Appeal from an order of the District Court for the Southern District of New York, Whitman Knapp, Judge, granting a state prisoner's petition to require the New York State Board of Parole to disclose all non-confidential material in his institutional and parole files and provide a fair summary of all confidential material and grant a new parole hearing. Reversed, with instructions to dismiss the petition.
Friendly, Hays, and Mulligan, Circuit Judges. Hays, Circuit Judge, dissenting.
This appeal from an order of the District Court for the Southern District of New York raises a question of the extent to which the due process clause of the Fourteenth Amendment confers upon a prison inmate eligible for parole consideration the right to inspect his institutional files, where those may be consulted by the parole board in deciding on his parole. Related questions already have been faced, in varying form and with varying result, by two previous panels of this court. In the particular circumstances of this case, we find that disclosure of the contents of the files was not constitutionally required.
Plaintiff-appellee Michael Williams is a prisoner in the custody of the New York State Department of Correctional Services. He was indicted in 1964 for two counts of murder in the first degree and one count of robbery in the first degree, pleaded guilty to two counts of second degree murder, and was sentenced on May 27, 1964 to concurrent terms of twenty years to life. After resentencing in 1969 for purposes of permitting an appeal, his conviction was affirmed without opinion by the Appellate Division, 36 A.D.2d 795, 319 N.Y.S.2d 595 (App. Div. 2d Dept. 1971), with leave to appeal to the New York Court of Appeals denied. Although under earlier New York law Williams would not have been eligible for parole consideration until completion of his minimum term, New York Correction Law § 212 (McKinney 1968), he became eligible for parole consideration on September 1, 1975 by virtue of a statutory reduction in minimum sentences, L. 1975, c. 343, § 1, New York Correction Law § 212-a (McKinney 1976), and was accorded an appearance before the Parole Board on September 11, 1975.
In April 1975, apparently in the course of his unsuccessful civil rights suit in the Eastern District of New York against two police officers who had questioned him in connection with the murders, Williams v. Gamble, Nos. 69-C-1253, 70-C-155, appeal dismissed pursuant to Rule 0.18(7), No. 75-2075 (2 Cir. 1976), Williams learned that his prison files contained two letters whose contents he considered prejudicial. Those letters stemmed from an incident initiated by Williams himself: In April 1971 Williams had written a letter to Justice John E. Cone of the New York Supreme Court, who had sentenced Williams in 1964 and resentenced him in 1969, containing the text set out in the margin.*fn1 Copies of this letter also were sent by Williams to John Hughes, Chairman of the State Senate Judiciary Committee, and Thomas McCoy of the New York State Judicial Conference. On May 3, 1971, at the request of Justice Cone, Charles Fastov, who was Chief Probation Officer of the Second Judicial District, New York Supreme Court, wrote to Russell Oswald, the Commissioner of Correctional Services, and to Paul J. Regan, then Chairman of the New York State Board of Parole, enclosing a copy of Williams' letter and stating that "Williams has a history of mental disturbance and the attached letter points to the probable need for an updated psychiatric review of his condition." In addition, on August 5, 1974, Justice Cone wrote to Oliver Tweedy of the Executive Clemency Bureau, State Department of Correctional Services, enclosing copies of Williams' letter and Fastov's 1971 letter to Commissioner Oswald, and stating that,
I do not under any circumstances recommend commutation of sentence for Michael Williams, as he has a history of mental disturbance.
In my opinion he is dangerous. Herewith is a photocopy of a threatening letter addressed to me from Michael Williams. . . .
When he learned that the letters from Fastov and Justice Cone were in existence, Williams apparently wrote to the Parole Board Chairman and the Commissioner of Correctional Services stating that the information in the letters concerning a history of mental disturbance was false, and asking that the letters be removed from the prison and parole board files and that no reference be made to the information when he was considered for parole or for temporary release programs. When, allegedly, no response was received to these letters, Williams filed the instant suit pro se on August 6, 1975, under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(4), claiming that he had been denied due process in not being afforded copies of the letters and not being given the opportunity to answer the allegations. As relief, he asked (1) that the court order defendants to remove "the false information" (presumably, the two letters) from his institutional files and (2) that the Department of Correctional Services and the New York Parole Board "be enjoined from accepting any such recommendations and other informations from the judges, prosecutors, and other outside sources without first supplying the plaintiff with a copy thereof and affording him 14 days to answer the charges in the information and recommendations and respond in writing."
A month later plaintiff had his hearing before the Parole Board, at which board member Pierro questioned Williams concerning his attitude toward his past criminal offense and past drinking problem, his failure to participate in the Alcoholics Anonymous or group therapy programs in the prison, and his decision not to pursue a high school equivalency diploma or college courses even though he had no employment record before his arrest and expressed a desire to work as a para-legal upon his parole release.
The Board denied parole, continuing Williams in custody until September 1977 and gave the following written statement of reasons for the denial:
The violent and vicious nature of the crimes.
