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December 21, 1982

WILLIAM FRENCH SMITH, Attorney General of the United States; NORMAN A. CARLSON, Director, U.S. Bureau of Prison; and GEORGE WILKINSON, Warden, U.S. Penitentiary, Lewisburg, Defendants

The opinion of the court was delivered by: HERMAN

 Plaintiff, William Becker, is an inmate incarcerated in the United States Penitentiary, Lewisburg, Pennsylvania. Plaintiff is currently serving an aggregated thirty-year sentence for the offenses of Interstate Transportation of Stolen Motor Vehicles; Conspiracy to Escape; Aiding and Assisting an Escape; Escape; Counterfeit Obligations and Securities; and Aiding and Abetting.

 In 1977, the Federal Prison System (FPS) classified Plaintiff as a Central Monitoring Case (CMC), pursuant to Bureau of Prison Policy Statement 5180.2. The classification was made to ensure that Plaintiff would be separated from other federal offenders who had provided information to the federal authorities which led to Plaintiff's indictment and conviction. An FPS official notified Plaintiff that he had been so classified, to which Plaintiff apparently did not object.

 Plaintiff therefore brought this action on June 18, 1982, alleging that no co-defendants are incarcerated in the federal system at this time and that Plaintiff is improperly classified. Plaintiff contends that this improper classification and Defendants' refusal to grant him a hearing is a violation of his due process right. Plaintiff claims that the CMC classification affects his participation in furloughs, transfers, and community activities.

 The action subsequently was referred to a Magistrate, the Honorable Raymond J. Durkin, who permitted Plaintiff to proceed in forma pauperis and ordered process issued on February 18, 1982. Defendants filed no response until May 13, 1982, at which time Defendant moved for a thirty-day extension of time to respond. Although Plaintiff was aware that Defendants could be held in default for their delay, Plaintiff raised no objections and decided not to pursue that avenue of action. (Letter dated May 20, 1982, Docket entry 7). Consequently, the Magistrate granted Defendants' motion for an extension "until on or about June 13, 1982." (Docket entry 6). Upon Defendants' failure to file a response by June 13, 1982, Plaintiff, on June 15, 1982, requested the clerk's office to enter a default in favor of Plaintiff and against Defendant. Pursuant to Rule 55(a), the clerk entered Defendants' default on June 16, 1982.

 On June 18, 1982, Defendants' filed a motion to dismiss, or in the alternative, a motion for summary judgment. On June 24, 1982, Defendants filed a motion to set aside the default entered on June 16, 1982. Neither Defendants nor Plaintiff filed a brief concerning the motion to set aside the default. Nor did Plaintiff file an opposing brief to Defendants' alternative motions to dismiss or to grant summary judgment.

 On August 31, 1982, the Magistrate granted Defendants' motion to set aside the notice of entry of default. The Magistrate further granted Plaintiff an extension of fifteen days to file an opposing brief to Defendants' motions to dismiss or grant summary judgment. On September 17, 1982, Plaintiff filed his opposing brief, in addition to objecting to the Magistrate's lifting of the default entry.

 Thereafter, on October 18, 1982, the Magistrate issued a Report and Recommendation that Defendants' motion for summary judgment be granted. The Magistrate found that Plaintiff was not entitled to due process protection in avoiding CMC classification and, in any event, Plaintiff was not entitled to relief in light of the facts of this action. Plaintiff filed exceptions to the Magistrate's Report on October 25, 1982, again claiming the Magistrate erred in lifting the default. Moreover, we interpret Plaintiff's exceptions to allege that facts do exist which entitle Plaintiff to relief. Neither party filed briefs concerning these exceptions.

 As we view the record, three issues must be addressed: (1) Did the Magistrate err in lifting the prior entry of default in favor of Plaintiff? (2) Does a federal prisoner's interest in avoiding classification as a CMC entitle him to due process protection? (3) Does Plaintiff allege facts which would entitle him to relief in this action?

 First, we find no error in the Magistrate's lifting of the notice of default. As the Magistrate concluded, the default entered by the clerk pursuant to Rule 55(a) of the Federal Rules of Civil Procedure was an entry of default, and not judgment of default as provided by Rule 55(b).

 Next, we address the question whether a federal prisoner's interest in avoiding classification as a CMC entitles the prisoner to due process protection. The Third Circuit has not yet spoken on this question, and our review of the case law on this point established that the area remains very unsettled. See, e.g., PUGLIESE v. NELSON, 617 F.2d 916 (2d Cir. 1980) (classification as a CMC prisoner does not entitle a prisoner to due process protections); COPPOLA v. UNITED STATES ATTORNEY GENERAL, 455 F. Supp. 15 (D. Conn. 1977) (injury flowing from CMC classification requires due process protection of meaningful notice and an opportunity for a hearing); MILANO v. JETT, 424 F. Supp. 1208, 1213 (C.D. Cal. 1976) (prisoner's designation as CMC because of record of "sophisticated criminal activity" found consistent with prisoner's rights to due process). Indeed, the Middle District of Pennsylvania is divided. Compare MARTINEZ v. CARLSON, et al., No. 80-0498 (M.D. Pa., filed March 25, 1981) (adopting reasoning of Second Circuit and finding no right of due process protection from CMC classification) with BRYANT v. CARLSON, 489 F. Supp. 1075 (M.D. Pa. 1979) (holding that Due Process Clause protects prisoner receiving CMC status).

 The objective of the Central Inmate Monitoring System (CIM) and its classification of certain prisoners as CMC is not to punish or deprive prisoners of their liberty interest. Rather, the stated goal is to coordinate management of special cases that have unusual or extreme circumstances to be considered. (See Bureau Policy 5180.2, Exhibit C of Defendants' brief in support of motion to dismiss). Prisoners are monitored, not to preclude them from transfers, temporary releases, or participation in community ...

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