dissenting.
For purposes of analysis, the district court and the majority have divided the plaintiffs confinement in administrative segregation into three periods. The first was from October 13, 1976 to January 7, 1977. Because the initial assignment to segregation was based on security reasons and was intended to give prison officials an opportunity to become familiar with plaintiff, the district court found no liability. The majority affirms, noting that the original confinement “did not rise to the level of a due process violation.”
The second interval began on January 7, 1977, when the Commissioner issued a memorandum purporting to modify prison policy, and continued until April 7, 1977 when another memorandum was distributed. The district court concluded that during this interval the defendants’ decision to keep plaintiff in segregation did not infringe his constitutional rights. The majority, however, disagrees and remands for a determination of whether Sourbeer was deprived of a liberty interest without due process.
The third time span ran from April 7 to October 13, 1977. The district court found that the plaintiff’s segregation during that interval resulted in a due process violation. Liability was not based on intentional misconduct but rather on the grossly negligent manner in which the defendants conducted the plaintiff’s periodic reviews.
Although it had made a pretrial finding that defendants were not entitled to qualified immunity based on the record at that point, the district court did not reconsider that ruling in light of the factual findings after trial. Rather, on determining a violation had occurred, the district court simply awarded damages. The majority affirms the damage award on the ground that the district court’s finding of perfunctory reviews by defendants was not clearly erroneous.
The majority and I agree with the district court’s determination that the initial placement in administrative custody did not offend the Constitution, and that no damages are due for that period. Because I believe that defendants are entitled to qualified immunity, however I would deny damages for the second and third stages of confinement as well.
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), created a new objective standard for the application of qualified immunity. The purpose of the revised standard is to spare public officials from the expense, both in time and money, in defending against insubstantial damage claims. The shield of immunity applies if the law was unsettled when the conduct occurred. As the Supreme Court phrased it, “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments.” Id. at 818, 102 S.Ct. at 2738.
If there were any doubt about the standard after Harlow, it was set to rest in Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The district court was aware of Harlow and cited it in a pretrial memorandum, but Forsyth was decided after the district court entered judgment. In Forsyth, the Court stated that “Hindsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive factor is not that [the defendant’s] position turned out to be incorrect but that the question was open at the time of the act.” 105 S.Ct. at 2820. The Court repeatedly emphasized that the law must be “clearly established” and found that the defend*1109ants’ were entitled to immunity because the legality of a challenged wiretap which had occurred in 1970 was an “open” question at that time. The Supreme Court rejected the district court’s conclusion that the Attorney General was liable because “he gambled and lost on the resolution of [that] question.”
Forsyth is significant because it granted immunity to a individual with legal training who had extensive support personnel to assist in a highly professional evaluation of existing law. The position and resources of an Attorney General contrast sharply with those of middle management personnel in a state prison system who are administrators, not lawyers.
In Davis v. Scherer, 468 U.S. 183, —, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984), the Supreme Court ruled in favor of a qualified immunity claim even though the plaintiff proved that he had been discharged from state employment without constitutionally adequate notice and hearing. The Court stated, “Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard.”
Analysis of whether the rights that plaintiff alleges here were clearly established in 1977 is hampered by the generality of the district court’s findings. In its pretrial opinion denying immunity, the court referred to “formal hearings to determine housing categories.” In a memorandum denying reconsideration of that ruling, the court relied on Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir.1973); United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir.1973); and Gray v. Creamer, 465 F.2d 179 (3d Cir.1972). The court stated, “The clear import of those cases [particularly Tyrrell] is that prison authorities may not act arbitrarily in transferring a prisoner from the general prison population to segregation.” The district court believed this restriction was clearly established at the time the challenged acts occurred. However, the initial transfer to administrative custody, the issue which dominated the district court concern at pretrial, is not the problem here.
The defendants’ liability here arises from the plaintiff’s right to have “meaningful periodic reviews” after assignment to administrative custody. Plaintiff has not presented persuasive authority to establish that this was a clearly established right, nor to establish a useable definition of “meaningful” in constitutional terms.
