This is an appeal from a final judgment of the district court in an action brought by a Pennsylvania prisoner, Gregory S. Sourbeer, under 42 U.S.C. Sec. 1983. Ernest S. Patton, Ronald Marks, Harvey Bell, and William Harrison ("the appellant officers") were found liable for $1,970 in damages for violating Sourbeer's due process rights. Sourbeer cross-appeals from the denial of certain other claims. For the reasons that follow, we will affirm in part, reverse in part, and remand for further proceedings.

On October 4, 1976, Sourbeer was convicted, in the Court of Common Pleas of Lancaster County, Pennsylvania, of murdering his mother. Though still unsentenced, he was transferred from the Lancaster County jail to the State Correctional Institution at Camp Hill ("SCI-Camp Hill") on October 13, 1976. At that time he was fifteen years old. The Lancaster County authorities asked to have Sourbeer transferred because they viewed him as a security risk due to his age and the nature of his offense, and because they felt he could receive proper supervision at SCI-Camp Hill.

Upon his arrival at SCI-Camp Hill, Sourbeer was classified as an H.V.A. ("Hold for Various Authorities") prisoner because of his unsentenced status. From October 13, 1976 until October 27, 1977, when he was returned to Lancaster County for sentencing, Sourbeer was housed in the Restricted Housing Unit ("R.H.U.") at SCI-Camp Hill in "administrative custody" status. The R.H.U. is a separate wing that houses inmates who are disciplined for misconduct or who are segregated from the general population for administrative reasons. It is the most secure housing area at SCI-Camp Hill.

During his confinement in administrative custody, Sourbeer was denied entertainment and recreational privileges, required to eat all his meals in his cell, permitted only one hour of exercise outside his cell per day, Monday through Friday, and denied regular visiting privileges (though, on eight separate occasions, Sourbeer had visits from relatives and attorneys). He was not permitted to attend religious services in the prison chapel, use the prison library, or participate in educational and vocational training programs. Sourbeer was permitted to designate a spiritual advisor who could make unlimited visits, but he did not do so. During his confinement in administrative custody, Sourbeer never received a complete psychological or psychiatric examination, nor was he ever charged with any misconduct.

After being sentenced in Lancaster County, Sourbeer was returned to SCI-Camp Hill and, on December 8, 1977, placed in general population. During 1978, while in general population, Sourbeer attended religious services five times.

Throughout the period of Sourbeer's confinement in administrative custody, regulations were in effect in Pennsylvania that established procedures and substantive standards governing the use of restrictive housing in state correctional institutions and regional correctional facilities. The Supreme Court of the United States had occasion to consider these regulations in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), and held that they created a liberty interest in general population status that was protected by the Due Process Clause of the fourteenth amendment. ("[W]e are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest." 459 U.S. at 472, 103 S.Ct. at 871.) For convenience, we shall refer to these regulations as Administrative Directive 801.1

Under the Directive, administrative custody was for prisoners requiring closer supervision or protection than is provided in general population, and for temporary assignment pending further classification. The Directive establishes, for each institution, a Program Review Committee ("P.R.C.") to oversee restrictive housing cases. Appellant officers Bell, Marks, and Harrison were, at one time or another, members of the P.R.C. that reviewed Sourbeer's case. The P.R.C. was required to conduct an in-person interview with each inmate in administrative custody at least once every thirty days. Appellant Patton, as Superintendent of SCI-Camp Hill, was responsible for reviewing the P.R.C.'s decisions.

Apart from the Directive, during the period relevant to this case, the Commissioner of Corrections promulgated administrative memoranda establishing policies for H.V.A. prisoners. The policy in effect when Sourbeer arrived at SCI-Camp Hill provided: "Although it may be desirable and necessary to segregate H.V.A. cases, there is no legal requirement to keep H.V.A. cases physically separated, when programmatic considerations warrant housing with sentenced inmates, this is permissible."

