HomeMy WebLinkAbout94-0106 Civil JOHN A. NIGRO, JR., : IN THE COURT OF COMMON PLEAS OF
Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
ARTHUR AUXER, ROBERT BILOUS, :
GARY COONEY, KENNETH LEWIS, :
Respondents : NO. 94-0106 MISCELLANEOUS TERM
IN RE: PETITIONER'S MOTION FOR CONTEMPT OF COURT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this2~%ay of November, 1995, upon consideration of
Petitioner's Motion for Contempt of Court, following a hearing and
for the reasons stated in the accompanying Opinion, the motion is
DENIED.
BY THE COURT,
Jd ~6sley bl~J .....
John A. Nigro, Jr., Pro Se
CD-1017
SCI-Camp Hill
P.O. Box 200
Camp Hill, PA 17001-0200
Clifford D. Swift, Esq.
Assistant Counsel
Department of Corrections
2520 Lisburn Road
P.O. BOx 598
Camp Hill, PA 17001-0598
Attorney for Respondents
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JOHN A. NIGRO, JR., : IN THE COURT OF COMMON PLEAS OF
Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
ARTHUR AUXER, ROBERT BILOUS, :
GARY COONEY, KENNETH LEWIS, :
Respondents : NO. 94-0106 MISCELLANEOUS TERM
IN RE: PETITIONER'S MOTION FOR CONTEMPT OF COURT
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J.
Petitioner is an inmate at the State Correctional Institution
at Camp Hill, housed in the Special Management Unit (SMU).
Respondents are various officials or officers with the Department
of Corrections. On De~ember 5, 1994, this court' entered the
following order:
AND NOW, this 5th day of December, 1994,
upon consideration of Petitioner's Petition
for Writ of Habeas Corpus and for the reasons
stated in the accompanying Opinion, the
Petition is DENIED to the extent that it seeks
immediate release of Petitioner into general
population and GRANTED to the extent that
Respondents are directed not to extend
Petitioner's confinement in administrative
custody by means of a policy automatically
requiring his participation in each
administrative custody phase of the SMU
program, .with each phase having a minimum
period of 90 days.~
Both Petitioner and Respondents filed appeals from the order.
However, both appeals were subsequently withdrawn.2
Petitioner has now filed a Motion for Contempt of Court,
~ Nigro v. Auxer, 44 Cumberland L.J. 19, 29 (1994).
2 Praecipe, February 23, 1995, Nigro v. Auxer, Nos.
00011HBG95 & 53HBG95 (Pennsylvania Superior Court).
NO. 94-0106 MISCELLANEOUS TERM
alleging that Respondents have failed.to comply with the order. A
hearing on the motion was held on Tuesday, October 12, 1995.
Based upon the evidence presented at the hearing, the motion
will be denied.
STATEMENT OF FACTS
The factual background which resulted in the court's order of
December 5, 1994, is recited in the opinion which accompanied that
order and will not be repeated in detail here. In brief, the court
noted that a federal consent decree in May of 1978 provided for
adherence by state officials to Bureau of Corrections'
administrative directives, and that DC-ADM 802 required 30-day
reviews of an inmate's status in administrative custody in an SMU.
The court held that "a policy automatically requiring
[Petitioner's] participation in each administrative custody phase
of the SMU program, with each phase having a minimum period of 90
days," was incompatible with the directive and was not
permissible.3
In so holding, however, the court expressed the following
caveat:
[A] consideraaaable amount of discretion must
be left to prison officials in such matters,
and nothing in this Opinion is intended to
mandate a specific result following a given
periodic review by the program review
committee of Petitioner's status in the SMU.4
~ Nigro v. Auxer, 44 Cumberland L.J. 19, 29 (1994).
~ Id.
2
NO. 94-0106 MISCELLANEOUS TERM
The evidence at the hearing on Petitioner's Motion for
Contempt of Court showed that as of December 5, 1994, when the
court's order was issued, Petitioner was in Phase III of the SMU
program. He advanced to Phase II on January 10, 1995, and was
permitted to remain in that phase notwithstanding a misconduct that
occurred on or about February 22, 1995. However, another
misconduct occurred on or about March 8, 1995 (possession of
contrabandS), and a series of misconducts of a fairly serious
nature followed.
Specifically, on or about August 1, 1995, Petitioner refused
to Obey an order and threatened a staff member; on or about August
4, 1995, Petitioner threatened bodily harm to an employee,
threatened a staff member and used abusive language; and on or
about August 16, 1995, Petitioner refused to obey an order. As of
the hearing on October 12, 1995, Petitioner was in disciplinary
custody, as opposed to administrative custody, because of
misconducts.6 Testimony of William S. Ward, the present SMU unit
manager, characterized Petitioner as running "hot and cold" and
having poor impulse control, and this would appear to be accurate.
The import of the court's prior order was not that levels of
s The contraband was apparently a form of tobacco, hidden in
Petitioner's shoe.
I.e., in Phase V of the SMU program.
The course of Petitioner's status in the SMU program since
the court's order was as follows: Pre-December 5, 1994, to January
10, 1995 (Phase III); January 10, 1995, to March 8, 1995 (Phase
II); March 8, 1995, to July 6, 1995 (Phase III); July 6, 1995, to
post-October 12, 1995 (Phase V).
3
NO. 94-0106 MISCELLANEOUS TERM
administrative custody, involving diminishing degrees of
restrictiveness, were per se incompatible with the consent decree
and DC-ADM 802. In a given case, an inmate's participation in and
progression through more than one phase may be entirely warranted
prior to his or her release from administrative custody.
At the same time, the administrative directive as presently
written, when read in conjunction with the consent decree as
amended, clearly contemplates that a given 30-day review is to
include the question of the need to continue the inmate in
administrative custody at any level. Given Petitioner's history
and continuing behavioral problems, the court is unable to conclude
that there has been an abuse of discretion in this regard with
respect to the refusal of authorities to release Petitioner from
administrative custody, nor with respect to the specific levels of
administrative custody to which he has been subjected.
For this reason, the following order will be entered:
ORDER OF COURT
AND NOW, this ~day of November, 1995, upon consideration of
Petitioner's Motion for Contempt of Court, following a hearing and
for the reasons stated in the accompanying Opinion, the motion is
DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
4
NO. 94-0106 MISCELLANEOUS TERM
John A. Nigro, Jr., Pro Se
CD-1017
SCI-Camp Hill
P.O. Box 200
Camp Hill, PA 17001-0200
Clifford D. Swift, Esq.
Assistant Counsel
Department of Corrections
2520 Lisburn Road
P.O. Box 598
Camp Hill, PA 17001-0598
Attorney for Respondents
:rc
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