HomeMy WebLinkAbout98-0448 miscellaneousISHANGO MIKE BUNDY,
PETITIONER
THE DEPARTMENT OF
CORRECTIONS, ET AL.,
RESPONDENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 98-0448 MISCELLANEOUS TERM
IN RE: HABEAS CORPUS
OPINION AND ORDER OF COURT
BAYLEY, J., April 5, 1999:--
Ishango Mike Bundy, age 44, is an inmate under the jurisdiction of the
Pennsylvania Department of Corrections. He filed a petition seeking a writ of habeas
corpus challenging the conditions of his confinement in the Special Management Unit
(SMU) at the State Correctional Institution at Camp Hill, Cumberland County.~
Pa.R.Crim. P. 1701(b) provides:
A petition for writ of habeas corpus challenging the conditions of the
petitioner's confinement in a criminal matter shall be filed with the clerk
of court of the judicial district wherein the petitioner is confined.
Petitioner is serving a life sentence imposed in 1974 in the Court of Common
Pleas of Philadelphia.
Hill on July 15, 1997.
multiple long-term misconduct violations and aggressive behavior.
He was transferred from SCI Greene to the SMU in SCI Camp
The transfer, for which he was medically cleared, was for
Petitioner
1. Petitioner complains that his petition has not been timely resolved. He
improvidently filed this petition for a writ of habeas corpus in Greene County,
Pennsylvania. On November 19, 1998, the record was docketed in the Court of
Common Pleas of Cumberland County on a change of venue ordered by the Court of
Common Pleas of Greene County. A hearing was conducted in this court on March
24, 1999.
98-0448 MISCELLANEOUS
maintains that his continued confinement in the SMU violates his rights under the Due
Process Clause of the United States Constitution, and that the conditions of his
confinement constitute cruel and inhuman punishment.
In the summer of 1995, twenty-one inmates in the SMU at the State
Correctional Institution at Camp Hill litigated habeas corpus claims that were in some
respects similar to the claims now raised by petitioner. In an opinion in support of an
order entered on December 27, 1995, we described the operation of the SMU
program at the State Correctional Institution at Camp Hill:2
The SMU opened in April, 1992, and is the most secure facility operated
by the Department of Corrections. The purpose of the unit is to safely
and humanely handle inmates whose behavior presents a serious threat
to the safety and security of a facility, staff, other inmates or themselves.
Inmates in the unit require the maximum custody level of security and
control.
All inmates entering the SMU are transferred from restrictive
housing units (RHU), in the state correctional institutions throughout the
Commonwealth. If inmates have been adjudicated into disciplinary
custody status at those institutions, they are placed into Phase V of the
SMU at Camp Hill. Otherwise they are placed into Phase IV
administrative custody. Inmates in the SMU must progress through all
phases through Phase I1. Inmates in Phases IV, III and II are all in
administrative custody status; After successfully completing Phase II,
inmates are transferred into the general population of a state prison
Somewhere in Pennsylvania. They remain in a Phase I control group
unit at that institution for ninety days but that time can be extended by
the institution '~Nith just cause." Inmates are not in administrative
custody while in Phase I. Many inmates arrive in the SMU at Camp Hill
having spent years in administrative custody. For those inmates,
placement in the SMU actually allows them to be released from
2. Jacobs et al. v. Lehman et al., 45 Cumberland L.J. 64 (1995); aff'd 707
A.2d 249 (Pa. Commw. 1997); petition for allowance of appeal denied _ Pa. _ 1998
Pa. LX 1150.
-2-
98-0448 MISCELLANEOUS
administrative custody status into general population quicker than if they
remain in the RHU from which they were transferred.
The SMU is a secure, self-contained facility wholly within the State
Correctional Institution at Camp Hill. There is an attached, fenced-in
outside exercise yard. There are four hubs of single cells off a central
control center housing up to one hundred inmates. Each cell has a
window. The SMU has a self-contained air conditioning and ventilating
system. Each cell has an air intake and exit vent .... Plastic shields
are placed on cell doors when inmates are excessively loud or throw
feces or urine (not that unusual an occurrence) on staff or other inmates.
