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March 24, 1981

Julius T. CUYLER et al.

The opinion of the court was delivered by: GREEN



 The relevant facts are as follows. Plaintiff was an inmate at Graterford from 1975 until March 7, 1979 when he was released on parole. This action was filed on January 27, 1977. In December, 1976, plaintiff was a participant in the Graterford Home Furlough Program and received a special Christmas furlough. The rules and regulations of the program require inmates to return on time or face possible sanctions in the form of suspension or revocation of pre-release status. Plaintiff's furlough authorization stated he was furloughed from 10:00 a.m. December 23, 1976 to 10:00 a.m. December 27, 1976.

 Plaintiff left Graterford on December 23 and returned on December 27 at 2:20 p.m. Because plaintiff was four hours and twenty minutes late, defendant Gillis filed a misconduct report charging plaintiff with furlough lateness. A copy of this report was never given to plaintiff.

 On December 29, 1976, defendant Taylor went to plaintiff's cell to discuss the incident. At the time, defendant Taylor knew he would be a member of the panel which would conduct a hearing on plaintiff's alleged misconduct. He asked plaintiff to explain his lateness which Mr. Flores did.

 Plaintiff recounted how he planned to return to Graterford with Romon Conales, an inmate in the work release program. When plaintiff arrived at Mr. Conales' house on December 27, he was informed that Mr. Conales' car was inoperable. Plaintiff then found a Mrs. Haggerty to drive him back to the prison. Allegedly, when Mrs. Haggerty arrived at Mr. Conales' house, Mr. Conales called Graterford and told defendant Reid that he and plaintiff would be late in returning to the prison; Reid allegedly assured the inmates that their late return was acceptable. Mrs. Haggerty became lost en route to Graterford, and plaintiff eventually arrived at the prison four hours and twenty minutes late.

 After the interview, defendant Taylor decided to suspend plaintiff's pre-release status for nine months as punishment for the furlough lateness. He subsequently typed a report containing plaintiff's version of the incident, the panel's observations, the decision and the sanction. It is undisputed that the report was typed prior to the hearing.

 Later on December 29, a hearing was held by defendants Taylor and Hoagey. Plaintiff was asked why he was late and he repeated the explanation given to defendant Taylor in his cell. Plaintiff did not have an opportunity to call any witnesses on his behalf, such as defendant Reid, Mr. Romon Conales or Mrs. Haggerty. Nor did plaintiff receive advance written notice of the hearing. At the hearing, no member of the panel recorded plaintiff's version of the incident. Plaintiff was told by defendant Taylor that defendants Taylor, Reid and Gillis had investigated the matter and reached a decision. Plaintiff asked if he were going to get a hearing and was advised that the decision had been reached.

 The report previously typed by defendant Taylor was signed by defendants Taylor and Hoagey and plaintiff was then asked to sign it. Plaintiff initially refused; however, upon further request, plaintiff signed the form fearing that he would receive another misconduct if he continued to refuse.

 After the panel's suspension of his pre-release status, plaintiff attempted to appeal the decision to Deputy Superintendent 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 ...

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