, supra. McKnight actually turned on whether the district court had correctly dismissed the complaint because it had concluded that as a matter of law the charges were not stigmatizing. Thus, the court in McKnight was not faced with the issue directly presented in the instant case.

      . DPW did seek an injunction in the Pennsylvania Commonwealth Court prohibiting the Balliets from using their home as a day care center because they did not have a license and because of the alleged abuse of the children in their care. Certainly, there could be no due process violation arising from the court proceedings since DPW could not have acted unilaterally in obtaining the injunction. It still had to present its claim for relief to the court and plaintiffs would have received due process in those proceedings.

      . U.S. Const.Amend. VI provides, in pertinent part, that in "all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____”

      . An additional issue in connection with the policy claims is whether plaintiffs are merely relying upon the incident involving themselves to establish the governmental policy. If so, the claim may be defective. See Oklahoma City v. Tuttle, — U.S.-, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Estate of Bailey v. County of York, 768 F.2d 503 (3d Cir. 1985).

      . Plaintiffs also allege that the County Commissioners refused to investigate DPW files relevant to Haas’s competence after plaintiffs requested that they do so. Defendant Whitmire was named specifically as declining to become involved in the beginning of the investigation of the Balliets. As we read the statutory provision relied upon by plaintiffs, 11 P.S. § 2215(a)(ll) (Purdon Supp.1985), that Section does not impose any duty upon the Commissioners to investigate Haas upon the request of any individual. Rather, the Commissioners may, at their own discretion, investigate an employee. This cannot form the basis of any claim against the County or its Commissioners. Additionally, indifference on the part of state actors to the plaintiffs’ problems does not give rise to a civil rights claim. Hodgin v. Agents of Montgomery County, 619 F.Supp. 1550 (E.D.Pa.1985). The conduct may be relevant, however, to the claims based upon unconstitutional searches and inspections.

      . Plaintiffs’ brief was of little assistance to the court in identifying, discussing and resolving the variety of issues addressed herein.


source: Caselaw Access Project

author: JOSÉ A. CABRANES, District Judge:

license: Public Domain

text:
    Hurlburt DOLPHIN v. John MANSON, et al.
    Civ. No. H-82-203 (JAC).
    United States District Court, D. Connecticut.
    Jan. 8, 1986.

      Edward F. Hennessey, Robinson & Cole, Hartford, Conn., for plaintiff.
    Cornelius F.- Tuohy, Asst. Atty. Gen., Hartford, Conn., for defendants.
   RULING ON MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

This action by a state prisoner against state prison officials is before the court on the defendants’ motion for summary judgment.

Hurlburt Dolphin, an inmate at the Connecticut Correctional Institution at Somers, Connecticut (“CCI-Somers”), commenced this action on February 23, 1982, with the filing of a complaint against John R. Manson, Commissioner of Correction for the State of Connecticut; Raymond M. Lopes, Deputy Commissioner of Correction; Carl Robinson, Warden of CCI-Somers; and Steven A. Tozier, a correctional lieutenant at CCI-Somers with responsibility for the prison’s administrative segregation unit.

The plaintiff contends that the defendants deprived him of his rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution by transferring him from the New Haven Community Correctional Center (“NHCCC”) to CCI-Somers during his pre-trial detention on robbery charges and by placing him in the administrative segregation unit, known as “F-Block,” at CCISomers for 415 days preceding his conviction on those charges. He further contends that the defendants violated his due process rights as well as his Eighth Amendment right to be free from cruel and unusual punishment by continuing to confine him in the administrative segregation unit for an additional 490 days following his conviction.

The defendants assert in support of their motion for summary judgment that the plaintiff has failed to state a claim upon which relief can be granted under the United States Constitution. In addition, the defendants assert that, even assuming for the argument that the plaintiff was deprived of certain constitutional rights, they are immune from monetary liability because those rights were not “clearly established” under federal or state law. See Defendants’ Memorandum of Law in Support of Motion for Summary Judgment (filed July 13, 1985) (“Defendants’ Memorandum”) at 6-8. The court having heard oral argument on the defendants’ motion for summary judgment, and the parties having thereafter submitted revised statements of facts pursuant to Rule 9(c), Rules of Civil Procedure (D.Conn.), the defendants’ motion is now ripe for decision.

I. Background

The plaintiff is currently serving a term of imprisonment at CCI-Somers of not less than nine years and not more than 18 years for the crime of robbery in the first degree. Defendants’ Revised Statement Under Rule 9(c) (filed Aug. 23, 1984) (“Defendants’ Statement”) at ¶ 1. This sentence was imposed on the plaintiff by the Connecticut Superior Court, Judicial District of Hartford/New Britain, on October 28, 1982. Id. The plaintiff’s criminal record contains earlier convictions for aggravated assault, assault with intent to kill, carrying a dangerous weapon and robbery in the first, second and third degrees. Id. at ¶ 7.

