431 U.S. 816, 848-849, 97 S. Ct. 2094, 2112, 53 L. Ed. 2d 14 (1977). Unfortunately, the record in the instant case is too sparse for this Court to apply the Mathews formula. Accordingly, the defendants' motions for dismissal and summary judgment shall be denied. Both parties, moreover, shall be ordered to provide additional information necessary for the Court to dispose of this case properly.
V. QUESTIONS REQUIRING ANSWERS
The plaintiff must answer several questions which concern his interest at stake in the case. In his appeal of the C.M.C. rating to the Bureau's General Counsel, Bryant listed two adverse effects that the designation allegedly would have on his situation. First, he claimed that his ability to obtain furloughs and emergency trips would be impaired. The plaintiff must explain why he expects such a result. Second, the prisoner objected that the rating would lessen his chances to take part in "community activities." It should be noted, however, that 7900.53A at 6 clearly states that an "A," such as the plaintiff, does not need Central Office permission to enter programs within the "institution's local community." Thus, only Bryant's enrollment in community activities beyond the neighborhood of the prison in which he happens to be incarcerated could be infringed. The prisoner is ordered to state what these programs might be. Furthermore, Bryant is invited to make any further arguments as to how his personal interest may be influenced in other ways.
The defendants are ordered to address four additional matters important to resolution of this litigation. Initially, they must discuss the possible consequences of the inmate's classification. Some courts have stated that "special offender" or C.M.C. status may detrimentally influence the opportunity to take part in a wide variety of institutional activities, such as furloughs, transfers, halfway house placement, community programs, or even parole. See Cardaropoli v. Norton, 523 F.2d at 993-95; Pugliese v. Nelson, 472 F. Supp. at 996; Raia v. Arnold, 405 F. Supp. at 768. The government must inform the Court if the validity of these findings is to be conceded.
The Court, moreover, is concerned that the only reason the plaintiff was ever given for his C.M.C. rating was a statement informing him that an anonymous person had reported that an unnamed inmate posed a threat to Bryant's safety. While it is certainly true that prison officials have an interest in maintaining secrecy with regard to many security matters, this factor must be balanced with the prisoner's due process rights. It is difficult to determine how an inmate could rebut so ambiguous a charge no matter what type of hearing he received. Therefore, the defendants must inform the Court how they justify this type of explanation. In so doing, the government should address the holdings in Pugliese v. Nelson, 472 F. Supp. at 996-98 and Coppola v. United States Attorney General, 455 F. Supp. at 20
as well as the existence or non-existence of less restrictive methods (e.g., maintaining secrecy of the informant's identity but not that of the allegedly dangerous inmate). Specificity shall be required as to this answer.
Next, the defendants must describe the government's interest in maintaining the procedures presently contained in 7900.53A and explain how these safeguards are adequate to protect a prisoner's interest in avoiding an improper C.M.C. classification. This information is essential for the Court to apply the second and third steps of the Mathews test. It should be noted that Cardaropoli, Pugliese, and other cases ordered that prisoners receive procedural safeguards in excess of those granted under 7900.53A. The defendants must state the reasons behind the government's desire to continue with the present standards.
Finally, the Court notes that there is a sharp discrepancy between the affidavit offered by Bryant and that of the prison authorities concerning the actual facts involved in the plaintiff's classification. According to R. B. Sinsheimer, Case Management Coordinator at Lewisburg, the plaintiff essentially waived his right to present evidence contradicting the propriety of his "A" rating. See Document 8 of the Record. Bryant, on the other hand, insists that when he confronted Sinsheimer on the matter, the Coordinator stated that the issue was settled and the prisoner had no option other than to appeal to the Bureau. See Document 13 of the Record. Obviously, the plaintiff is attempting to convince the Court that Sinsheimer's conduct denied the inmate a fair opportunity to present his arguments on the subject. The defendants must inform the Court if they feel that Bryant can be declared to have received due process even if the charges in his affidavit are taken as true. As has been stated, the mere fact that 7900.53A may be facially valid will not dispose of this case. The Court still must decide if the actual application of the policy preserved the prisoner's due process rights. This fourth answer will be needed for such an inquiry.