Institutional reports indicate that you may benefit from the treatment which is available to you at this institution and in which you have not participated and which we feel is necessary for your rehabilitation.
There is no indication that you have utilized available programs to prepare yourself for parole release at this time.
Williams subsequently wrote to the Acting Chairman of the Parole Board, Frank Caldwell, asking for reconsideration of the denial; Caldwell replied on October 28, 1975 that
I feel that the decision rendered by the Parole Board was appropriate based on the seriousness of the crime for which you were convicted.
and in response to a second letter from Williams, wrote on November 21, 1975 that
I wish to again indicate to you that the decision rendered by the Parole Board in denying you Parole release was appropriate As I indicated to you the Parole Board not only considers a person's past pattern of criminal behavior, but also his institutional adjustment and future potentials in the community. Based on all of the above the reviewing commissioners felt that if released you would not remain at liberty without violating the law and that your release would not be compatible with the welfare of society.
After the parole hearing, Williams also applied for participation in a work release program at the Eastern Correctional Facility in Napanoch, New York, where he was then confined. This application was denied on November 6, 1975 by the Temporary Release Committee at the prison on the ground that Williams had too much time left before his next scheduled parole hearing.*fn2 A subsequent application for work release made in December 1975 was denied, according to plaintiff's affidavit, on the grounds of the "Assaultive nature of present offenses" and his "Lack of meaningful work and educational program", although Williams states he believes the "real basis for the denial . . . is because of the false information in his files." (Plaintiff's March 30, 1975 affidavit of facts at 2, 3).
Finally, Williams applied for participation in the prison's furlough program for home visits in July 1975 and November 1975; these applications were denied each time, with "Nature of Offense" given as the reason.
In the meantime, Williams' Southern District action began to change its focus to the September 1975 denial of parole. After securing an extension of time, defendants moved on November 12, 1975 to dismiss the complaint for failure to state a claim on which relief may be granted, Fed. R. Civ. P. 12(b)(6); the district court, characterizing plaintiff's claim as "that his reputation has been hurt and his eligibility for parole and other privileges has been severely limited by the ex parte inclusion in his institutional files of certain material classifying him as mentally disturbed, of which he was given no prior notice or opportunity to contest its factual basis," denied the motion to dismiss on the basis of Cardaropoli v. Norton, 523 F.2d 990 (2 Cir. 1975). On January 5, 1976, Williams moved for summary judgment, Fed. R. Civ. P. 56, claiming that the September 11 parole hearing had been held before he had opportunity to learn that he has been "classified" as mentally disturbed, thus depriving him of the opportunity to contest that characterization, and requesting for the first time an order to show cause why he should not be granted a new parole hearing or, in the alternative, be released on parole. The district court, recognizing that a claim for immediate release sounds in habeas corpus and cannot be granted under 28 U.S.C. § 2254 unless a plaintiff has exhausted state remedies, elected to ignore Williams' request for immediate release and to "focus instead on the other forms of relief demanded by plaintiff," (April 9, 1976 order, at 4 n.1).
The district court's consideration of Williams' motion for summary judgment was deferred because of deficiencies in the defendants' affidavit in opposition; on April 9, 1976 the court ordered that the deficiencies be cured within 20 days and also that the defendants turn over for in camera inspection "all material in plaintiff's institutional files which contain any reference to his alleged mental instability, including the alleged threats."
On May 3, 1976, the Assistant Attorney General newly assigned to the Williams case wrote to the district court suggesting that the decision rendered by Judge Judd in Williams' related habeas corpus action in the Eastern District on April 12, 1976, Williams v. Caldwell, 75-C-1948, established as res judicata that the reasons given for the denial of Williams' parole were adequate as a matter of federal law; the letter, a copy of which was sent to Williams, requested that Judge Knapp's April 9 order be reconsidered in light of the April 12 Eastern District judgment. The defendants were apparently informed orally by the court that the order would remain in effect. Defendants state that they also informally requested additional time to brief whether plaintiff's state probation report was properly subject to disclosure in the case.
When the defendants still had not complied fully with the April 9 order two months later, Judge Knapp filed an order granting Williams' motion for summary judgment in default on June 11, 1976, ordering the defendants to "Forthwith delete all materials in plaintiff's parole file classifying him as mentally disturbed" and "Forthwith grant plaintiff a new release hearing, at which none of such material is to be considered".