The plaintiff was arrested on March 22, 1981, on charges of robbery, larceny and possession of a sawed-off shotgun. Affidavit of Raymond M. Lopes (filed June 28, 1984) (“Lopes Affidavit”) at 113(B). He was subsequently committed to NHCCC for failure to post the bond set by the court on those charges. Id. at 11 3(C). The state contends that the plaintiff escaped from custody while making a court appearance on April 21, 1981, and that he committed “several serious and violent crimes” before his recapture on July 2, 1981. Defendants’ Statement at Ml 10-12. The plaintiff, while not admitting the state’s contentions, concedes that he was convicted of having escaped from custody on April 21, 1981; of having committed manslaughter on April 29, 1981, and of having participated in a robbery on May 27, 1981. Plaintiff’s Revised Statement Pursuant to Local Rule 9(c) (filed Sept. 10, 1984) (“Plaintiff’s Statement I”) at MI 1, 4, 5. See also Affidavit of Lucille Vezina (filed June 28, 1984), Exhibits A (sentence imposed for robbery committed May 27, 1981), C (sentence imposed for manslaughter committed April 29, 1981), D (sentence imposed for escape from custody and assault on police officer committed April 21, 1981).

The plaintiff was transferred from NHCCC to CCI-Somers shortly after his return to custody on July 2, 1981. Defendants’ Statement at ¶ 15. The defendants contend that the plaintiff was transferred to CCI-Somers, the state’s only adult male maximum-security prison, because his escape and subsequent criminal activity demonstrated that he “posed an unreasonable security risk at NHCCC.” Id. at ¶ 14. The plaintiff denies that he represented a security risk at NHCCC and contends that correctional officials deprived him of due process by transferring him to CCI-Somers without a hearing. Plaintiff’s Statement I at H 8.

The plaintiff was assigned upon his arrival at CCI-Somers to the quarantine/orientation housing unit, known as “G-Block,” pending an investigation of his background and an assessment of whether he required any special programs or custodial safeguards. Defendants’ Statement at 1117. The defendants contend that the plaintiff was then placed in the protective custody unit, or “E-Block,” as a result of the presence at CCI-Somers of the three Clinkscales brothers. The defendants assert that the Clinkscales brothers, who “were considered dangerous individuals and had a good many friends among the other inmates at CCI-Somers,” held the plaintiff responsible for a 1974 fire at the Bridgeport Community Correctional Center that injured one of the brothers and “had threatened to retaliate against [the plaintiff].” Id. at Ml 18-21. The defendants contend that the plaintiff was transferred, at his own request, from the protective custody unit in E-Block to the administrative custody unit in F-Block on August 31, 1981. Id. at Ml 24-25.

The plaintiff appeared before the CCISomers Classification Committee on September 2, 1981, and asked to be released to the general prison population because he believed that he no longer required special protection. Id. at U 26. The committee conducted a hearing into the plaintiff’s request on September 8, 1981. Id. at 1128. At the hearing, the plaintiff refused to answer when asked whether he had any problem with the Clinkscales brothers. Id. at If 29. The committee recommended at the conclusion of the hearing that the plaintiff remain in administrative segregation in F-Block because his release to the general population.“would create an unreasonable threat to the safety and welfare of the prison community.” Id. at 28.

The plaintiff concedes that he “had a problem” with the Clinkseales brothers in 1975 but contends that he had no such problem in 1981 or thereafter. Plaintiffs Statement I at 14. The plaintiff first complains that “nobody talked to him or to the Clinkseales [brothers] while he was a pretrial detainee” to determine whether his release from administrative segregation would disrupt the general prison population, id., but later concedes that he was given a hearing on his request for release to the general population and that he refused to discuss his relationship with the Clinkseales brothers at the hearing. Id. at ¶ 20. The plaintiff apparently made no effort to call any witnesses to testify at the hearing in his behalf. The plaintiff’s eon-, tinued confinement in administrative segregation was reviewed every 30 days by the Special Offenders Classification Committee, which was chaired by Lieutenant Tozier, and every 60 days by the overall Classification Committee and by Commissioner Manson or Deputy Commissioner Lopes. Plaintiff’s Statement of Facts Which Are or May Be in Dispute (filed Sept. 10, 1984) (“Plaintiff’s Statement II”) at 1HI 27-28.

The parties do not dispute many of the conditions that prevail in the F-Block administrative segregation unit at CCI-Somers. Inmates are housed in single-man cells that measure approximately 6 feet by 9 feet and that are equipped with a bed, toilet, sink with hot and cold running water, a desk with desk lamp, and a stool. Defendants’ Statement at ¶ 30. Inmates are allowed to have radios and television sets. (The plaintiff had both items during his confinement at F-Block.) Id. Inmates are provided with clothing and basic personal-grooming items, such as soap, towels, toothpaste, toothbrushes and toilet paper, and with the same food as is provided to the general population. Id. at ¶ 31. In addition, inmates are allowed three showers per week; one hour of exercise outside the cell on weekdays; visitation, correspondence and telephone privileges similar to those of the general population, and access to prison chaplains, physicians, psychiatrists, legal materials and attorneys from the Connecticut Legal Assistance to Prisoners Program. Id. at HU 32-34. However, inmates confined to F-Block apparently have little opportunity to associate with other inmates or to participate in work, educational, social or recreational activities. Plaintiff’s Statement II at 1123.

The plaintiff remained confined in the F-Block administrative segregation unit at CCI-Somers from August 31, 1981, to March 2, 1984. Defendants’ Statement at 1135. The defendants contend that the plaintiff’s prolonged confinement in administrative segregation was necessary because (1) all of the Clinkseales brothers were not transferred out of CCI-Somers until September 9, 1983; (2) Theodore Casiano, who had testified against the plaintiff at the robbery trial that resulted in his current incarceration, was also housed at CCI-Somers at various times after April 2, 1982; and (3) the plaintiff engaged in “numerous acts of serious misconduct” during his administrative segregation and thereby created an additional “threat to the good order and safety of the prison.” Id. at ¶¶ 36-45. The plaintiff does not deny that the Clinkseales brothers and Casiano were incarcerated at CCI-Somers during the periods stated by the defendants or that he violated prison rules during his confinement in F-Block. Plaintiff’s Statement I at 1134. However, the plaintiff contends that prison officials should not have confined him to F-Block while permitting the Clinkseales brothers and Casiano to remain in the general population and should not have taken his misconduct into account in deciding whether to release him from administrative segregation.