·.. At the top of each cell is a small night-light type bulb behind-an
opaque surface that remains on at all times. The SMU is well-staffed
with correctional officers and support personnel: up to seventeen on the
day shift. Inmates and staff eat the same food prepared for about three
thousand in the kitchens of the State Correctional Institution. The food
is brought to the SMU and placed in large warmers. It is then delivered
to the inmates who eat in their cells.
Every inmate entering the SMU is provided a basic issue:
toothbrush, toothpaste, soap, T-shirt, underwear, socks, sneakers,
jumpsuit, towel and comb. In the winter inmates are issued a hat,
gloves, coat and rubber boots that fit over the sneakers. Inmates in
Phases V and IV receive one hour of outside yard five days per week.
Phase III inmates receive one hour seven days per week, and Phase II,
two hours seven days per week. Inmates shower three days per week.
Inmates in Phases V and IV are allowed one newspaper and one
magazine at a time. Religious materials are allowed but limited.
Availability increases as inmates move through phases. Inmates may
pay for correspondence courses in Phase IV. When an inmate reaches
Phase III, he is provided idle pay and receives some commissary
privileges. He is allowed to have a radio in his cell. Material can be
provided to allow study for a GED. When an inmate reaches Phase II,
he is granted more privileges including a television in his cell. The
inmate may complete a GED. He is allowed outside of his cell without
cuffs. He must work for which he receives work pay. The failure to
work constitutes misconduct. Phase V inmates are allowed one non-
contact visit per month with an immediate family member. Phase IV, III
and II inmates are allowed one non-contact visit per week, not limited to
an immediate family member. All inmates are allowed non-contact visits
with legal counsel.
There is a mini-law library in the SMU accessible to all inmates.
The library is in two adjoining cells and an inmate in one cell is allowed
to pass materials to an inmate in the other. Either in the mini-law library
-3-
98-0448 MISCELLANEOUS
or through requests and receipt of materials from the main law library at
the State Correctional Institution at Camp Hill, inmates have access to
the legal materials required by the Pa. Code, Title 37 § 93.8.
An inmate can sign a sick log on any day. He is then seen by a
physician's assistant who comes to the SMU every day. The physician
assistant refers the inmate to a physician when warranted. Medical
emergencies are referred to the infirmary serving the entire Camp Hill
prison. When required, medical care is provided in outside hospitals.
Inmates may file written grievances. There is an established
administrative policy for the review of grievances, and appeals from
dispositions.
All written misconducts are heard within six days by the hearing
examiner for the entire State Correctional Institution at Camp Hill. ^
charged inmate may testify and call witnesses. The maximum penalty
that can be imposed for any misconduct is ninety days discipliaary
custody in Phase V, although penalties for separate offenses may be
consecutive. An adjudicated misconduct is the only way an inmate can
be placed into Phase V disciplinary custody. The inmate can appeal the
merits of the charge and the sanction imposed for a misconduct in a
three-step process: (1) to the inmate program manager, (2) the
Superintendent of the State Correctional Institution at Camp Hill, and (3)
to the Central Office Review Committee of the Department of
Corrections, a three member panel, including an attorney, appointed by
the Commissioner of the Department of Corrections. Absent a
successful appeal, any time received in disciplinary custody for an
assault cannot be reduced. The hearing examiner can reduce up to
one-half the penalty for a non-assault misconduct following a thirty-day
review of an inmate's status.
Placement in administrative custody Phases IV, III and II is for
management purposes. Therefore, transfers between those phases,
forward or backward, do not require formal disciplinary hearings. In
practice, each inmate has a thirty-day review by a unit management
team. Comments are solicited from the staff who work with the inmate.
A written report of each thirty-day review is provided to the inmate and
forwarded to the Superintendent of the Camp Hill Institution. Transfers
between phases are subjective based on review of an inmate's progress
or lack of progress. Transfers to higher phases are made for adverse
conduct. However, if an inmate's actions result in a written misconduct,
an adjudication must be conducted by a hearing examiner based on an
objective standard, which is the only way an inmate can be placed into
Phase V disciplinary custody.
