Sims. However, no appeal was granted since plaintiff was charged with a minor misconduct which, under the prison rules, is not subject to appeal.
On May 19, 1977, defendant Sims interviewed defendant Taylor regarding his actions at the December 29 hearing. Subsequently, defendant Sims recommended a reprimand of defendant Taylor and reinstatement of plaintiff to furlough status. Apparently, these recommendations eventually were accepted by defendant Cuyler, as plaintiff was reinstated to the program with the ultimate effect that his suspension lasted for six months rather than the nine months originally ordered.
Plaintiff now argues that he is entitled to summary judgment on both the § 1983 claim and on an implied cause of action under Administrative Directive 801. Defendants argue that summary judgment should be granted in their favor because plaintiff has no liberty interest which was deprived and because he admitted the violation and thus was entitled to no hearing. Defendants further argue that they acted in good faith and therefore are entitled to immunity even if a constitutional violation occurred. In an attempt to dispose of the action on a nonconstitutional ground, I will address plaintiff's state law claim first.
II. ADMINISTRATIVE DIRECTIVE 801
While it is preferable to dispose of an action on a nonconstitutional ground, if possible, cf. Hagans v. Lavine, 415 U.S. 528, 549, 94 S. Ct. 1372, 1383-85, 39 L. Ed. 2d 577 (1974); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S. Ct. 451, 53 L. Ed. 753 (1909), I believe that plaintiff's state law claim is not properly before this Court. Though the amended complaint alluded to violations of Administrative Directive 801, it neither alleged nor implied that those violations might afford plaintiff a right to relief under Pennsylvania state law. The latter theory first surfaced in plaintiff's motion for summary judgment. At this late date, allowing the plaintiff to proceed on a new legal theory would prejudice the defendants as they have been operating on the premise that the only issue raised by this action is a violation of due process. Because the alleged violation of Administrative Directive 801 has not been properly pled, I will not decide this issue. Accordingly, I turn to the heart of this case, plaintiff's due process claim.
III. PLAINTIFF'S LIBERTY INTEREST
The first step in a due process inquiry is to determine the nature of the private interest at stake, for only if government action deprives an individual of a cognizable "liberty" or "property" interest will the constitutional protection apply. See, e.g., Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Claiming that he did possess a cognizable liberty interest, plaintiff analogizes the suspension of his pre-release status to loss of good time credits, Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); revocation of probation, Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); and revocation of parole, Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Defendants contend, on the other hand, that the liberty interest asserted by plaintiff was illusory, because even with pre-release status, obtaining a furlough was conditioned on a favorable exercise of the prison authorities' discretion. Defendants liken plaintiff's claim to an application for discretionary parole release, Greenholtz, supra, or a request not to be transferred to another penal institution, Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), situations in which the Supreme Court has found no liberty interest.
In defendants' view, the presence of discretion vested in the prison authorities is fatal to plaintiff's claim. Under the applicable regulation, pre-release status is necessary, but not sufficient, to obtain a home furlough:
(a) Home furlough shall be an earned privilege granted selectively to inmates placed on pre-release status with the institution prior to release.... 37 Pa.Code § 93-76.