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July 6, 1981

Julius T. CUYLER, individually and in his official capacity as Superintendent of the State Correctional Institution at Graterford. Thomas WRIGHT v. William B. ROBINSON, Commissioner of the Bureau of Corrections of the Commonwealth of Pennsylvania, Julius T. Cuyler, Superintendent of the State Correctional Institute at Graterford, Pa., Daniel T. Sims, Deputy Superintendent of Treatment of the State Correctional Institute at Graterford, Pa., Lawrence Reid, Director of Treatment of the State Correctional Institute at Graterford, Pa

The opinion of the court was delivered by: LUONGO

Plaintiff in these consolidated civil rights actions, a state prisoner, alleges that defendants, various officials of the Pennsylvania Bureau of Corrections, violated his constitutional rights by denying his application to participate in a pre-release program. Wright seeks declaratory and injunctive relief prohibiting defendants from further violations of his rights, and compensatory and punitive damages. Defendants now move to dismiss certain of Wright's claims for failure to state a claim upon which relief can be granted. *fn1"

The allegations in Wright's complaint, which I must accept as true for purposes of resolving defendants' motion, Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972), are as follows. Wright is serving a state sentence of 131/2 to 27 years. In June, 1977, Wright applied to prison authorities for a home furlough, pursuant to the Bureau of Corrections pre-release program for sentenced offenders. 37 Pa.Code § 95.11, et seq. Wright's application was denied on the ground that he had too much time remaining on his minimum sentence. At the time, Wright had served six years and nine months of his minimum sentence. Wright thereafter wrote to defendant Robinson, Commissioner of the Bureau of Corrections, who acknowledged that Wright had, as of July 26, 1977, met two of the minimum criteria for participation in pre-release programs; Wright had served at least nine months in a state institution and he had served more than one-half of his minimum sentence (Complaint, CA78-1520, Exhibit 1). Robinson advised Wright to remain patient while prison authorities processed his request.

 In August 1977, Wright re-applied for the pre-release program, and once more was rejected. At that time, Wright was informed that defendant Reid, Director of Treatment at Graterford, would not approve a furlough request for Wright until only four years remained on Wright's minimum sentence. *fn2" In February 1978, Wright conferred with defendant Sims, Deputy Superintendent at Graterford, and was told that he would be a security risk if he were granted a home furlough because of the amount of time remaining on his minimum sentence, then in excess of five years. Shortly thereafter, Wright commenced these actions.

 Wright further contends that he is considered a model inmate at Graterford, has held various positions of trust at the institution, and since June 1973, has worked outside the prison itself at the institutional farm, where security measures are by nature much less stringent than inside the prison.

 I. Due Process Claim

 First, Wright contends that defendants violated his due process rights by arbitrarily denying him participation in the pre-release program. Defendants move to dismiss this claim on the ground that Wright does not have a liberty interest in participating in the pre-release program, with the result that the protections afforded by the due process clause of the Fourteenth Amendment do not apply.

 In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Court held that as a general rule parole decisions by penal authorities do not implicate a constitutionally protected liberty interest, and that in the absence of a state statute which creates a liberty interest by conferring a "protectible expectation of parole," the safeguards imposed by the due process clause do not apply. *fn4" 442 U.S. at 11, 99 S. Ct. at 2106. See also Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 2464, 69 L. Ed. 2d 158 (1981) (Supreme Court).

 In Greenholtz, the Court reviewed a Nebraska statute which established a general policy favoring parole of eligible prisoners, except under certain limited circumstances prescribed by the statute. The Court held that the statute provided an "expectancy of release" which was entitled to at least some measure of constitutional protection, 442 U.S. at 12, 99 S. Ct. at 2106, but noted that due process " "is flexible and calls for procedural protections as the particular situation demands.' " Id. It held that an inmate applying for parole under the Nebraska statute was not entitled to a formal hearing, and was not entitled to an explanation of the "evidence" upon which the board decided to deny parole. Id. 442 U.S. at 14-15, 99 S. Ct. at 2107-08.

 Here, the Pennsylvania statute creating the pre-release program, 61 Pa.Stat.Ann. § 1051 et seq., does not on its face give rise to any expectation of pre-release. Section 1051 provides that the Bureau of Corrections shall establish centers from which "effective" pre-release programs can be run. Section 1052 provides that the Commissioner of Corrections "may" transfer to pre-release programs any prisoner not sentenced to death or life imprisonment, and sets forth certain conditions for participation in the program. Section 1053 requires that the Bureau shall promulgate regulations for administering the program, and that inmate participants must obey the regulations. While conceding that the statute itself does not contain language which may be construed as creating a liberty interest, Wright contends that the program regulations promulgated under the statute, when interpreted in light of the purposes of the pre-release program, do give rise to a liberty interest.

 Wright relies upon Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980), cert. denied sub nom., Anderson v. Winsett, 449 U.S. 1093, 101 S. Ct. 891, 66 L. Ed. 2d 822 (1981). *fn5" In Winsett, a Delaware state prisoner was denied participation in work release programs because public outrage over his crime, the murder of a Delaware state trooper, sparked vigorous public protests when Winsett applied for work release. The district court held that although Winsett met all of the criteria for the work release program, the final decision to allow participation rested within the discretion of prison officials, with the result that Winsett did not have a liberty interest in the work release program. 443 F. Supp. 1369, 1373 (D.Del.1978). The Court of Appeals reversed, holding that the discretion of prison officials was not unbridled, but rather must be exercised consistent with the underlying purposes of the work release program. 617 F.2d at 1006-1007. The court noted that in processing applications for the work release programs, prison officials were required to adhere to an administrative framework of committee review which specified criteria to be applied in selecting inmate participants. More importantly, the court noted that under the Delaware statute governing the operation of the Department of Corrections, the work release program was required to further the policy established by the legislature that

Persons committed to the institutional care of the Department shall be dealt with humanely, with effort directed to their rehabilitation, to effect their return to the community as safely and promptly as practicable.
617 F.2d at 1006.

 The court found that Delaware prisoners had a liberty interest in having their applications for work release evaluated in light of the purposes of the program, and ruled that prison officials denied Winsett due process in denying his ...

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