An inmate's progress through the administrative custody phases
-4-
',98-0448 MISCELLANEOUS
of the SMU is behavior driven. Inmates are allowed more privileges as a
reward for good conduct as they advance through phases with the
ultimate goal of returning to the general population of a prison. The
goal is to change behavior that has previously been determined to
constitute a threat to the safety and security of a facility, staff, other
inmates, or to the inmate himself. When an inmate reaches Phase II, his
accessibility to other inmates and staff is a barometer that is used to
determine how amenable he is in dealing with those in authority and his
peers.
The average time an inmate spends in the SMU is one and a half to two years. The
average time for each phase is two to six months. Some inmates completed all
phaSes in nine months. Some inmates have remained in the SMU since it opened in
April, 1992. As we stated in Jacobs:
Inmates are treated individually. There are no set time periods for each
phase, and the time spent in each phase varies from inmate to inmate.
The more dangerous an inmate has been, the more cautious the
administrators are in moving that inmate through phases. About
seventy-five percent of inmates who have been returned to general
population have remained in that status.
In the case sub judice, petitioner maintains that his right to due process is
being violated by the failure to provide him with thirty-day program reviews by a
committee whose members are made up of the personnel required by the regulations
of the Department of Corrections. In Jacobs, contrary to the assertions of the
Department of Corrections, we held that petitioners had a liberty interest protected by
the Due Process Clause regarding the continuation of their confinement in the SMU
because that confinement constituted an atypical, significant hardship in relation to
-5-
98-0448 MISCELLANEOUS
the ordinary incidents of prison life? We issued a writ of habeas corpus that required
a 30-day review for an inmate in custody in the SMU by a Program Review Committee
as defined in the Department's regulations. We stayed the order pending the
Department's appeal. Following the affirmance of the order in the Commonwealth
Court and the denial of the Department's petition for review in the Supreme Court of
Pennsylvania, the Department amended its regulations on August 27, 1998, effective
September 8, 1998, redefining the Program Review Committee in DC-ADM 801.7 as
follows:
A committee consisting of three (3) staff members that conducts
Administrative Custody Hearings, periodic reviews, makes decisions
regarding continued confinement in the Restricted Housing Unit (RHU)
and/or Special Management Unit (SMU), and hears all first level appeals
of misconducts. The committee shall consist of one (1) staff member
from each of the following staff classifications: 1. Deputy Superintendent,
2. Inmate Program Manager or Unit Manager, and
3. Commissioned Officer
The Superintendent may designate other staff as committee members.
However, if such designations are made, they must be in writing and a
list of all designees must be maintained by the Superintendent.
Whenever a PRC is convened, at least one (1) member of the committee
must be a staff member who is not directly involved in the administration
of the RHU/SMU in which the inmate is currently housed.
The Superintendent of SCI Camp Hill issued a directive on December 23, 1998,
naming eleven people who can act if a deputy superintendent is absent from a
Program Review Committee meeting. All eleven persons are management personnel
3. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974).
-6-
98-0448 MISCELLANEOUS
from outside of th~ SMU.
The difference between the Department's current regulation and the prior
regulation that the Department was not following is that one of the two deputy
superintendents has been replaced on the Program Review Committee by a
commissioned officer, and one member of the review committee must now be a staff
member who is not directly involved in the administration of the SMU. The practice of
the Department that led to our entry of a writ of habeas corpus in Jacobs et al. v.
Lehman,-et al., supra, was that the 30-day reviews of an inmate's status in the SMU
were conducted only by personnel connected with the daily operation of that unit in
violation of the Department's own regulation. The regulation adopted effective
September 8, 1998, prohibits that practice. The SMU is now operating with a
Program Review Committee as defined in DC-ADM 801-7. This procedure does not
deny petitioner due process of law.
Petitioner also maintains that he is being denied due process by the failure of
the Department of Corrections to follow its policy statement for the SMU, Number
6.5.7 at VI C 3, that provides:
Initially, each inmate in the SMU must undergo an evaluation by unit
staff to determine a baseline of current status, potential for growth,
and motivation to change in a number of program areas. These
include but are not limited to - education, mental status, vocational
skills, drug/alcohol abuse history, social skills and emotional
stability. After the baseline is established, staff must develop a
prescriptive program with goals and objectives being defined for
each area and deadlines for accomplishment of these goals. This
prescriptive program must necessarily be more comprehensive than
those developed for general population inmates because they must
-7-
98-0448 MISCELLANEOUS
contain specific mention of the extent of freedom and access to
materials that each inmate will be afforded. For example: materials,
supplies, teaching methods, program content, treatment modality,
objectives, etc.