And now, this 27th day of November 1979, the defendants' motion for dismissal or, in the alternative, summary judgment is denied. And further, it is ordered that the parties expand the record as explained in the accompanying Memorandum. Both the plaintiff and defendants shall have twenty (20) days in which to comply with this order. An additional five (5) days shall be permitted for the filing of replies.
MEMORANDUM AND ORDER
On Renewed Motion For Summary Judgment
Bryant, a prisoner at the Lewisburg federal penitentiary, has filed this mandamus action seeking expungement of his Central Monitoring Case ("C.M.C.") classification. According to the Bureau of Prisons ("Bureau"), the inmate's safety would be threatened by incarceration "with certain other offenders or in certain geographical areas."
The plaintiff maintains that this label was affixed in an unconstitutional manner. On November 27, 1979, this court decided that such a categorization implicates a tangible liberty interest and cannot be effected until a prisoner has been afforded due process. An expansion of the Record was ordered to facilitate a ruling on the type of hearing the inmate deserved.
The Government has implicitly requested the court to reverse its holding that C.M.C. status generally "triggers" the Due Process clause.
This invitation shall be declined. A review of the briefs and affidavits recently submitted by the parties, however, clearly indicates that on the peculiar facts of this situation, Bryant could not have suffered material prejudice from the "A" rating even if it is assumed that the application was erroneous. The Due Process Clause, therefore, is not relevant to this particular case. For that reason, the defendants' renewed motion for summary judgment shall be granted.
I. INTERESTS AFFECTED BY THE CMC DESIGNATION
The plaintiff theorizes that he has five separate interests at stake in this litigation. He insists, for example, that the C.M.C. classification has subjected him to invidious discrimination. In support of this contention, the inmate notes that he was denied participation in the Lewisburg Arts and Crafts program as well as an opportunity to work overtime on Saturdays. Yet the bald assertion that these decisions were based on Bryant's C.M.C. status has no support in the Record.
Category "A", moreover, merely requires that a prisoner be separated from one or more other convicts, and it has no relevance to the named employment and recreational privileges. Thus, the claim of intra-institutional discrimination will be rejected.
Second, the plaintiff argues that his C.M.C. designation may have adverse consequences for parole opportunities. Such might be the case in Category "B" situations where convicts are said to require close supervision due to the nature of their "offense, criminal record, institutional behavior or notoriety." See Paragraph 3(B) of Exhibit 4 attached to Document 18 of the Record. The pejorative connotations of such a rating could conceivably impair the prospects for an early release. Cf. Cardaropoli v. Norton, 523 F.2d 990, 994 (2d Cir. 1975). See 28 C.F.R. § 2.19 (1979). This conclusion, however, seems totally unjustified in the context of separation status which does not concern the inmate's character or criminal propensity.
A third interest asserted by Bryant centers on his ability to obtain furlough privileges. In theory, Category "A" places some constraints on these opportunities, because the Bureau presumably will not authorize a temporary release which might place the inmate in the same locale as the person or persons from whom he or she is to be separated. Under this rationale, a prisoner generally eligible for furlough consideration might have a valid argument if he or she could show that the classification is erroneous. A review of the facts in this case, nevertheless, demonstrates that the plaintiff has nothing at stake. Bryant's record includes four major convictions.
He will be incarcerated for at least another thirty-seven years. The federal authorities have assigned him to Lewisburg, one of the most secure penal facilities in the nation. Bureau regulations set forth definite qualifications which a prisoner must have to be considered for a temporary release.
A review of these requirements makes it clear that this particular inmate's chances for furlough are essentially non-existent. Accordingly, the argument that the Category "A" label has impaired such opportunities is frivolous.