On January 7, 1977, the Commissioner issued a memorandum revising this policy. It stated:

Generally, H.V.A. cases shall be assigned to Administrative Custody. Exceptions are: 1) Medical cases requiring hospital or infirmary placement. 2) Disciplinary cases from the county or as a result of misconduct who require disciplinary custody. The institution shall determine the level of Administrative or Disciplinary custody (close or maximum) based on the individual circumstances on a case by case basis.... H.V.A. cases are excluded from program participation and work assignments. They are limited to the routine activities of the Administrative Custody Unit.

On April 7, 1977, a new memorandum on H.V.A. cases was issued. This one stated that such inmates should be initially placed in administrative custody, pending a hearing to be held in accordance with Administrative Directive 801.

The district court found that the P.R.C. reviewed Sourbeer's case on October 14, 1976, one day after his placement in the R.H.U. Sourbeer was not present on that occasion, and he was not afforded an in-person interview until November 17, 1976. At that time the P.R.C. gave the following as its reasons for continuing him in administrative custody:

Subject is here from the Lancaster County Prison for Administrative reasons. He is awaiting trial on a murder charge. We will continue subject in A.C. as we get to know him and he adjusts to the institution.

On December 15, 1976, Sourbeer was again seen by the P.R.C. and continued in administrative custody. The reason given was as follows:

Subject is here from Lancaster County & charged with murder. He is in need of close supervision & structure at this time. We will continue him in A.C. & work with him in the hopes he can be placed in general population.

Subsequent monthly reviews produced the following statements of reasons for keeping Sourbeer in administrative custody:

Subject is a transfer from Lancaster County for security reasons. He remains in A.C. for his own protection. [January 12, 1977]

H.V.A. case who has been charged with murder. Due to his status must remain in A.C. status. Currently under hospital care. [February 16, 1977]

Mr. Sourbeer was interviewed today. No progress has been made on the litigation or his bail status. [March 16, 1977]

Subject is 16 years old & from Lancaster County awaiting trial for murder. He was transferred here from the county for security reasons & his age. Continue in A.C. for his protection & the fact he is unsentenced. [April 13, 1977]

Subject is here from Lancaster County & is awaiting trial for murder. Subject is 16 years old & has special programs needs at this time that require an administrative custody setting. [June 8, 1977]

Subject is a transfer from Lancaster County for protective custody & is awaiting trial for murder. He will remain in A.C. for programmatic reasons. [July 6, 1977]

H.V.A. from Lancaster Co. Murder charge pending. Expects court action in September. Continue on present status due to nature of the case. No problems indicated. Remain in A.C. [August 10, 1977]

Subject is an H.V.A. from Lancaster County & awaiting trial for murder. In light of his H.V.A. status & the murder charge his program needs can best be suited in A.C. Other: Security. [September 13, 1977]

H.V.A.--from Lancaster County. Murder charge pending. Subject is an H.V.A. from Lancaster County. He has been found guilty of murder & not sentenced. He is awaiting disposition of his appeal. In light of his H.V.A. status & charge his programmatic needs can best be served in A.C. [October 12, 1977]

Sourbeer filed a Sec. 1983 complaint on June 14, 1979, alleging, principally, that his confinement in administrative custody violated his rights to due process under the fourteenth amendment (both in the initial placement and the failure to provide meaningful periodic reviews) and to the free exercise of religion under the first amendment. Stipulations of undisputed facts and cross-motions for summary judgment were filed. On April 2, 1984, the district court denied the cross-motions for summary judgment, holding as a matter of law that defendants were not entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), and finding that further factual development was necessary to determine the actual basis for Sourbeer's confinement. A bench trial was held on January 22, 1985. Sourbeer testified on his own behalf, and presented an expert psychiatric witness. Appellant officers Marks and Patton testified for the defense, along with their own psychiatric expert.