II. The Due Process Challenge

The plaintiff contends that the defendants violated his rights to substantive and procedural due process by transferring him from NHCCC to CCI-Somers and by placing him in administrative segregation prior to his trial. In addition, he contends that the defendants further violated his right to procedural due process by continuing to confine him in F-Block following his conviction. The court will consider each of these contentions seriatim.

A.

It is undisputed that a state is permitted to detain a person suspected of committing a crime prior to a formal adjudication of guilt. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). A violation of that person’s right to substantive due process occurs only when the conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979). See also Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984).

The Supreme Court has emphasized that “[n]ot every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense.” Bell v. Wolfish, supra, 441 U.S. at 537, 99 S.Ct. at 1873. It is therefore necessary for a court to determine “whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538, 99 S.Ct. at 1873, citing Flemming v. Nestor, 363 U.S. 603, 613-17, 80 S.Ct. 1367, 1374-76, 4 L.Ed.2d 1435 (1960). Accordingly, the Supreme Court has held that

if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Bell v. Wolfish, supra, 441 U.S. at 539, 99 S.Ct. at 1874.

It is undisputed that the maintenance of prison order and security is a legitimate governmental objective. Indeed, courts have often observed that “security and discipline should be paramount concerns of a prison administration” and that “inmates must be protected from violence at the hands of other inmates.” Simmat v. Manson, 554 F.Supp. 1363, 1375 (D.Conn.1983) (Blumenfeld, J.), citing Engblom v. Carey, 677 F.2d 957, 970 (2d Cir. 1982) (Kaufman, J., dissenting); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Restraints that are reasonably related to the maintenance of prison security, therefore, “do not, without more, constitute unconstitutional punishment.” Bell v. Wolfish, supra, 441 U.S. at 540, 99 S.Ct. at 1874-75.

Furthermore, the Supreme Court has cautioned that considerations of

whether restrictions or conditions are reasonably related to the Government’s interest in maintaining security and order and operating the institution in a manageable fashion ... “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.”

Id. at 540-41 n. 23, 99 S.Ct. at 1874-75 n. 23, quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974). A particular restriction or condition imposed by prison officials “does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional.” Bell v. Wolfish, supra, 441 U.S. at 542-43 n. 25, 99 S.Ct. at 1875-76 n. 25. Nor are prison officials “obligated to adopt the least restrictive means to meet their legitimate objectives.” Block v. Rutherford, supra, 104 S.Ct. at 3238 n. 11.

Accordingly, the plaintiff was deprived of his Fourteenth Amendment right to substantive due process only if his transfer from NHCCC to CCI-Somers or his placement in the administrative segregation unit at CCI-Somers was for “the purpose of punishment” rather than for “some other legitimate governmental purpose.” Bell v. Wolfish, supra, 441 U.S. at 538, 99 S.Ct. at 1873. The court must therefore examine the evidence offered by the defendants in support of their actions as well as the evidence offered by the plaintiff in rebuttal.

The defendant Raymond M. Lopes, the current Commissioner of the Connecticut Department of Correction, states in his sworn affidavit that the plaintiff was transferred to CCI-Somers because he “posed an unreasonable security risk at the NHCCC.” Lopes Affidavit at ¶ 3(H). This decision was based upon the plaintiffs “extensive criminal history, the circumstances surrounding his recent escape [from NHCCC] and his commission of several serious crimes during the short time period while he was in escape status.” Id. As noted above, the plaintiff, a repeat offender, was convicted of having escaped from custody on April 21, 1981, and of other serious crimes committed after that escape.

The sworn affidavit of George Bronson, the current Warden of CCI-Somers, states that the plaintiff was confined to the administrative segregation unit at CCI-Somers prior to his robbery trial because prison officials feared that the presence of both the plaintiff and the Clinkseales brothers in the general population “would create an unreasonable threat to the safety and welfare of the prison community.” Affidavit of George Bronson (filed June 28, 1984) (“Bronson Affidavit”) at ¶ 20. See also Affidavit of Steven A. Tozier (filed June 23, 1984) (“Tozier Affidavit”) at ¶ 21(M). Warden Bronson states in his affidavit that the Clinkseales brothers “had extensive and violent criminal histories” and that “[t]hey or their friends in the prison population were fully capable of carrying out an act of retaliation against [the plaintiff].” Bronson Affidavit, supra, at ¶¶ 35-36.

The plaintiff has not. denied that he told prison officials in 1975 that the presence of two of the Clinkseales brothers at CCISomers threatened his physical safety. See Lopes Affidavit, Exhibit A. Indeed, the plaintiff concedes that he “had a problem” with the Clinkseales brothers at that time. See Plaintiffs Statement I at 14.

The affidavits of Commissioner Lopes, Warden Bronson and Lieutenant Tozier, as well as the plaintiff’s criminal record and his previous relations with the Clinkseales brothers, constitute compelling evidence that the plaintiff’s transfer from NHCCC to CCI-Somers and his pre-trial administrative segregation were reasonably related to the legitimate governmental objective of maintaining order and security at the two institutions.