In developing and implementing prescriptive programs, the unit
management approach must be employed to ensure the inclusion of
security staff in order that the safety and security of the institution and
the unit are not compromised. (Emphasis added.)
After petitioner was admitted in disciplinary status to the SMU on July 15,
1997, baseline goals were set for him to: (1) comply with special management unit
procedures, (2) cooperate with special management unit staff, (3) maintain a clear
conduct record, (4) maintain an appropriate level of personal hygiene, and (5)
maintain cleanliness of his cell. These goals are set for every inmate admitted to the
SMU in disciplinary status and they must be met to advance out of Phase V. When
petitioner arrived in the SMU he had accumulated approximately two years of
disciplinary custody time at SCl Greene. Since his arrival in the SMU he has
accumulated twenty-six class 1 misconducts. He has never made any serious effort
to comply with the baseline goals necessary to advance into Phase IV.
Notwithstanding, petitioner argues that he has been denied due process because he
has not been provided with a specific, as compared to what he describes as a
"generic," prescriptive program that he maintains is required by the Department's
policy statement. This argument fails because petitioner takes paragraph VI C 3 of
the policy statement out of context with the entire stated policy for the SMU. The
policy statement at paragraph VI C 2 immediately preceding paragraph VI C 3 cited
by petitioner, states:
-8-
98-0448 MISCELLANEOUS
Modified access to programming is necessary for the effective
management of Special Management Housing Unit inmates.
The absence of programming creates idleness and results in
disruptive incidents. The frequency, magnitude, nature, and
delivery of programming will be modified due to the type of
inmate housed in the SMU, and the need for increased security
and control. (Emphasis added.)
At paragraph V, the policy statement sets forth the overall policy of the SMU:
It is the policy of the Department of Corrections to maintain
Special Managements Units (SMU) within the system to handle
disruptive or violent inmates in a safe, secure, and humane manner.
Inmates placed within these units are assigned based upon their long
term inability to adjust to general population and/or the dangerous
nature of their behavior. They, therefore, represent a risk to the well
being of other inmates and staff and/or threat to the orderly operation of
the facility. It is specifically designed to restore these inmates to
stable participation within the general population or other
appropriate status within a Department of Corrections institution.
(Emphasis added.)
Paragraph VI C 1 provides:
The basic philosophy of the SMU is that inmates who have the capacity
to change will be given the opportunity to progress through specific
phases within the SMU based upon their behavior and ability to adjust
under reduced levels of supervision. Each phase will offer progressively
more privileges and services. All movement between phases is based
on the inmate meeting certain criteria. Inmates in disciplinary custody
will start at Phase V; inmates in administrative custody will begin at
Phase IV. (Emphasis added.)
The phases of the SMU are described in paragraph VI C 6:
(a)
(b)
Phase V - This is for inmates in disciplinary custody and their
privileges and services are established by Administrative Directive
801. Inmates must stay in this phase until the expiration of
their disciplinary custody time or until the PRC or Unit
Management team releases them from disciplinary custody.
Security and control are maintained at a maximum level.
Phase IV - This is the first administrative custody phase and is the
-9-
98-0448 MISCELLANEOUS
(c)
(d)
(e)
starting point for all transfers in administrative custody status.
These inmates will receive the required minimum of privileges and
services established by the Administrative Directive 802. Security
and control are maintained at a maximum level.
Phase III - This is still considered to be administrative custody, but
the inmate is eligible for additional privileges and services. In this
phase, in-cell programming will be increased to allow the inmate
supervised cell study programs from the Education and Activities
Departments. Security and control practices are reduced.
Phase II - This is the first time that the inmate will be allowed out
individually or in small groups though the inmate is still listed as
administrative custody status. It will be his/her introduction to
out-of-cell programming within the unit and to interaction with
other inmates in the same phase. Because these inmates are in
a modified release program, small out-of-cell group activities may
be allowed. This will include group counseling, small group yard
activities, and educational classes and blockout. As inmates
progress in this level, they may be assigned as block workers or
janitors. Completion of this phase will be followed by a transfer
recommendation to the inmate's parent or other designated
institution.