The district court handed down its findings of fact and conclusions of law on March 20, 1985. The court held that Sourbeer's due process rights were not violated by his initial confinement in administrative custody for 35 days prior to any hearing, and that the reviews conducted in November and December of 1976 comported with the requirements of due process. It further held that his confinement between January 7 and April 7, 1977 could not be subjected to due process scrutiny because the H.V.A. policy then in effect did not permit H.V.A. inmates to be placed in general population, thereby vitiating Sourbeer's liberty interest. The court did, however, hold that Sourbeer's due process rights were violated by his confinement during the period from the P.R.C. review on April 13, 1977 until his release from administrative custody on October 27, 1977, because "over time reasons which would have justified Sourbeer's early detention in administrative custody were applied in a rote fashion in later reviews when experience should have led officials to let Sourbeer into the general population." The court awarded Sourbeer $1,970.00 in damages, representing $10 for each day of unlawful confinement.2 The district court rejected Sourbeer's free exercise claim, finding that his complaint was not credible or sincere.

The appellant officers contend that the district court erred in finding a due process violation and that, in any event, they are entitled to qualified immunity from liability. In his cross-appeal, Sourbeer contends that the district court erred in finding no due process violation in his initial confinement, that he had no liberty interest between January 7 and April 7, 1977, and that his free exercise rights were not violated. He also claims that $10 per day is not adequate compensation for the period of unlawful confinement. In the sections that follow, we shall address each of these contentions.

A. The Initial Placement In Administrative Custody

Sourbeer was convicted of the first degree murder of his mother on October 4, 1976, and transferred from the Lancaster County jail to SCI-Camp Hill on October 13. The Lancaster authorities viewed him as a security risk because of his age (15) and the nature of his crime. He was classified H.V.A. because of his unsentenced status, and placed in administrative custody. The following day, the P.R.C. reviewed Sourbeer's case and determined that he should remain in administrative custody. Sourbeer was not present at that review. His first in-person review occurred on November 17, 1976, 35 days after being placed in administrative custody. Sourbeer contends that this delay violated the due process requirement that the "proceeding must occur within a reasonable time following an inmate's transfer...." Hewitt v. Helms, 459 U.S. at 476 n. 8, 103 S. Ct. at 874 n. 8.

The district court rejected this contention, stating: "Prison officials who had no personal knowledge of an inmate transferred from a county prison after his conviction of murder, could constitutionally segregate that inmate for a period of time in the interest of prison security especially when the transferring county authorities did so because they considered the inmate a security risk who should be placed in maximum security." Sourbeer cannot cite any cases specifically supporting his contention that this was error, noting only that in Hewitt v. Helms, under the rather different circumstances of a prisoner awaiting a disciplinary proceeding, a hearing five days after the placement in administrative custody was deemed timely. This, of course, does not necessarily mean that 35 days is unreasonable in the instant case.

Though it is a close question, we think that under the specific circumstances of this case, as noted by the district court, the 35-day wait did not rise to the level of a due process violation.

B. Sourbeer's Liberty Interest, January 7 to April 7, 1977

The district court did not subject Sourbeer's confinement in administrative custody during the period from January 7 to April 7, 1977 to due process scrutiny because it concluded that a memorandum from Corrections Commissioner Robinson, in effect during this period, effectively extinguished any liberty interest that H.V.A. prisoners had in general population status. We hold that it was error to conclude that Sourbeer had no protectible liberty interest during this period, and accordingly will reverse that part of the district court's judgment, and remand for further consideration of whether Sourbeer was afforded due process during that period.

Under Hewitt v. Helms, it is clear that Administrative Directive 801 gave Pennsylvania prisoners a protected liberty interest in general population status. The district court's holding that Sourbeer had no protected liberty interest between January 7 and April 7, 1977, even though Administrative Directive 801 was in effect, was based on the existence of a second "regulation"--really a memorandum from Commissioner of Corrections Robinson dealing with H.V.A. prisoners. It provided that, except in medical or disciplinary cases, H.V.A. prisoners were to be kept in administrative custody, leading the district court to conclude that Sourbeer had no liberty interest in general population status while this memorandum was in effect.