The plaintiff has offered nothing more than bald assertions that his pre-trial transfer and administrative segregation were designed to punish him rather than to maintain institutional security. Such assertions are insufficient to defeat a motion for summary judgment. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (Kaufman, J.) (“The litigant opposing summary judgment ... ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial____ [but] must bring to the district court’s attention some affirmative indication that his version of relevant events is not fanciful.”).

At most, the plaintiff has suggested that the defendants exaggerated the security threat that he posed to NHCCC and CCISomers and that the defendants should have used alternative means to respond to this perceived threat. These assertions are insufficient to defeat the defendants’ motion for summary judgment.

First, the court is required to defer in matters of prison security to the “professional expertise of corrections officials ... in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Bell v. Wolfish, supra, 441 U.S. at 540-541 n. 23, 99 S.Ct. at 1874-75 n. 23. Similar deference must be accorded “the professional expertise of corrections officials” on a motion for summary judgment where, as here, the plaintiff has offered no evidence that the defendants overestimated the threat that he posed to institutional order and security.

Second, the court must uphold any reasonable measure chosen by the defendants to maintain prison security even if less restrictive alternatives may also have been available. See id. at 542-43 n. 25, 99 S.Ct. at 1875-76 n. 25; Block v. Rutherford, supra, 104 S.Ct. at 3238 n. 11. It is clear that the transfer and administrative segregation of the plaintiff were reasonable means of promoting institutional security in light of the plaintiff’s criminal record and his previous relations with the Clinkscales brothers. The defendants were not required to incur the costs necessary to make NHCCC a more secure institution, or to place all three Clinkscales brothers and their inmate friends in administrative segregation, merely so that the plaintiff could be confined under conditions less restrictive than those of F-Block.

Accordingly, the court holds that the plaintiff’s transfer from NHCCC to CCISomers and his pre-trial administrative segregation were restrictions reasonably related to the maintenance of institutional security rather than punishments that could not constitutionally have been imposed pri- or to conviction. The plaintiff’s substantive due process challenge to the conditions of his pre-trial confinement therefore must be denied.

B.

The plaintiff also alleges that the defendants violated his constitutional right to procedural due process by failing to accord him proper hearings prior to his transfer to CCI-Somers and his pre-trial administrative segregation. A liberty interest that is protected against deprivation without procedural due process “may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). The court, having already found that the defendants did not deprive the plaintiffs of any liberty interest secured by the Fourteenth Amendment, therefore must determine whether the plaintiff enjoyed any right under Connecticut law to be confined to NHCCC or to the general population at CCI-Somers during his pre-trial detention.

The plaintiff has not directed the court’s attention to any Connecticut statutes, regulations or administrative directives, or to any decisions of the Connecticut courts, that might entitle an accused to remain at a particular institution during his pre-trial detention provided that certain conditions are satisfied. Accordingly, the court must reject the plaintiff's procedural due process challenge to his transfer from NHCCC to CCI-Somers.

It is at least arguable that the plaintiff did possess a liberty interest under Connecticut law with respect to his placement in the general prison population at CCISomers. See, e.g., McAlister v. Robinson, 488 F.Supp. 545, 554-55 (D.Conn.1978) (Clarie, C.J.) (adopting opinion of Eagan, Magistrate), affd sub nom. Raffone v. Robinson, 607 F.2d 1058 (2d Cir.1979) (Lumbard, J.) (inmates transferred from general population to administrative segregation at CCI-Somers had a liberty interest protected by the Due Process Clause). But see, e.g., Hewitt v. Helms, supra, 459 U.S. 471, 103 S.Ct. 871 (holding that “the mere fact that [a state] has created a careful procedural structure to regulate the use of administrative detention” does not indicate the existence of a protected liberty interest). However, even if one assumes for the argument that the plaintiff possessed a protected liberty interest in being assigned to the general prison population, a constitutional violation occurred only if the plaintiff was deprived of that liberty interest without due process of law.

The Supreme Court has adopted a three-part analysis to determine what process is due under the Fourteenth Amendment in connection with the deprivation of a protected liberty or property interest. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The factors to be considered are the private interests at stake in a governmental decision, the governmental interests involved and the value of particular procedural requirements.

This three-part analysis was applied in Hewitt v. Helms, supra, to determine what process was due a convicted prisoner who had been placed in administrative segregation and thereby deprived of a liberty interest protected under state law. The Supreme Court found that the Due Process Clause merely required that the inmate “receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” 459 U.S. at 476, 103 S.Ct. at 874.

In the instant case, as in Hewitt v. Helms, the plaintiffs “private interest is not one of great consequence,” because “[h]e was merely transferred from one extremely restricted environment to an even more confined situation” and because his segregation would not carry “the stigma of wrongdoing or misconduct” or “have any significant effect on parole opportunities.” Id. at 473, 103 S.Ct. at 872. Likewise, the governmental interests in both cases “are of great importance,” because “[t]he safety of the institution’s guards and inmates is perhaps the most fundamental responsibility of the prison administration.” Id.

