private counsel, but that it could state a cause of action against the attorney who allegedly participated with the police officers in an unconstitutional search. The court stated that "It has been observed that the test of 'under color' of law is difficult to satisfy in the case of one other than a government official." 529 F.2d at 74.. Witnesses who testify at trial are not acting under color of state law. Taylor v. Nichols, 558 F.2d 561 (10th Cir. 1977); Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976); Triplett v. Azordegan, 570 F.2d 819 (8th Cir. 1978); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978). Where a federal prisoner is temporarily placed in a county jail in custody of state prison officials, the state officials are acting under color of state law for purposes of section 1983. Henderson v. Thrower, 497 F.2d 125 (5th Cir. 1974). Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977) held that a claim for malicious abuse of process sufficiently alleged an act done under color of state law. A State action was found to be lacking in Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976) en banc. The plaintiff alleged that prison guards had negligently left his cell door open after a security search. When plaintiff returned to his cell after a work assignment, his cell door was ajar and his personal belongings were strewn on the floor. copy of his trial transcript was missing. One of plaintiff's claims was that the guard's negligence in leaving his cell door open enabled an unknown person to remove the trial transcript from his cell. The court held that state action had ended before the plaintiff suffered his loss, and stated: "Here there was no state action depriving Bonner of property under the Fourteenth Amendment because any state action ended when the guards left the cell after the security search." 545 F.2d at 567. One requirement under the express terms of the Civil Rights Act is that the defendant must be a "person. 42 U.S.C. § 1983. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978) held that a municipality is a "person", thus overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), insofar as Monroe held that local governments were wholly immune from suit under section 1983: Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom Section 1983 applies. Local governing bodies, therefore, can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers. Moreover, although the touchstone of the Section 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other Section 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels On the other hand, the language of Section 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature constituted a constitutional tort. In particular, we conclude that a municipality cannot be held liable 436 U.S. at 690, 98 S.Ct. at 2035, 56 L. Ed. 2d at 635. The Court further stated: Since the question whether local municipal bodies sued under Section 436 U.S. at 701, 98 S.Ct. at 2041, 56 L.Ed.2d at 642. In footnote 55, 436 U.S. at 690, 98 S.Ct. at 2036, 56 L.Ed.2d at 635, the Court stated "local government officials sued in their official capacities are 'persons' under Section 1983 in those cases in which, as here, local government would be suable in its own name. a Further, in footnote 54, 436 U.S. at 690, 98 S.Ct. at 2035, 56 L.Ed.2d at 635, the Court stated that its holding was limited to local government units which are not considered part of the state for Eleventh Amendment purposes. The Court concluded: [A] local government may not be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983 [W]e have no occasion to address, and do not address, what the full contours of municipal liability under Section 1983 may be. 436 U.S. at 694, 98 S.Ct. at 2038, 56 L. Ed. 2d at 638. While a state may not be a "person" under section 1983,58 a state official is a "person. Rochester v. White, 503 F.2d 263 (3d Cir. 1974). A state agency is not a "person. Edelberg v. Illinois Racing Board, 540 F.2d 279, 281 n. 2 (7th Cir. 1976). The parole board is not a "person." Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977). This applies to claims for both money damages and injunctive relief. Bricker v. Michigan Parole Board, 405 F.Supp. 1340, 1342 (E.D. Mich. 1975). A prison board is not a "person." U.S. ex rel. Arzonica v. Scheipe, 474 F.2d 720 (3d Cir. 1973). C. Challenges to the Conditions of Confinement as Constitutional Violations--General Considerations The very nature of lawful incarceration "brings about the necessary withdrawal or limitation of many privileges and rights."59 In the past, federal courts adopted a hands-off approach, realizing that they were not adequately equipped to deal with problems of prison administration and reform.60 However, a prisoner is not stripped of all constitutional protections upon his imprisonment, 61 and courts have a duty to insure 58. Quern v. Jordan, U.S. S.Ct. L.Ed.2d 47 U.S.L.W. 4241 (March 5, 1979) held that Monell does not abrogate the Eleventh Amendment immunity of the states. See Section XI, D, 4 infra. 59. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501 (1974); Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). 60. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224, 235 (1974). 61. Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974). that a prison regulation or practice does not offend a fundamental constitutional guarantee. 62 "[T]here must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application."63 "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. "64 Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) discussed the problem of whether transfer of a prisoner to another institution stated a constitutional violation: Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges. We decline to so interpret and apply the Due Process Clause. federal courts do not sit to supervise state prisons, the administration of The which is of acute interest to the States. 427 U.S. at 228-29, 96 S.Ct. at 2540, 49 L.Ed.2d at 461. The Court also stated: We reject at the outset the notion that Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient 62. Procunier v. Martinez, supra note 60; Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 749, 21 L.Ed.2d 718 (1969). 63. Wolff, supra note 61, at 556, 94 S.Ct. at 2975, 41 L.Ed.2d at 951. 64. Id. at 560, 94 S.Ct. at 2977, 41 L.Ed.2d at 953. |