The district court's conclusion depends on the validity of one of two premises: (1) Administrative Directive 801 did not, by its own force, create a liberty interest applicable to H.V.A. prisoners, but did so only when buttressed by a separate H.V.A. memorandum to that effect; or (2) the Directive did create such an interest, but could be unilaterally abrogated by memoranda issued by the Commissioner. Neither of those premises is valid. In Drayton v. Robinson, 719 F.2d 1214 (3d Cir.1983) this court had occasion to consider the interrelation of Administrative Directive 801 and the H.V.A. memorandum, and held that the Directive by its terms applies to H.V.A. prisoners, giving them a protectible liberty interest in population status regardless of the contents of the H.V.A. memorandum. 719 F.2d at 1218. Thus, unless the Commissioner of Corrections can take away--by administrative fiat--a liberty interest previously created through duly promulgated, published, and codified regulations, Sourbeer had a protectible liberty interest throughout the period of his segregation. We think it is axiomatic that, except perhaps in exigent circumstances not present here, the Commissioner has no such power.3 Precise procedures for the promulgation and amendment of all administrative regulations appear at 45 Pa.Stat.Ann. Secs. 1201-1208 (Purdon Supp.1985). They constitute a "rule of recognition," see generally H.L.A. Hart, The Concept of Law 97-107 (1961), for valid regulations. It appears that these procedures were followed by the Commissioner with respect to Administrative Directive 801,4 but not with respect to the H.V.A. memorandum. Thus, the H.V.A. memorandum cannot be accorded a status under Pennsylvania law superior, or even equal, to that of Administrative Directive 801.5 We conclude that Sourbeer did have a protected liberty interest during the period January 7 to April 7, 1977. It will be left for the district court to determine whether Sourbeer was deprived of this interest without due process of law.

The district court held that Sourbeer's confinement in administrative custody between April 13 and October 27, 1977 violated his due process rights, because, it found, "over time reasons which would have justified Sourbeer's early detention in administrative custody were applied in a rote fashion in later reviews when experience should have led officials to let Sourbeer into the general population." The appellant officers contend that, under the guise of finding a failure to provide due process, the district court has in fact substituted its substantive judgment for the judgment of prison officials. They argue that constitutionally adequate procedures were followed, and that greater judicial deference is due their professional judgment. Though we agree with their assertion that considerable deference must be given to the judgment of prison officials, see Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), we believe that they mischaracterize the district court's holding in this case--the district court did in fact find liability because of a defect in the "process," as opposed to the "substance," of their decisionmaking.

There would seem to be no question under Hewitt v. Helms that the informal, monthly review procedures established by Administrative Directive 801 were facially adequate to protect the prisoners' liberty interest in remaining in general population. Nor is there any contention that the appellant officers did not follow the letter of these regulations during the period for which the district court found a due process violation. As we understand the district court's opinion, it found that due process was violated because the monthly reviews, from April 1977 on, were perfunctory, thus denying Sourbeer the most fundamental right of due process: a meaningful opportunity to be heard. See Paratt v. Taylor, 451 U.S. 527, 540, 101 S. Ct. 1908, 1915, 68 L. Ed. 2d 420 (1981). We do not share the concern of the appellant officers over the fact that the district court examined the reasons given for Sourbeer's continued confinement in administrative custody. As this court has noted previously, "[t]o insure that periodic review does not become simply a sham, the content and substance of that review must be scrutinized under the illumination of the fourteenth amendment." Mims v. Shapp, 744 F.2d 946, 954 (3d Cir.1984); see also Hewitt v. Helms, 459 U.S. at 477 n. 9, 103 S. Ct. at 874 n. 9.