Finally, in considering the value of particular procedures in determining whether an inmate poses a threat to prison security, the Supreme Court observed that

[t]he judgment of prison officials in this context ... turns largely on “purely subjective evaluations and on predictions of future behavior” ...; indeed, the administrators must predict not just one inmate’s future actions but those of an entire institution. Owing to the central role of these types of intuitive judgments, a decision that an inmate or group of inmates represents a threat to the institution’s security would not be appreciably fostered by the trial-type procedural safeguards suggested by respondent. This, and the balance of public and private interests, lead us to conclude that the Due Process Clause requires only an informal, nonadversary review of evidence ... in order to confine an inmate feared to be a threat to institutional security to administrative segregation.

Id. at 474, 103 S.Ct. at 873. It is clear that the same sorts of “subjective evaluations” and “predictions of future behavior” must be made by prison officials regardless of whether the inmate feared to be a security threat is a pretrial detainee or a convicted prisoner.

In sum, there appears to be no reason why the procedural safeguards accorded an inmate in connection with his transfer to administrative segregation ought to differ depending upon whether he is a pretrial detainee or a convicted prisoner. Accordingly, the court holds that all prison inmates, regardless of whether they have yet been convicted of a crime, are entitled to the same procedural protections in connection with their confinement in administrative segregation. In other words, the pretrial detainee, like the convicted prisoner, is entitled under the Due Process Clause to “receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476,103 S.Ct. at 874. However, neither the pretrial detainee nor the convicted prisoner has a constitutional right to a trial-type evidentiary hearing incident to his administrative segregation.

It is undisputed that the plaintiff in this case received a hearing before the Classification Committee on September 8, 1981, concerning his request to be released to the general prison population. The plaintiff was given advance written notice of the time and place of the hearing, the reasons for his placement in administrative segregation, and his rights to obtain a “staff advocate” to act in his behalf and to call “[a] reasonable number of relevant and non-redundant witnesses.” See Tozier Affidavit, Exhibit F. The plaintiff declined to comment at the hearing concerning his relations with the Clinkscales brothers and other matters relevant to his release from segregation. See id., Exhibit G. There is no evidence that the plaintiff exercised his right to appeal the Classification Committee’s recommendation that he remain in the administrative segregation unit. The defendants cannot be faulted under these circumstances for relying on earlier undisputed evidence of the plaintiff’s fear for his physical safety at the hands of the Clinkscales brothers.

It is clear in light of the foregoing undisputed evidence that the plaintiff received at least as much process as he was due under the Fourteenth Amendment with respect to his administrative segregation. Accordingly, the plaintiff’s procedural due process challenge to the conditions of his pre-trial confinement must be rejected.

C.

Similar reasons require the rejection of the plaintiff’s procedural due process challenge to his post-trial administrative segregation.

The affidavit of Warden Bronson indicates that additional factors caused prison officials to retain the plaintiff in the administrative segregation unit following his conviction on October 28, 1982, and the departure from CCI-Somers of two of the three Clinkscales brothers on or before December 7, 1982. The first of these factors was the arrival at CCI-Somers of Theodore Casiano, who had testified against the plaintiff at his recent robbery trial and who is described in the affidavit as “a dangerous individual.” Bronson Affidavit at ¶ 48. Warden Bronson states that “[t]here was obvious bad blood between [the plaintiff] and Casiano,” id. at ¶ 50, and the plaintiff conceded as much in his own statements to prison officials. See id., Exhibits C, D, E. The second factor that contributed to the plaintiff’s continued administrative segregation was his “poor institutional behavior,” including incidents of threatening and assaultive conduct, which caused the defendants to conclude that the plaintiff posed “a threat to the good order and safety of the prison.” Lopes Affidavit at ¶[ 4(0).

It is therefore evident that the administrative segregation of the plaintiff following his conviction continued to be motivated primarily, if not exclusively, by non-punitive concerns reasonably related to the legitimate governmental objective of maintaining order and security at CCI-Somers. The plaintiff has offered no evidence that the defendants’ decision to extend his administrative segregation because of his “poor institutional behavior” was designed to punish him for past misconduct rather than to ensure that he could function appropriately if released into the general population. Indeed, the record indicates that the plaintiff was separately punished for his misconduct during the period of his administrative segregation. See Plaintiff’s Statement II at ¶¶ 38, 40, 45, 48, 49, 50, 53, 54, 69, 76, 81, 84, 89, 90, 94.

The plaintiff correctly observes that the Supreme Court stated in Hewitt v. Helms that “administrative segregation may not be used as a pretext for indefinite confinement of an inmate.” 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9. However, the Court went on to emphasize in that decision that, while “[p]rison officials must engage in some sort of periodic review of the confinement of such inmates,”

[t]his review will not necessarily require that prison officials permit the submission of additional evidence or statements. The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner — which will have been ascertained when determining to confine the inmate to administrative segregation — and on the officials’ general knowledge of prison conditions and tensions, which are singularly unsuited for “proof” in any highly structured manner.

Id.

It is undisputed that the plaintiff in this case was provided with a monthly review of his status by the Special Offenders Classification Committee and a bimonthly review of his status by the full Classification Committee. See Plaintiff’s Statement II at ¶¶ 27, 28. He was entitled to appear at the reviews of the Special Offenders Classification Committee. See Tozier Affidavit, Exhibit C. The plaintiff has failed to offer any suggestion, much less any evidence, that he was not informed of the reasons for his continued administrative segregation or was prevented from presenting additional evidence concerning his status to the Special Offenders Classification Committee or to other prison officials.

