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November 27, 1979

Billie Austin BRYANT, Plaintiff,
Norman A. CARLSON et al., Defendants.

The opinion of the court was delivered by: NEALON



 Presently before the Court is a civil action seeking mandamus relief under 28 U.S.C. ┬ž 1361. The plaintiff, an inmate at the Lewisburg federal penitentiary, *fn1" is challenging his special administrative rating. On April 24, 1978, Bryant received a Bureau of Prisons ("Bureau") memorandum notifying him that he tentatively had been designated a "Central Monitoring Case" ("C.M.C."), because there was evidence that he might be endangered if incarcerated "with certain other offenders or in certain geographical areas." The plaintiff was informed that in the event this classification became finalized, approval of the Bureau's Central Office in Washington would be required before he could be transferred to another facility or participate in "community activities." The C.M.C. rating was adopted formally on the following August 7. The notice stated, "For your mutual protection you are to be separated from another inmate in federal custody." Bryant appealed this action to the Bureau's General Counsel. On September 28, the classification was affirmed with the following statement offered as the sole rationale: "Confidential information indicates you must be separated from this other inmate for your mutual protection." *fn2"

 Bryant asserts that the events leading to his C.M.C. rating constituted a denial of due process for several reasons. First, he contends that he has never received a sufficient explanation of the reasons for his designation. Second, the prisoner argues that he did not have a hearing in which he could contest the decision. Finally, the plaintiff states that the notice the Bureau gave him was inadequate. The main remedy that Bryant seeks is a court order expunging his C.M.C. classification.

 The defendants, conversely, have moved for dismissal of the case or, in the alternative, for summary judgment. The government presents a concise argument. The challenged rating was issued under the Bureau's Policy Statement Number 7900.53A. *fn3" According to the defendants, this regulation is fully constitutional *fn4" and its procedures were followed in the selection of the plaintiff's C.M.C. status. Therefore, the government concludes that "Bryant's instant civil action must fail." To assess this claim properly, it is first necessary to review the provisions of the challenged policy.


 The original policy, however, soon underwent rigorous judicial review. The Second Circuit, for example, declared that the regulations amounted to a denial of due process, because the prisoners named to the list of special offenders were subjected to a "grievous loss" without an adequate hearing. Cardaropoli v. Norton, 523 F.2d at 994-99; Catalano v. United States, 383 F. Supp. at 351-53. Furthermore, in Raia v. Arnold, 405 F. Supp. at 770, this Court also declared 7900.47 unconstitutional. *fn7" On April 7, 1976, the Bureau announced a new policy designed to accommodate judicial review by "providing some basic procedures to support a factual determination that an inmate falls into a category of offenders which must be carefully monitored." Bureau Operations Memorandum 7900.52 at 1. Bryant attacks the constitutionality of these regulations which are contained in 7900.53 and its successor, 7900.53A.

 In promulgating 7900.53, the Bureau explicitly stated that "specific procedures are delineated to assure that inmates are informed of a Central Monitoring Case designation and given an opportunity to provide additional information to be considered." Operations Memorandum Number 7900.52 at 1. Two basic reforms of the prior classification rules were made. First, the number of categories into which a C.M.C. inmate could fall was decreased. *fn8" Second, procedures were established which were supposed to give the prisoner a fair opportunity to contest his or her classification. Bryant was treated under 7900.53A which provides the following safeguards:

(a) The warden or his designee shall advise the inmate in writing as promptly as possible of his tentative designation and the basis for it. The notice of the basis may be limited in the interest of security or safety. For example, in protection cases under Category A, (e.g., Bryant), notice should not ordinarily include the names of those other inmates in need of protection. On the other hand, in sophisticated criminal involvement cases under Category B(3), adequate notice should include specific reference to the sophisticated criminal involvement, that is, the crime for which the inmate was convicted or explicit evidence of other sophisticated criminal activity.
(c) The warden or his designee shall forward to the Central Office complete information regarding the Central Monitoring Case designation, including a summary of the inmate's objections and a copy of all written material submitted by the inmate under (b) above. When an institution makes a tentative designation, a copy of the inmate's completed Form BP-5.1 (Sentence Data Summary) and a copy of the institution's written notification to him is forwarded to the Central Office. On the reverse of the BP-5.1 and attachments if necessary, the institution is to clearly and thoroughly report the reasons for the designation, utilizing the format in Attachment A. Care should be taken to provide the Central Office with all information that might be pertinent to determine if a Central Monitoring Case designation is valid and to make future decisions about the case. Justification for the designation must also be readily available in the inmate's institutional file.
(d) The Central Office makes a final decision based on this record and notifies the institution and the inmate of the final decision in writing. The inmate is also advised that he may appeal the final decision to the General Counsel's Office, Bureau of Prisons, through the Administrative Remedy Procedure.
(e) When, due to an error in the procedures or substance of the designation, an inmate is ordered to be removed from Central Monitoring designation, all references to the designation in the inmate's file shall be removed. This will require preparation of a new central file folder, transferring papers from the old file to the new, and removal of the top sheets, showing the CMC designation, from the top of the first section of the central file and from the top of the left-hand side of the commitment file.
In addition, all references to the designation in reports, copies of correspondence, or any other file material must be removed in such a way that any person reviewing the file material will not be able to ascertain that such a designation was ever made. This will ordinarily require the rewriting of reports which reference the designation or destroying materials, containing such a reference, which are no longer needed. (emphasis in original)

 Several preliminary issues must be determined before the constitutionality of Bryant's treatment can be assessed. Initially, the Court has to decide if the plaintiff's C.M.C. designation implicates a liberty interest which entitles him to protection under the Due Process Clause. If so, two other questions will require consideration. The Court first will have to determine if 7900.53A affords an inmate a fair hearing to dispute his rating. Furthermore, even if 7900.53A is declared constitutionally valid on its face, the ...

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