The finding that the purported justifications were simply being applied in a rote fashion should not be disturbed unless clearly erroneous. There appears to be adequate support for this finding. The district court stated:

Defendant Marks voiced some concern at trial about plaintiff's withdrawn, standoffish, uncommunicative behavior and "bad attitude," but plaintiff was not issued any misconducts during his stay in administrative custody. In this light, these general observations of Sourbeer's personality cannot justify his segregation. Significantly, while there was some concern about Sourbeer's personality, he was not given any psychiatric or psychological evaluations during his stay at Camp Hill. Finally, and more importantly, Sourbeer's segregated position seems to have resulted simply from his HVA status. Despite the revised HVA memo issued on April 7, 1977, one-half of the periodic reviews from April 24, 1977 onward noted plaintiff's HVA or unsentenced status as a reason for keeping him in administrative custody. Defendant Marks admitted that this was one reason for plaintiff's segregation. Despite the prison officials' stated concern about plaintiff's "programmatic needs," among other things, shortly after Sourbeer was sentenced by the Lancaster County Court he was moved into the general population.

App. at 190a (citations omitted).

We find it significant that instead of calling as witnesses persons who had professional dealings or day-to-day contact with Sourbeer, only appellants Patton and Marks, who had only limited or indirect contact with Sourbeer and lacked professional training, testified. Had Bell and Harrison, who knew Sourbeer and had training in counseling and psychology, testified, the officers' case might have been more compelling. It is also interesting to note that the P.R.C. reports fairly consistently misstated Sourbeer's status as awaiting trial for murder, when he in fact was convicted but unsentenced. This careless repeated error is additional support for the district court's finding that Sourbeer was not afforded meaningful process.

Sourbeer contends that his right to freely exercise his religion was abridged during his stay in administrative custody because he was not permitted to attend congregational worship services. The district court rejected this claim on two grounds. First, the district court held that the prohibition against administrative custody inmates attending worship services served a valid security purpose, and was therefore constitutional under St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.), rehearing denied, 643 F.2d 103 (3d Cir.1980).6 Alternatively, the court found that the free exercise complaint was "not credible or sincere."

A sincere religious belief is a prerequisite to any free exercise claim. See Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.1981), cert. denied, 456 U.S. 908, 102 S. Ct. 1756, 72 L. Ed. 2d 165 (1982). Unless the district court's finding of insincerity is clearly erroneous, we need go no further. Sourbeer argues that the finding was based on an impermissible inference from the fact that during 1978, while in general population, he attended services only five times. He cites Cole v. Fulcomer, 588 F. Supp. 772 (M.D.Pa.1984), reversed on other grounds sub nom. Cole v. Flick, 758 F.2d 124 (3d Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 253, 88 L. Ed. 2d 260 (1985), where the court rejected evidence that a Native American Indian prisoner had not always been religious, and did not observe his religion in every respect, as indicative that his desire to wear his hair at a traditional length was not a sincere religious belief. Though we may agree that courts should not put undue weight on past or unrelated departures from orthodoxy, such is not the case here. The court below relied on evidence relating to the precise practice at issue--attending worship services--during the time period immediately after the restriction at issue was lifted. The court also took note that Sourbeer failed to designate a spiritual adviser who could visit with him in the R.H.U., as he would have been permitted. We cannot say the court's finding was clearly erroneous.

The appellant prison officers contend that even if they did violate Sourbeer's due process rights, they are entitled to qualified immunity from liability for damages under the rule of Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Harlow held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. In People of Three Mile Island v. NRC, 747 F.2d 139 (3d Cir.1984), this court adopted a broad view of what constitutes an established right of which a reasonable person would have known, "requiring some but not precise factual correspondence [with precedents] and demanding that officials apply general, well developed legal principles." 747 F.2d at 144.

The district court found that by the time relevant here, 1976-77, analogous Third Circuit precedents, specifically Gray v. Creamer, 465 F.2d 179 (3d Cir.1972), United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir.1973), and Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir.1973), clearly established that a liberty interest triggering due process rights was involved in administrative custody placements, and that procedural protections comparable to those outlined in Hewitt v. Helms were required. Appellant officers argue that these cases are distinguishable. Thus, we must briefly survey their facts and holdings.