The court concludes on the basis of this undisputed evidence that the plaintiff was accorded all of the procedural safeguards to which he was constitutionally entitled with respect to his continued administrative segregation from the time of his conviction on October 28,1982, until his release to the general population on March 2, 1984. The plaintiff’s procedural due process challenge to his post-conviction confinement must therefore be rejected.

III. The Equal Protection Challenge

The plaintiff contends that his transfer to CCI-Somers and his pre-trial administrative segregation also violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The plaintiff has not suggested that he was singled out for unequal treatment on account of his membership in any “suspect class.” Accordingly, the actions of the defendants must be upheld if they are found to be “rationally related to furthering a legitimate state interest.” Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam). See also Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979) (state action must be upheld under rational-basis test unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [challenged] actions were irrational”).

As discussed in greater detail above, the defendants’ actions in transferring the plaintiff from NHCCC to CCI-Somers and placing the plaintiff in administrative segregation were “rationally related to furthering a legitimate state interest” in institutional order and security. It cannot be said that the defendants acted “irrationally” in transferring a person who had recently escaped from custody to more secure surroundings or in separating that person from inmates who had previously threatened his physical safety. Accordingly, the plaintiff’s equal protection challenge to the conditions of his pre-trial confinement must be rejected.

IV. The Eighth Amendment Challenge

Finally, the plaintiff contends that the conditions of his post-conviction confinement in the administrative segregation unit violate his right under the Eighth Amendment to be free from cruel and unusual punishment.

The Supreme Court has held that “the Eighth Amendment prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ ... or are grossly disproportionate to the severity of the crime.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). However, conditions that are “restrictive and even harsh,” but that are not “cruel and unusual under contemporary standards,” are constitutionally permissible as “part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. Moreover, the Supreme Court has emphasized that “Eighth Amendment judgments should neither be nor appear to be merely the subjective views” of judges. Id,., citing Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382 (1980).

The obligations imposed upon state prison officials by the Eighth Amendment were further delineated by our Court of Appeals in Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978) (Kaufman, J.), rev’d on other grounds sub nom. Bell v. Wolfish, supra, 441 U.S. 520, 99 S.Ct. 1861:

An institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and-personal safety. The Constitution does not require that sentenced prisoners be provided with every amenity which one might find desirable.

See also Lareau v. Manson, 651 F.2d 96, 106 (2d Cir.1981) (Mansfield, J.) (same). The plaintiff in this case has not challenged the adequacy of the food, clothing, medical care or personal safety provided by the defendants. Consequently, his only claims that are potentially cognizable under the Eighth Amendment concern the size of his cell, the amount of time that he was required to spend within the cell, and the frequency with which he was permitted to shower.

Similar complaints were rejected by the Connecticut Supreme Court in Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982). That court relied upon Rhodes v. Chapman, supra, in holding that “the totality of conditions” in the administrative segregation unit of CCI-Somers did not offend the Eighth Amendment’s prohibition of cruel and unusual punishment. The plaintiff has offered no additional evidence of conditions in F-Block that might call for a contrary conclusion in this case and has cited no decisions in which similar conditions were found by other courts to constitute “cruel and unusual punishment.” For example, the plaintiff in this case was allowed nearly twice as many square feet of space in his cell as were the plaintiffs in Lareau v. Manson, 507 F.Supp. 1177 (D.Conn.1980), affd in part, modified in part, 651 F.2d 96 (2d Cir.1981).

Moreover, conditions in the administrative segregation unit appear to have improved, if anything, since the events at issue in Arey v. Warden. For example, the plaintiff in this action was entitled to three showers per week during his administrative segregation rather than the two showers per week allowed the petitioner in the state action during his earlier confinement in F-Block.

Accordingly, the court holds that the plaintiff’s claim under the Eighth Amendment must also be rejected.

Conclusion

For the reasons stated above, the defendants’ motion for summary judgment is hereby granted. Judgment for the defendants shall enter forthwith.

It is so ordered.

      . Commissioner Manson and Warden Robinson died during the pendency of this action. The plaintiffs motion to substitute as party defendants the executrices/administratrices of the Manson and Robinson estates was denied, without prejudice to renewal, pursuant to a colloquy with counsel, in open court and on the record, on May 2, 1984.

      . The continued confinement of the plaintiff in administrative segregation following his conviction, and the reasons given by the defendants for his continued confinement, are considered at part 11(C), infra.

      . Even if the plaintiff had offered some "affirmative indication” that the defendants had acted for punitive as well as non-punitive reasons, the court still would be obligated to uphold the challenged actions if they would have been taken for the non-punitive reasons alone. See Sher V. Coughlin, 739 F.2d 77, 81-82 (2d Cir.1984) (Newman, J.), citing Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).


author: KANE, District Judge.

text:
    Ray BREZINSKI, Plaintiff, v. F.W. WOOLWORTH CO., Defendant.
    Civ. A. No. 85-K-2302.
    United States District Court, D. Colorado.
    Jan. 9, 1986.

      Joseph A. Kincilja, Pueblo, Colo., for plaintiff.
    John M. Husband, Holland & Hart, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

In this diversity action, plaintiff alleges that he was discharged by defendant because of his age in violation of Colo.Rev. Stat. § 8-2-116 (1973). Plaintiff also asserts claims for breach of contract, wrongful discharge, and outrageous conduct. This matter is now before me on defendant’s motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6).