Phase I - Phase I will be general population status in the inmate's
designated institution.4 (Emphasis added.)
Paragraph VI D titled "Advancement Within Unit" states:
Upon reception into the unit, the inmate will undergo an
evaluation by the unit management team who will establish a
baseline of behavior and a program needs assessment. From
this, the team will develop an observable and measurable
prescriptive program with definite goals and objectives and
short-range time limits. Great care must be given to developing
the prescriptive program because of the need for specific limits
with regard to freedom of mobility and access to materials.
(Emphasis added.)
Petitioner entered the state correctional system on a life sentence a quarter of
4. The unit management team referred to in subparagraph (a) has been
deleted. Movement from Phase V to Phase I is now determined by the Program
Review Committee (PRC) as defined by DC-ADM 801.7 effective September 8, 1998.
-10-
98'0448 MISCELLANEOUS
a century ago. He is intelligent and despite his having reached middle age it is his.
intransigent behavior that has altered his prescriptive program and resulted in his
being placed in the SMU at SCI Camp Hill on July 15, 1997. The overall policy of the
SMU as reflected in its Policy Statement is to alter disruptive or violent behavior of an
inmate with a goal of reestablishing general population status in one of the facilities
operated by the Department of Corrections. Reaching that goal entails reaching the
baseline goals to progress out of Phase V disciplinary status. That process as
outlined in PoliCy Statement 6.5.7, and its application to petitioner, when viewed as a
whole does not violate petitioner's due process rights. See Sandin v. Conner, 515
U.S. 472, 1~15 S.Ct. 2293, 132 L. Ed.2d 418 (1995).
'/'~,etitioner further maintains that the condition of his confinement in the SMU
constitutes cruel and inhuman punishment. In Commonwealth ex tel. Bryant v.
Hendrick, 444 Pa. 83 (1971), the Supreme Court of Pennsylvania held '~hat habeas
corpus is available to secure relief from conditions constituting cruel and unusual
punishment, even though the detention itself is legal." The court stated that habeas
corpus should never be denied "[o]ut of hand in the face of a request for relief
based on a patent and serious deprivation of a constitutional right .... "
(Emphasis added.) The court affirmed a finding of a panel of judges in Philadelphia
County that conditions at Holmesburg Prison were "disgusting and degrading," and
"deprived the petitioners of the right to be free from cruel and unusual punishment" as
guaranteed by the Eighth Amendment to the United States Constitution. The trial
-11-
98-0448 MISCELLANEOUS
court had concluded that Holmesburg was overcrowded and poorly equipped; the
cells were verminous, wet and badly ventilated; other areas of the prison were
substandard; there were insufficient guards in proportion to the prison population
resulting in numerous assaults and other crimes; and the prisoners were subject to
random beatings by the guards. The Supreme Court stated that while the
proscriptions in the Eighth Amendment to the United States Constitution are not easily
or exactly defined, the broad and idealistic concepts of dignity, civilized standards,
humanity and decency are the hallmarks to be applied. The court added the
following caveat:
We do not mean to indicate by our present ruling that it is the
function of the courts to superintend the treatment and discipline of
prisoners in penal institutions. This is the responsibility of those in
charge of the prison itself and those officers, both state and local, who
are given supervisory powers. We also emphasize, that habeas corpus
should not be entertained on the slightest pretext or merely to correct
prison conditions which can be remedied through an appeal to prison
authorities or to an administrative agency. But, we do mean that where
the conditions of the confinement are so cruel and callous as the
evidence in the present case establishes, the courts may grant relief
through habeas corpus in order to protect the petitioner's
fundamental and basic rights. (Emphasis added.)
Petitioner claims that despite the fact that he is provided an alternative protein
diet at his request, and that all inmates in SCI Camp Hill as well as staff eat the same
food prepared from the same kitchen, that he does not receive sufficient calories. He
complains that he is not fed on occasions. The rule in the SMU is that meals are
announced and when the meal is delivered to the prisoner's cell he must have his cell
light on and be standing at the door ready to take it. Petitioner has not missed any.