Gray v. Creamer was a suit brought by prisoners who had been involved in publication of a prison newsletter that was shut down by prison officials. They alleged, inter alia, that they had been placed in punitive and administrative segregation without being charged with violations of prison regulations or being given a hearing. 465 F.2d at 183. Though the court did not see fit to state on the basis of the record before it precisely what process was due, it did reverse the dismissal of the prisoners' suit, holding "that the transfer of a prisoner from the general population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances not evident in the pleadings, meet minimal due process requirements." 465 F.2d at 185 (footnote omitted).

United States ex rel. Tyrrell v. Speaker expanded somewhat on the Gray holding. Tyrrell was classified as a security risk after an escape attempt, and placed in punitive segregation. The court held that such a transfer could be made only after a hearing, on "facts rationally determined." 471 F.2d at 1203.

In Biagiarelli v. Sielaff, the plaintiff prisoner was placed in administrative custody after officials received information that he was involved in an escape conspiracy. The court held that he was entitled to "either written notice of the basis for his removal from the prison population and an opportunity to rebut the charge, or a hearing." 483 F.2d at 512. The court declined to state a general rule as to when the notice or hearing would have to be provided, stating that it "depended on when the threat to the institution subsided, regardless of whether he was held in punitive or administrative segregation." Id.

The appellant officers attempt to distinguish Gray, Tyrrell, and Biagiarelli on the ground that they did not involve unsentenced inmates such as Sourbeer. They suggest, however, no basis for a reasonable officer to assume that an unsentenced inmate is entitled to less process than sentenced inmates, and we can think of none.7 If the People of Three Mile Island standard is to have any meaning, insofar as it requires "some" but not "precise" factual correspondence with precedents and that officials apply general legal principles, then it seems to us that Sourbeer's unsentenced status cannot absolve the prison officers from liability.

The appellant officers further contend that this early line of cases did not put them on notice of Sourbeer's rights because this court relied on a faulty premise ultimately rejected by the Supreme Court in Hewitt v. Helms--i.e., that the "Due Process Clause implicitly creates an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters." 459 U.S. at 466-67, 103 S.Ct. at 868-69. They are correct in pointing out that under Hewitt v. Helms, the source of Sourbeer's liberty interest is not the Constitution itself, but rather is Administrative Directive 801, and that earlier Third Circuit opinions to the contrary therefore had a faulty rationale. We do not, however, believe that this means the appellant officers were not on notice of Sourbeer's liberty interest, and his concomitant right to due process. That right was established in the Gray/Tyrrell/Biagiarelli line of cases and reaffirmed in Hewitt v. Helms. A reasonable official should not fail to respect a person's constitutional rights because the rationale behind the cases establishing those rights may be faulty. Indeed, it is unrealistic to assume that officials are likely even to be aware of the legal reasoning behind applicable precedents. We conclude that Sourbeer's due process rights were clearly established within the meaning of Harlow and People of Three Mile Island, and that the appellant officers are liable to him for damages.8

The appellant officers raise one other argument on the immunity issue that is worthy of comment. They point out that the district court found that their failure to give Sourbeer adequate process was not intentional, but the result of gross negligence in the conduct of the periodic reviews. They argue that it was not established until Davidson v. O'Lone, 752 F.2d 817 (3d Cir.1984) (in banc), aff'd sub nom. Davidson v. Cannon, --- U.S. ----, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986), that a cause of action lies under the Civil Rights Act for grossly negligent conduct. Thus, they could not reasonably have been expected to know in 1977 that they would be held to such a high standard of care. We need not decide whether this is true,9 because we believe that the district court's gross negligence finding was superfluous to the resolution of the due process issue.