I. Standards for Decision

For defendant to prevail on its motion to dismiss for failure to state claims upon which relief can be granted, it must appear “beyond doubt that ... plaintiff can prove no set of facts in support of his claimfs] which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 594. All facts, as distinguished from conclusory allegations, must be construed in favor of plaintiff. See Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 1529, 18 L.Ed.2d 704 (1967); Swanson v. Bixler, 750 F.2d 810, 812 (10th Cir. 1984). So long as plaintiff may offer evidence to support a legally recognized claim for relief, the motion to dismiss should be denied. Conley, 355 U.S. 41, 46-47, 78 S.Ct. 99,102-03.

II. Private Right of Action

Plaintiff’s first claim is for age discrimination. This claim alleges that defendant violated § 8-2-116 by firing plaintiff solely because of his age. Section 8-2-116 provides that

[n]o person, firm, association, or corporation conducting within this state any business requiring employment of any individual between the ages of eighteen and sixty years, solely and only upon the ground of age, if such individual is well versed in the line of business carried on by such person, firm, association, or corporation and is qualified physically, mentally, and by training and experience to satisfactorily perform and does satisfactorily perform the labor assigned to him, or for which he applies.

The penalty for violation of this statute is a fine of not less than $100 and not more than $250. See Colo.Rev.Stat. § 8-2-117.

Although § 8-2-116 is criminal in nature, I have held, based on the four-part test in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), that the Colorado legislature intended to create a private right of action for damages under this statute. Rawson v. Sears Roebuck & Co., 530 F.Supp. 776, 778 (D.Colo.1982). In its motion, defendant seeks to dismiss plaintiff’s age discrimination claim, arguing that recent case law compels a different conclusion on the private cause of action issue. According to defendant, no cause of action for damages exists for violation of § 8-2-116 and, thus, plaintiff’s claim under this statute must be dismissed.

More specifically, defendant asserts that other courts have collapsed the four-part test in Cort into one comprehensive and strict inquiry into congressional intent to provide such a right. See, e.g., Fidelity Financial Corp. v. Federal Home Loan Bank, 589 F.Supp. 885, 892 (N.D.Calif. 1983) ; Le Vick v. Skaggs Companies, Inc., 701 F.2d 777, 779 (9th Cir.1983); Osborn v. American Ass’n of Retired Persons, 660 F.2d 740, 743 (9th Cir.1981). This does not, however, change the result in Rawson because, as stated above, I specifically found that the Colorado legislature intended to create a private right of action under § 8-2-116. Rawson, 530 F.Supp. 776, 778. Additionally, defendant cites three cases where the Colorado courts did not imply a private right of action from statutes which did not provide for civil remedies. See Farmers Group, Inc. v. Trimble, 658 P.2d 1370, 1378 (Colo.App.1982); National Wildlife Federation v. Cotter Corp., 646 P.2d 393 (Colo.App.1981); Silverstein v. Sisters of Charity, 38 Colo.App. 286, 559 P.2d 716 (1976). These decisions are inapposite, however, because they dealt with statutes other than § 8-2-116. See Raw-son, 585 F.Supp. 1393, 1394-95 (D.Colo. 1984) ; Brenimer v. Great Western Sugar Co., 567 F.Supp. 218, 222-23 (D.Colo.1983). Under Rawson, plaintiff has a private cause of action for age discrimination pursuant to § 8-2-116.

III. Statute of Limitations

Alternatively, defendant maintains that this claim is time barred by Colo.Rev.Stat. § 8-3-110(16) (1985 Cum.Supp.). Plaintiff was fired on December 8, 1982. This action was filed on September 9, 1985 in the state district court in Pueblo, Colorado and thereafter removed by defendant to this court. Section 8-3-110(16) governs the limitation period for charges of unfair labor practices under the Colorado Labor Peace Act, Colo.Rev.Stat. §§ 8-3-101 et seq. That statute provides that “[t]he right of any person to proceed under this section and section 8-3-121 shall not extend beyond six months from the date of the specific act or unfair labor practice alleged.” Colo.Rev.Stat. § 8-3-110(16) (emphasis supplied). It could be argued that § 8-3-110(16) applies only to proceedings brought under the Labor Peace Act and, since plaintiff’s claim is not brought under that Act, the six months statute of limitations is inapplicable. In Rawson, however, I held that civil damages for violation of § 8-2-116 are recoverable under § 8-3-121:

Plaintiff seeks to base his recovery of damages from the defendant on Colo. Rev.Stat. § 8-3-121. Section 8-3-121 provides that “[a]ny person who suffers injury because of an unfair labor practice has a right of action, jointly and severally, against all persons participating in said practice for damages caused to the injured person____” Colo.Rev.Stat. § 8-3-121 (1973). An unfair labor practice has been defined as the commission of “any crime in connection with any controversy as to employment relations.” Colo.Rev.Stat. § 8-3-108(l)(l) (1973). Despite this clear language and the conclusions of law in my earlier opinion on this matter, defendant insists that plaintiff cannot recover damages under § 8-2-121 because the statute only provides a remedy for injuries received as a result of engaging in union activity or any activities related to collective bargaining. I disagree.
Defendant ignores that portion of my earlier opinion where I succinctly stated that: “The Colorado legislature’s broad definition of unfair labor practices indicates an intent to create a private right of action to anyone who can prove by a preponderance of the evidence that a defendant has violated a criminal labor code.” Rawson, 530 F.Supp. at 778. Pursuant to the jury verdict of January 30, 1984, plaintiff proved by a preponderance of the evidence that the defendant violated § 8-2-116. He may therefore seek damages under § 8-3-121.

