to invoke the protections of the Due Process Clause.

427 U.S. at 224, 96 S.Ct. at 2538, 49 L.Ed.2d at 458.

However, Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 1977) held that the classification of prisoners as special offenders upon their entrance into the federal prison system infringed upon the prisoner's right to liberty, and procedural protections were required since the classifications were used to restrict participation in prison rehabilitation programs. The court found that the unique constraints imposed on special offenders distinguished the situation from Meachum, where the interprison transfers were within the normal limits of custody.

Every legally cognizable injury which may have been inflicted by a state official acting under "color of law" does not establish a violation of the Fourteenth Amendment. Paul v. Davis, 424 U.S. 693, 699, 96 S.Ct. 1156, 1159, 47 L.Ed.2d 405, 412 (1976). The plaintiff must point to a specific constitutional guarantee safeguarding the interest he asserts has been invaded. at 700-01, 96 S.Ct. at 1160, 47 L.Ed.2d at 413.

Id.

Pell v. Procunier, 417 U.S. 817, 822-23, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501-02 (1974), identified three important functions of a correctional system as deterrence of crime, rehabilitation of those in custody, and maintenance of internal security. in light of these functions that constitutional challenges to prison regulations must be assessed.

It is

According to James v. Wallace, 406 F.Supp. 318, 328 (M.D. Ala. 1976), once it is determined that a prison policy advances one of the goals in Pell, the court must weigh the competing interests of the prisoner with the interests of the state in pursuing that goal. If no valid purpose is served by the restriction, then it may not stand.

However, the application of the "penological purpose" test in determining the constitutionality of conditions of confinement was held to be erroneous in Nadeau v. Helgemoe, 561 F.2d 411 (1st Cir. 1977). Although the district court had held,

The fact that defendants have granted
specific privileges and benefits to
the general population gives rise to
a presumption that those privileges
and benefits serve a legitimate

penological purpose; the wholesale

denial to a few of the exact same

privileges and benefits lifts the cloak

of that presumption from defendants' acts.

the court of appeals stated that: "at the present stage of development of the law relating to prisoners, the test used by the district court is not required by the Constitution." 561 F.2d at 415. The court further noted that "the proceedings in the district court, dominated as they were by the 'penological purposes' test, did not focus on possible administrative or fiscal justifications for the challenged prison practices. The court must now consider such justifications to see whether they constitute a rational basis or are wholly without substance. 561 F.2d at 419.

More recently, Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) held that regulations promulgated by the North Carolina Department of Corrections were not in violation of the Constitution. The department of corrections prohibited inmates from soliciting other inmates to join a prisoners' labor union, barred all meetings of the union, and refused to deliver packets of union publications mailed in bulk to several inmates for redistribution to other prisoners. The Court stated:

The District Court, we believe, got off on the wrong foot in this case by not giving appropriate deference to the decision of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement .

Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators.

433 U.S. at 125, 97 S.Ct. at 2538, 53 L.Ed.2d at 635.

The commissioner of the department of corrections had testified that the creation of an inmate union would result in increasing existing friction between inmates and prison personnel, and union inmates and non-union

inmates. The secretary of the department of corrections testified that the existence of a union could create a

divisive element within the inmate population, aggravating already existing tense conditions. The Supreme

Court determined that the district court had erred in concluding that the prison officials needed to show more:

In particular, the burden was not on
appellants to show affirmatively that
the Union would be "detrimental to
proper penological objectives" or
would constitute a "present danger to
security and order"
Rather
"[s]uch considerations 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.
The necessary and correct result

of our deference to the informed
discretion of prison administrators
permits them, and not the courts, to
make the difficult judgments concern-
ing institutional operations in
situations such as this.

11

433 U.S. at 128, 97 S.Ct. at 2539, 53 L.Ed.2d at 636.

1.

D.

Supervisory Personnel: Respondeat Superior,
Personal Involvement, Nonfeasance

Supreme Court Decisions

Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) determined that municipalities would not be liable for the actions of their employees under the doctrine of respondeat superior. 436 U.S. at 691, 98 S.Ct. at 1036, 56 L.Ed.2d at 636. In discussing the liability of local governments for the injuries inflicted by their employees, the Court stated:

In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable

under Section 1983 on a respondeat

superior theory.

436 U.S. at 691, 98 S.Ct. at 2036, 56 L. Ed. 2d at 638. The Court further stated:

We conclude, therefore, that

a local government may not be sued
under § 1983 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 § 1983.

436 U.S. at 694, 98 S.Ct. at 2038, 56 L.Ed.2d at 638. The Court also stated:

By our decision in Rizzo v. Goode, 423 U.S. 362 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised without any failure to supervise is

not enough to support § 1983 liability.

436 U.S. at 694 n. 58, 98 S.Ct. at 2037, n. 58, 56 L.Ed.2d at 637 n. 58. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) reversed the court of appeals' affirmance of the district court order directing law enforcement officials to draft for the court's approval a comprehensive program establishing adequate procedures for dealing with civilian complaints alleging police misconduct. The plaintiffs had alleged a pervasive pattern of illegal and unconstitutional mistreatment of minority citizens by police officers, and charged the mayor, city managing director, and police commissioner with conduct ranging from express authorization or encouragement of the mistreatment to failure to act to prevent its future recurrence. The Court found that:

Individual police officers not named as parties to the action were found to have violated the

423 U.S. at 371, 96 S.Ct. at 604, 46 L. Ed. 2d at 569. The indications of the Supreme Court in Monell and Rizzo, supra, that the doctrine of respondeat superior is not applicable in actions under section 1983, is generally in accord with the developing law in most of the circuits.

The United States Court of Appeals for the First Circuit affirmed the dismissal of an action against a police chief in Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), where a police officer had shot plaintiff's decedent in the course of an arrest. The complaint alleged that the police chief and the town had failed to instruct, train, educate, and control the police officer in the exercise of his duties. The court held that the complaint did not state a claim against the police chief:

Plaintiffs do not seriously contend
that § 1983 authorizes damages
liability where an individual had
no personal role in wrongdoing.
Such an actor by definition lacks
the bad faith required to expose
him to damages liability under § 1983