In the course of serving a term of imprisonment, Francis Bloeth was transferred from New York State's Adirondack Correctional Treatment and Evaluation Center to its Attica Correctional Facility. On the day following his arrival at Attica, Bloeth was placed in protective confinement in Housing Block Z (HBZ), where his contact with the general inmate population was restricted. The prisoner immediately instituted a pro se civil rights action, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3),1 against the superintendent of the prison, attacking the lawfulness of his confinement in HBZ and requesting damages and injunctive relief.2 With affidavits from both parties before him, Chief Judge John T. Curtin of the United States District Court for the Western District of New York on June 7, 1974, dismissed the complaint in effect, thereby granting summary judgment against the plaintiff. See United States ex rel. Haymes v. Montanye, 505 F.2d 977, 979 (2d Cir. 1974).

Appropriately citing Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc ), as the controlling precedent in this case,3 the appellant contends that the district court erred in concluding that the process due him under Sostre was in fact afforded him by the prison officials in confining him in HBZ.4 Guided by our prior interpretation of Sostre in a protective confinement context in United States ex rel. Walker v. Mancusi, 467 F.2d 51 (2d Cir. 1972), we must disagree and therefore affirm the order below.

In Sostre, supra, 442 F.2d 178 at 198, we stated:

If substantial deprivations are to be visited upon a prisoner, it is wise that such action should at least be premised on facts rationally determined. This is not a concept without meaning. In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him, and afforded a reasonable opportunity to explain his actions. (Citations omitted.)

Since Bloeth's confinement was protective as opposed to punitive i. e., effected to guard against foreseeable harm rather than to discipline for past infractions he suffered under New York law no loss of privileges or good time.5 Chief Judge Curtin could reasonably have found, then, that the deprivation experienced by the appellant was relatively insubstantial. And adjusting downward Sostre's flexible confrontation and hearing requirements to comport with the magnitude of the deprivation, cf. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), one may conclude that Sostre was satisfied in these regards by the opportunities given Bloeth to contest the basis for his protective confinement in writing6 and at weekly meetings with the superintendent. Compare United States ex rel. Walker v. Mancusi, supra. Furthermore, the district court also acted well within its discretion in finding that the prison administration's statement of the evidence against Bloeth7 satisfied the standards laid down in Sostre.8 For if "(p) rison authorities must of necessity be allowed wide discretion in the use of protective confinement for the purpose of protecting the safety and security of the prison and its general population," United States ex rel. Walker v. Mancusi, supra, 467 F.2d 51 at 53, then those officials must perforce be permitted to justify their decisions to order protective confinement in terms as relatively unspecific as those used in the instant case.

Finally, in view of Bloeth's criminal record,9 the several recent incidents of his resisting orders from prison officials10 and his frequent transfers of late between state facilities,11 the district court cannot be faulted for giving great weight to the prison officials' conclusion that Bloeth presented "a clear and imminent danger to the facility, its employees and inmates because of past action and attitude."12 And in deferring in large measure to that conclusion, the district court could quite properly have found that Bloeth's protective custody of 35 days did not constitute an unduly long observation period.

The order of the district court in effect granting summary judgment to the defendant is therefore affirmed.

Affirmed.

I concur. The issues, however, are troublesome.

Disciplinary proceedings in prisons or jails utilize a matrix with which courts are familiar a charge that a specific forbidden act has been committed and limited discretion to "punish" on a finding of guilt. Administrative segregation in correctional institutions presents less familiar territory a judgment that dangers may exist in the future and an undefined discretion to "protect."

The possibilities of arbitrariness and of abuses in this second category of cases are obvious. Yet, it is equally clear that there are great potential dangers when large numbers of criminals, many with demonstrated tendencies towards violence and with severe emotional and intellectual problems, are forced into the close, tension-provoking quarters of our prisons. How to balance the need for fairness and the demand for effective authority in such circumstances is a matter courts have only begun to consider. See, e. g., Newkirk v. Butler, 499 F.2d 1214, 1217 (2d Cir. 1974), cert. granted, --- U.S. ---, 95 S. Ct. 172, 42 L. Ed. 2d 138 (1974); Gomes v. Travisono, 490 F.2d 1209, 1213-14 (1st Cir. 1973), remanded, 418 U.S. 909, 94 S. Ct. 3200, 41 L. Ed. 2d 1155 (1974) (relying on Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), setting minimum due process requirements in prison disciplinary hearings); United States ex rel. Walker v. Mancusi, 467 F.2d 51 (2d Cir. 1972); Wilson v. Beame, 380 F. Supp. 1232, 1235-36 (E.D.N.Y.1974) (protective segregation prior to conviction); Ault v. Holmes, 369 F. Supp. 288, 290-91 (W.D.Ky.1973) (administrative segregation when prisoner placed himself in position "detrimental to his own welfare"); Hoitt v. Vitek, 361 F. Supp. 1238, 1251-52 (D.N.H.1973), aff'd sub nom. Laaman v. Vitek, 502 F.2d 1158 (1st Cir. 1973) ("quarantine segregation" at receiving prison); Bowers v. Smith, 353 F. Supp. 1339, 1345 (D.Vt.1972) ("safekeeping status" based on prisoner's prior record of escapes); Urbano v. McCorkle, 334 F. Supp. 161, 168 (D.N.J.1971), aff'd, 481 F.2d 1400 (3d Cir. 1973) ("prisoners who are confined to administrative segregation for the good of the institution should be entitled to the same minimal due process that is afforded prisoners who are confined to segregation for disciplinary infractions"); Long v. Harris, 332 F. Supp. 262, 264 (D.Kan.1971), aff'd, 473 F.2d 1387 (10th Cir. 1973) (describing Bureau of Prisons procedures for "segregated confinement"); Bundy v. Cannon, 328 F. Supp. 165, 173 (D.Md.1971). See also Note, "Procedural Due Process in the Involuntary Institutional Transfers of Prisoners," 60 U.Va.L.Rev. 333 (1974).

No information presented to us indicates that the New York state correctional authorities have yet provided fully satisfactory standards and procedures to determine when and how prisoners may be segregated administratively for their own protection or that of other inmates and personnel when they have, while in custody, committed no act warranting disciplinary action. Nevertheless, the case before us does not provide a suitable factual basis for a full consideration of the problem.