Cases such as Davidson, dealing with a state of mind requirement for Sec. 1983/due process actions, relate only to the highly unusual circumstance where the deprivation of life, liberty, or property the case is predicated upon was not intentional, as opposed to where the failure to provide adequate process was not intentional. For example, in Davidson prison guards negligently failed to take action to protect one prisoner who was threatened by another, allegedly "depriving" him of a liberty interest in being free of assaults. In the case of Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), guards negligently lost a prisoner's hobby kit, allegedly "depriving" him of property. In Daniels v. Williams, --- U.S. ----, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) it was alleged that a correctional deputy had negligently left a pillow on a stairway, causing the plaintiff to slip and thereby "depriving" him of a liberty interest. These cases, it is readily apparent, are of a highly unusual nature--the defendants had probably not even been aware until after the fact of the "deprivations" that would trigger due process concerns. "To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law." Daniels, 106 S. Ct. at 665 (emphasis added).

Here, in contrast, the keeping of Sourbeer in administrative custody--depriving him of liberty--was itself an intentional act. That being the case, it was not necessary for the district court to make any other state of mind finding. We know of no authority for the proposition that an intentional deprivation of life, liberty or property does not give rise to a due process violation because the failure to provide due process was without fault. If that were the rule, there would be no due process violation where an official who deliberately deprives a person of his life, liberty or property carefully follows established state procedures that are later found to be constitutionally inadequate, because the official would be without fault.10 Clearly, that is not the law. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Here the defendants deliberately deprived Sourbeer of liberty, and failed to provide process that was constitutionally required--it was unnecessary for the district court to determine whether that failure was intentional, grossly negligent, or without fault at all, because there would be a constitutional violation in any event. Our reading of the district court's opinion leads us to believe that the gross negligence finding was actually inserted only for the purpose of determining whether punitive damages were appropriate, not whether there was a violation of due process in the first instance. The district court's finding of gross negligence, therefore, does not alter our Harlow immunity analysis.

Sourbeer contends that $10 per day was insufficient to compensate him for the violation of his rights. He does not seem to contend that it was inadequate as a matter of law, or that it resulted from any clearly erroneous finding of fact. Indeed, he specifically declines to suggest an alternative calculation. We see no basis for disturbing the district court's award.

For the reasons set forth above, the judgment of the district court will be reversed insofar as it held that Sourbeer had no protected liberty interest between January 7 and April 7, 1977, and remanded for a determination of whether Sourbeer's due process rights were violated by his confinement in administrative custody during that period. It will be affirmed in all other respects. Costs taxed against appellants in No. 85-5237. Each side to bear its own costs in No. 85-5273.

Excerpts from Administrative Directive 801 (effective June 1, 1974):

....

1. The Program Review Committee shall be composed of the Deputy Superintendent for Operations, the Deputy Superintendent for Treatment Services and the Director of Treatment. In the absence of one of the foregoing members, the Superintendent shall designate an appropriate substitute.

....

4. The Program Review Committee shall review bi-weekly those cases of residents held in Administrative Custody by self-imposed confinement, administrative protective confinement, transfers, etc.

Support Teams or counselors (in lieu of Support Teams) shall be responsible for providing the necessary status reports for this Committee to review these cases.

5. The Program Review Committee shall interview in persons at least once every 30 days those residents detained in Administrative Custody or the Behavior Adjustment Unit. Residents detained in this status for more than 30 days shall have their cases reported to the Commissioner of Correction, together with the rationale for such status and the particular programs prescribed.

....

The Bureau of Correction shall recognize the following housing categories for residents within state correctional institutions.

....

B. Administrative Custody--for residents requiring closer supervision or protection than is provided in the general population and for temporary assignment of residents pending further classification.

A. Administrative Custody housing shall be a specified group of cells in a designated section of a cellblock or infirmary.

1. Residents therein shall have all rights and privileges accorded the general population except for curtailment of freedom to move about the institution and engage in programs with the general population.

2. They shall retain all personal property with them.

3. The Program Review Committee may permit a form of internal work-release from this unit as a gradual process of return to general population status.

....

D. .... The Program Review Committee shall release a resident from Administrative Custody or the Behavior Adjustment Unit as soon as feasible.