-12-
98-0448 MISCELLANEOUS
meals that he has not slept through or refused to take. Petitioner complains about
the night light in his cell and that he is not provided sufficient hygienic materials. He
maintains that on one occasion he was put into a cell that he knew to have been
used by an inmate who had tuberculosis and hepatitis C. Notwithstanding, petitioner
has refused to undergo a test for tuberculosis. Petitioner claims that he does not
receive adequate medical treatment but his medical records show that he is in good
health and has no significant medical problems. Petitioner has no history of any
mental health problems. He recently claimed that his heart was fluttering. He was
fitted with a heart monitor that showed no problem and he has had an EKG.
Petitioner complains that he is not sufficiently mentally stimulated by the education
programs that are available to him in Phase ~/. He makes a general complaint about
the quality of the law library. He claims that he is retaliated against for filing lawsuits
which we find baseless. He complains about the limitations placed on his mailing
materials to his family. Petitioner believes that he does not get sufficient outside
exercise which for Phase V inmates is one hour each five days. He alleges that he
was assaulted by correction officers on December 9, 1997.5 An officer involved in the
incident testified that petitioner became disruptive when he was being taken to an
outside yard. As he was being taken back to his cell petitioner slumped down on
some stairs between tiers and said that he would have to be dragged back. Two
5. This is his only complaint of physical abuse since he was admitted to the
SMU on July 15, 1997.
-13-
98-0448 MISCELLANEOUS
correction officers pulled petitioner up and carried him to his cell. Petitioner said that
he was injured and he was seen by a medical staff person to whom he complained "1
was carried up the steps, forcefully by the COs." Petitioner said that he had pain in
the cranial region. There were no visible signs of contusions or lacerations. There
was a superficial abrasion in the tibial region. Petitioner was advised to sign up on
sick call the next morning but he never did.
~.,,After examining all of the evidence presented in this case we find that petitioner
is not being subjected to cruel and inhuman punishment. We repeat what we said in
Jacobs v. Lehman, supra:
Just as there are people in all walks of life who deal with others
poorly, there are likely some personnel within the SMU who do not
always treat the inmates as they should be treated. However, after
examining all of the evidence, we are satisfied that there is no pattern of
mistreatment of the inmates in the SMU. Quite to the contrary, we find
that the staff goes the extra mile in working with their difficult charges in
a demanding and dangerous effort to successfully integrate them back
into the general populations of the state prison system. There is no
doubt that the level of confinement and restrictions imposed on inmates
in the SMU is formidable. A change of conduct and attitude over time is
the only way an inmate can progress through the demanding phases of
the SMU and return to general population. Obviously, that is very
difficult for inmates who are the most disruptive, and sometimes the
most dangerous, in the entire Pennsylvania prison system. These
inmates have earned their way into the SMU, many of them by
assaulting staff or other inmates, and they must earn their way out. The
physical setting is spartan and creature comforts are minimal; however,
the SMU is as safe for an inmate as a prison setting for disruptive and
dangerous prisoners can reasonably be. The facility is new, sanitary,
well-maintained and well-staffed. It is not for this court to second guess
the level of confinement and control exercised over these inmates
because of their past behavior and, often, their intransigent behavior
within the SMU. We find that these inmates are not subject to serious
deprivations of constitutional rights whereby relief is warranted from any
-14-
98-0448 MISCELLANEOUS
conditions that would constitute cruel and inhuman punishment under
the Eighth Amendment. Their individual difficulties regarding the
conditions of their confinement can and should be addressed through
prison grievance and appeal procedures, not habeas corpus. (Footnote
omitted.) ~
For the foregoing reasons, the following order is entered.
AND NOW, this~
ORDER OF COURT
day of April, 1999, the within petition for a writ of habeas
corpus, IS DENIED.
Ishango Mike Bundy, AF-5413, Pro se
SCI Camp Hill
P.O. Box 200
Camp Hill, PA 17001-0200
By the Court,
Edgar B~. Bayley, J.\
Robin M. Lewis, Esquire
Assistant Counsel
Pa. Department of Corrections
55 Utley Drive
Camp Hill, PA 17011
For Respondents
: saa
-15-