It is undisputed that plaintiff was provided periodic reviews. The district court found that plaintiff was not kept in confinement because of his “bad attitude”, but apparently was retained because he was unsentenced. Some of the periodic reports noted that plaintiff was 16 years old and required segregation for his own protection. Monthly periodic reviews, “meaningful” or otherwise, are not necessary to determine whether an inmate has been sentenced or to detect a change in age.
The majority and the district court would extend by implication the holdings in Bia-giarelli, Tyrrell, and Gray to articulate the procedures required for the duration of segregated custody. Even if that reasoning suffices to establish a constitutional violation, it falls far short of the standard required to vitiate immunity. Those three cases did not establish clearly, or otherwise, the standards to be used in conducting periodic reviews or in determining when a prisoner should be released from administrative segregation.
Biagiarelli and Gray are limited to the initial transfer to administrative custody. They hold that a prisoner must be provided with notice and hearing before being transferred from the general population to segregated confinement. Those cases are in-apposite because they do not discuss what process is due after the initial transfer.
Tyrrell is somewhat closer factually to the case at hand but only to the extent that there the prisoner was unsentenced when he was placed in punitive (not administrative) segregation. Nonetheless the court’s opinion focused on the due process require*1110ments for the initial transfer, not events that occurred thereafter.
Consequently, in 1977 there was a gap in decisional law as to the liberty interests and constitutional rights of unsentenced prisoners during the period of their confinement in administrative segregation. Those issues were not settled until several years after the challenged conduct here occurred. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Mims v. Shapp, 744 F.2d 946, 954 (3d Cir.1984); Drayton v. Robinson, 719 F.2d 1214 (3d Cir.1983).
That the rights of these inmates were in flux in 1977 is apparent from an examination of a state regulation and a memorandum issued by the Commissioner of Corrections. Administrative Directive 801 governs the placement of prisoners in administrative as well as disciplinary custody. A fair reading of that regulation shows that it provided only for the transfer of inmates from the general population to segregation. No provisions spoke to the treatment of unsentenced detainees after they were placed in administrative custody.
In an effort to interpret 801 and to address the needs of unsentenced prisoners, the Commissioner issued a memorandum in 1977 which purported to establish guidelines for the handling of these special detainees. The memorandum instructed the superintendents and wardens that all un-sentenced inmates, except those who required special medical attention, were to be placed in “administrative custody pending a formal hearing to determine appropriate housing.” Since the plaintiffs hearing had already taken place, the memorandum did not affect his situation.
Defendants were subordinates of the Commissioner, and nothing in the record impugns their reliance on the memorandum and regulation for guidance in carrying out their duties. The district court specifically stated that it did not doubt the defendants’ sincerity in conducting the periodic reviews and that defendants “did not act with evil motive or intent. There was no intentional misconduct or reckless indifference here.”
In his pretrial memorandum denying immunity, the district judge stated that he did not see “anything in the language of any of those cases [the Gray trilogy] to indicate that the court of appeals intended they be read so narrowly as to eliminate due process” for unsentenced inmates. He continued, “We believe that the cases cited fairly established that some process was due plaintiff and placed defendants on notice of that fact.”
It is critical to the outcome here that the references were only to the initial transfer into administrative segregation. At no point in that memorandum did the district court discuss or articulate due process rights of a prisoner after administrative custody began, let alone determine that they were clearly established.
Even in the context of initial transfer the language used by the district court indicates error. Harlow has made crystal clear that the correct standard is “clearly established” — not “fairly established” as stated by the district court. There is a substantial difference in the emphasis between “fairly” and “clearly.” The former allows some “play in the joints,” but the latter is much more demanding.
In summary, the district court denied immunity based on what was considered established law applicable to initial transfer. After trial, the court determined that the initial transfer was proper but imposed liability on a different basis. That violation, however, was not analyzed to determine if it was in contravention of clearly established law. I am persuaded that test has not been met and that the defendants are entitled to qualified immunity. I would therefore reverse and enter judgment for defendants.