Fourth, the prisoner states that separation status precludes his transfer to a Community Treatment Center ("C.T.C."). In reality, Bryant's hope for residence in such a facility will be illusory until well into the next century. C.T.C. programs are designed to help inmates acclimate themselves to life outside of prison. Assignment to these facilities is confined to the last days of a prisoner's institutionalization. The average length of time spent in a C.T.C. is 120 days; an assignment for over six months is strictly limited to individuals who can demonstrate both "sufficient stability" and a "very special need, . . . such as unusual opportunities for schooling, training or employment." It is unclear if Bryant will ever be paroled. At this point in time, nonetheless, his interest in C.T.C. participation is too negligible to provide a basis for due process protection.
A final contention involves the possibility of transfer to another institution. Bryant maintains that classification as a separation case adversely affects his chances to be sent to a penitentiary with a more favorable environment. There is some suggestion that he hopes to be assigned to a minimum-security prison with extensive work and study release programs.
This argument would have some validity if it were offered by a prisoner with prospects of transfer to a different type of institution. In such a situation, an inmate could contend that improper Category "A" status might deny access to a desirable facility merely because another person resides there when, in fact, the latter's proximity creates no security risk. The Government's uncontradicted affidavits, however, demonstrate that Bryant's criminal and penitentiary records do not qualify him for a minimum-security institution.
After a full opportunity to explain his perceived interests at stake, the plaintiff has given the court no reason to conclude that any transfer he might receive would be to anything other than another maximum- security facility. The prisoner has not indicated any way in which his interests are injured by placement in Lewisburg as opposed to one of the other federal prisons in its class.
II. LEGAL ANALYSIS
This court has noted that the essence of due process is "protection of the individual against arbitrary and capricious governmental action." Conklin v. Fenton, Civil No. 78-508, slip op. at 7 (M.D.Pa., filed September 28, 1979). Many cases have recognized that under the proper circumstances state and federal regulations may create liberty interests which entitle designated persons to the safeguards of due process. Meachum v. Fano, 427 U.S. at 229, 96 S. Ct. at 2540; Drayton v. McCall, 584 F.2d 1208, 1215 (2d Cir. 1978); Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir.), cert. denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979); Walker v. Hughes, 558 F.2d 1247, 1252-56 (6th Cir. 1977); Pugliese v. Nelson, 472 F. Supp. 992, 996 (D.Conn.1979). The crux of such holdings is the conclusion that officials who ignore binding rules of law act in an arbitrary and capricious manner. These precedents, nevertheless, have not held that the Due Process Clause automatically incorporates all prison regulations into the United States Constitution.
Conklin v. Fenton, Civil No. 78-508, involved a suit brought by a Lewisburg inmate challenging his placement in administrative segregation. The plaintiff's special confinement clearly transgressed the applicable federal regulations. This court, nonetheless, concluded that consideration must be given to the "severity of the deprivation" alleged as well as to the existence of any "justifiable expectation" that such custody would "only be imposed for closely circumscribed reasons." Upon review of all the facts, especially the brevity of the inmate's actual stay in segregation, it was concluded "that the "degree of liberty at stake' was insufficient to require due process protection." Id. at 11-13.
The soundness of Conklin is evident in light of rulings issued by the Supreme Court. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972) explained that due process applies only if the government action under attack is likely to cause the complainant to suffer a "grievous loss." Meachum v. Fano, 427 U.S. at 224-25, 96 S. Ct. at 2538 carried this analysis a step further by requiring that the challenging litigant also demonstrate an independent "liberty interest" based on state or federal law. Conklin merely affirms the two-tiered nature of the Morrissey-Meachum rationale by demanding that the plaintiff show both a liberty interest and a grievous loss.
The Due Process Clause does not grant federal courts jurisdiction to render advisory opinions on the validity of official actions. Intervention is inappropriate unless a constitutional violation has occurred. In the instant case, Bryant has not suffered a "grievous" deprivation. Indeed, he has not suffered any tangible loss at all. The plaintiff's constitutional rights, therefore, were not violated even if the Category "A" rating was incorrect.
Accordingly, the Government's motion for summary judgment will be granted.