Rawson, 585 F.Supp. 1393, 1396.

In the instant case, plaintiff seeks damages for violation of § 8-2-116. Recovery of such damages would be pursuant to § 8-3-121. Section 8-3-110(16) clearly limits the time period for the filing of actions for damages under § 8-3-121 to six months. Therefore, I conclude that § 8-3-110(16) applies to private causes of action for damages under § 8-2-116. Since plaintiff’s claim for age discrimination under § 8-2-116 was not brought within the required six months period, that claim must be dismissed.

IV. Claims for Breach of Contract

Plaintiff’s second and third claims for relief are for breach of express and implied contract, respectively. Defendant asserts that these claims must be dismissed because no contract, either express or implied, is alleged in the complaint. In support of this contention, defendant cites my decision in Rawson.

In Rawson, the plaintiff merely alleged that “[t]he acts of the [djefendant ... constitute a breach of contract.” No facts or other allegations appeared in the complaint to support this claim. I dismissed the plaintiff's breach of contract claim because the plaintiff’s bare allegation that the defendant’s acts constituted a breach of contract did not comply with Fed.R.Civ.P. 8(a)(2). Rawson, 530 F.Supp. 776, 781. Specifically, the plaintiff did not plead any of the elements of a contract and, thus, this claim did not give fair notice to the defendant. Id.

By contrast, in the present case, the complaint alleges that defendant expressly agreed, during the period of plaintiff’s employment, that plaintiff would be discharged only for cause. Plaintiff also alleges in his complaint that there was an implied agreement that he would be discharged only for just grounds and in good faith. Construing these allegations in the light most favorable to plaintiff, I find that they are sufficient under Rule 8(a)(2). Defendant has been placed on notice as to the existence of both an express and an implied contract in this case. Thus, plaintiff’s claims do not suffer from the same defects as in Rawson. Defendant’s motion is, therefore, denied with respect to these claims.

V. Wrongful Discharge

Plaintiff’s fourth claim for relief alleges that defendant’s acts constitute the tort of wrongful discharge. Defendant seeks dismissal of this claim on the ground that the Colorado courts have declined to recognize this tort under circumstances similar to those alleged by plaintiff in this case.

In general, Colorado subscribes to the employment-at-will doctrine: “In the absence of special consideration or an express stipulation as to the duration of employment, an indefinite general hiring is terminable at will by either party.” Lampe v. Presbyterian Medical Center, 41 Colo. App. 465, 590 P.2d 513, 514 (1978) (citing Justice v. Stanley Aviation Corp., 35 Colo. App. 1, 530 P.2d 984 (1974)). There are two exceptions to this rule. The rule does not apply, and a claim for wrongful discharge is cognizable, if a plaintiff claims that he was discharged either for exercising a statutory right, such as the right to file for workmen’s compensation, or for complying with a statutory duty, such as the duty to serve on a jury. Lampe, 590 P.2d 513, 515; see also Rawson, 530 F.Supp. 776, 781-82.

In the instant case, plaintiff does not allege that he was fired for exercising any specific right or duty. Defendant contends that, for this reason, plaintiff’s wrongful discharge claim must be dismissed. See Rawson, 530 F.Supp. 776, 782. Plaintiff responds by asserting that defendant violated a clear public policy against age discrimination and that a “public policy” exception to the employment-at-will doctrine should be recognized along with the statutory right and duty exceptions. Many courts have adopted the public policy exception. See Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487, 493 (W.D. Ark.1982) (citing cases which have adopted the exception). Colorado, however, has not recognized the public policy exception. See Garcia v. Aetna Finance Co., 752 F.2d 488, 491 (10th Cir.1984); Smith v. Montgomery Ward & Co., Inc., 567 F.Supp. 1331, 1334 (D.Colo.1983). It is not appropriate for a federal judge sitting in a diversity case to expand the tort of wrongful discharge to include an action based upon such an exception. Accordingly, plaintiff's wrongful discharge claim is dismissed.

VI. Outrageous Conduct

Finally, defendant seeks dismissal of plaintiff’s sixth claim for relief. In this claim, plaintiff alleges that defendant’s acts constitute extreme and outrageous conduct. Defendant contends that this claim is not cognizable since plaintiff has not alleged a pattern of conduct calculated to cause emotional distress or a sufficiently outrageous isolated incident.

In Rawson, the defendant also moved to dismiss the plaintiff’s claim for outrageous conduct. After examining the relevant Colorado case law, I concluded that there is a certain threshold level of conduct that must first be established for the plaintiff to state a cause of action for outrageous conduct. Rawson, 530 F.Supp. 776, 780. To meet this threshold, plaintiff must allege either that: 1) defendant has engaged in a pattern of conduct that was intended to cause or recklessly did cause severe emotional distress, or 2) if the incident is isolated, defendant blatantly and severely harassed plaintiff. Id.

In the present case, plaintiff has failed to state allegations or recite facts which would meet this threshold. Thus, plaintiff’s sixth claim is insufficient to state a claim for outrageous conduct and must be dismissed.

IT IS THEREFORE ORDERED THAT:

1. Defendant's motion to dismiss is granted in part and denied in part. Plaintiff’s first, fourth, and sixth claims for relief are dismissed.

2. Defendant shall file an answer to plaintiff’s second and third claims for relief within twenty days of the date of this order.