Rule 55(c) permits the court to set aside an entry of default for good cause. In this action, because Plaintiff did not object to Defendants' initial delay, Defendants had until "about June 13, 1982" to file a response to Plaintiff's claim. Defendants filed motions to dismiss or to grant summary judgment on June 18, 1982. While Defendant was five days late in responding, the period of delay was not great. Moreover, Defendants did not receive the documents they needed to support their response, which were the basis for the original thirty-day extension, until June 17, 1982. Defendants promptly filed a response the following day upon receipt of these documents. Plaintiff has neither alleged or actually suffered any prejudice because of the delay; therefore, the Magistrate acted properly in lifting the notice of default.
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 activities, but "to provide protection for all concerned and to contribute to the safe and orderly running of Federal Institutions." Id.
Placement of prisoners in various facilities or programs is monitored for a variety of special reasons, including for the security of witnesses, to supervise prisoners convicted of sophisticated criminal activity, to monitor inmates involved in high publicity cases, and to separate inmates where one inmate has provided authorities with information concerning illegal activities of another inmate. The CIM classification system provides guidelines for CMC determination, for constant review of CMC status, and for an Administrative Remedy Procedure for reviews and appeals from CMC classifications. The system also requires written notice of CMC classification to be given to an inmate, in addition to the reasons for that classification. Id.
While the BRYANT opinion provides a logical analysis and discussion on why CMC classification affects a liberty interest protectible by due process considerations, we must concur with the MARTINEZ court that the Second Circuit's reasoning in PUGLIESE v. NELSON, 617 F.2d 916 (2d Cir. 1980), is more persuasive. In PUGLIESE, the court began its discussion of this due process question with the recognition that the Fifth Amendment provides that no person may be deprived by the government of "liberty" without due process of law. Id. at 921. To qualify as a constitutionally protected liberty interest, the prisoner's interest must be assured by statute, judicial decree, or regulation. WOLFF v. McDONNELL, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Hence, while a prisoner retains some portion of his constitutionally protected liberty, not all deprivations imposed by prison authorities activate the procedural protections of the Due Process Clause.
The PUGLIESE court expounded upon a number of cases that had discussed whether various interests were constitutionally protected liberty interests. See PUGLIESE, 617 F.2d at 922-23. See also and compare GAGNON v. SCARPELLI, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973) (prisoner's "good times" credits, which affect parole eligibility, create a liberty interest protected by due process); MORRISSEY v. BREWER, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) (promise of parole revocation only upon a demonstration of good cause is a constitutionally valuable liberty interest), with GREENHOLTZ v. INMATES OF THE NEBRASKA PENAL AND CORRECTIONAL COMPLEX, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (prisoner's mere hope of possibility of freedom on parole is insufficient to be a protected liberty interest); MOODY v. DAGGETT, 429 U.S. 78, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976) (filed detainer for parole violation held not to entitle prisoner to immediate hearing under Due Process Clause); MEACHUM v. FANO, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976) (prisoner's interest in not being transferred to a prison with less favorable living conditions is not a constitutionally protected liberty interest). The court concluded that "a prisoner's mere expectation of benefits associated with non-CMC status does not amount to a statutory or constitutional entitlement sufficient to trigger due process protections." PUGLIESE, 617 F.2d at 925. The court held:
It may be true . . . that a CMC designation in practice delays or precludes a prisoner from being favorably considered for furloughs, transfers, work releases, participation in community activities and even early parole, but the fact remains that these freedoms are mere possibilities, like an unclassified prisoner's prospect of release on parole, with no prisoner (CMC or not) able to prove any state of facts which would entitle him to these freedoms. Non-CMC status, in other words, merely gives a prisoner a greater chance of enjoying these freedoms, it does not guarantee them. Nor does CMC status totally foreclose the enjoyment of the benefits since the Central Monitoring Case Coordinator may grant the benefits to a CMC prisoner.
PUGLIESE, 617 F.2d 916 at 923-24 (footnotes deleted).
Additionally, the United States Supreme Court has stated, in dicta, that while prisoner classification and eligibility for rehabilitative programs in the federal system may cause a "grievous loss" upon an inmate, no due process protections are created. MOODY v. DAGGETT, 429 U.S. 78, 88 n.9, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976). "Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081 [ 18 USCS § 4081], and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process." Id. As aptly discussed in PUGLIESE, Bureau Policy Statement 5180.2 does not limit the Attorney General's discretion to grant or deny benefits of furloughs, transfers, work releases, and participation in community programs. "The most that can be said is that the Policy Statement established procedures to be followed by the various divisions of the Bureau of Prisons in exercising its discretion with respect to prisoner designation, monitoring and control." PUGLIESE, 617 F.2d at 924. Additionally, monitoring and controlling prisoners is an area better left to the expertise of prison administration authorities. The federal courts should not be involved in prisoner classification, and hence, the day-to-day operations of the prison system. Id.
Having found no protectible liberty interest to exist that entitles Plaintiff to due process protections when being classified as a CMC, we concur with the Magistrate that Plaintiff is suffering no grievous loss which entitles him to relief. The documents submitted by Defendants on June 23, 1982, for the court's in camera inspection reveal that a separatee of Plaintiff's is confined within the Bureau of Prisons. Plaintiff contends that Larry L. Barnes, a paralegal specialist employed by the United States Penitentiary in Lewisburg, Pennsylvania who submitted an affidavit that a separatee of Plaintiff's was currently confined in the prison system, is lying. Plaintiff, however, does not have before him the documents which establish that a separatee does indeed exist and, thus, that Barnes is not lying. We have examined the documents in this case and are in accord with the Magistrate's reasoning that Plaintiff fails to state a cause of action which entitles him to relief.
An appropriate order will be entered.
AND NOW, this 21st day of December, 1982, IT IS HEREBY ORDERED that:
1. Upon our independent consideration of the documents in this action and pursuant to the opinion released this date in the above-captioned case, the Report and Recommendation of Magistrate Durkin are adopted.
2. Defendants' motion for summary judgment is granted.
3. The Clerk of the Court is directed to close the file on this matter.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp.]
This action came before the Court, Honorable R. Dixon Herman, United States District Judge, presiding, and the issues having been duty (heard) and a decision having been duly rendered,
It is Ordered and Adjudged that judgment be and hereby is entered in favor of the defendants and against the plaintiff.
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