On July 9, 1976, the defendants filed notice that they would move to vacate the entry of default pursuant to Fed. R. Civ. P. 55(c), and submitted the material requested by the district court including the submission for in camera inspection of all materials arguably characterizing plaintiff as emotionally disturbed: the latter materials were a presentence report dated April 30, 1964; psychiatric progress notes dated July 8, 1964, May 31, 1973, June 12, 1974, and August 26, 1975; a pre-parole hearing data sheet dated July 30, 1975; Williams' 1971 letter to Justice Cone; and the letters from Chief Probation Officer Fastov and Justice Cone. In support of their motion to vacate, defendants described their delay in responding to Williams' motion for summary judgment as inadvertent, and argued that an order requiring the expunging of the materials concerning Williams' mental health was unwarranted because any opinions characterizing him as mentally disturbed were rendered on the basis of professional judgment, and because state law required the Parole Board to have before it any available evidence of mental condition for each parole applicant, New York Correctional Law §§ 6-a, 211, and required that any inmate serving a sentence for murder undergo psychiatric evaluation prior to appearance before the Parole Board, 9 New York Code of Rules and Regulations § 1.5. In addition, the defendants argued, the in camera material was neither privileged from disclosure or already known to Williams.
On July 23, 1976, Judge Knapp filed a Memorandum and Order accepting defendants' excuses for delay, but rejecting their substantive defenses as a matter of law. Apparently viewing its prior order requiring deletion of material from Williams' institutional file merely as a prod to secure the defendants' answer to Williams' motion for summary judgment, the court stated that the "issue before us . . . is not whether the plaintiff is entitled to a 'sanitized' file devoid of adverse information, but rather, whether he is entitled to be informed of the nature of that adverse information and to be given an opportunity to rebut it." Citing this court's decisions in Velger v. Cawley, 525 F.2d 334 (1975), reversed on other grounds, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92, 45 U.S.L.W. 4175 (1977), and Cardaropoli v. Norton, 523 F.2d 990 (1975), the district court stated that "It is beyond cavil that classification as mentally disturbed imposes a stigma to such an extent as to constitute a deprivation of 'liberty' within the meaning of the due process clause," and that "plaintiff has alleged - and defendants nowhere dispute - that he has been denied social furloughs, participation in work-release and release on parole as a direct result of the inclusion in his file of the adverse information here involved." The defendants' claim that certain documents were privileged from disclosure could be accommodated, said the court, by providing Williams with "a summary of the materials involved and the conclusions stated therein" when the confidentiality of the source had to be maintained.
The district court thereupon specified (1) that within 30 days defendants should provide Williams with "copies of all unconfidential material in his institutional file," and "a fair summary of confidential material, which summary shall not reveal sources, but shall fairly state any conclusions adverse to the plaintiff which may be drawn therefrom"; and (2) that no sooner than 10 days after providing such material, but within 60 days of the court's order the Parole Board should grant Williams a new parole release hearing. Judge Knapp incorporated these two requirements in a final judgment order filed August 5, 1976. The final judgment did not include the relief originally afforded Williams of expunging from his parole file all materials classifying him as mentally disturbed and a new release hearing at which none of the expunged material could be considered, a disparity which is puzzling since Judge Knapp declined to vacate his June 11 entry of default; Williams, however, does not attack the final judgment and order. It is from the August 5 judgment that defendants now appeal; the court granted a stay of Judge Knapp's order pending appeal.
On appeal, the defendants argue that Williams' action should have been treated as a habeas petition and been dismissed by the district court for failure to exhaust state remedies under Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); that Williams' claim in the Southern District was barred by Judge Judd's dismissal of his Eastern District petition; and that parole applicants are entitled to no due process protections at all and certainly, under our decisions in Haymes v. Regan, 525 F.2d 540 (2 Cir. 1975), and Billiteri v. United States Board of Parole, 541 F.2d 938 (2 Cir. 1976), no protection as extensive as a right of prior discovery of institutional and parole files.
A preliminary question which must be resolved concerns the effect of the default judgment on the scope of our review. Appellee argues that because Judge Knapp declined to grant defendants' motion to vacate the entry of default and, in the August 5 final judgment, granted plaintiff's motion for summary judgment "on default", we need not reach the merits in order to affirm the judgment below. We see no basis for this contention, for the district court made clear that it declined to set aside the entry of default solely because of its view that the defendants had no meritorious defense to the action. It stated in its July 23 order that
we accept as valid counsel's excuses for delay in responding to plaintiff's motion for summary judgment and the various directives of the court, [but] we find that defendants' proffered defenses are without merit. For that reason, the motion to vacate is denied. (Emphasis added).
We wish to make crystal clear that we have exercised all our discretion in the defendants' favor and have denied the motion to vacate solely because in our view the defense suggested is as a matter of law unavailable.
Because Judge Knapp viewed the judgment as in effect a ruling on the merits, we do not think he intended by the form of his judgment to preclude our review on the merits. We would in any event doubt whether a district court could properly decline to set aside an entry of default when it has "accept[ed] as valid counsel's excuses for delay" and where, as we determine here, the party seeking to set aside the default has a substantial meritorious defense. Cf. 6 J. Moore, Federal Practice para. 55.10, at 55-233-36 & n.21 (2d ed. 1976); 10 C. Wright & A. Miller, Federal Practice and Procedure §§ 2693, 2697 (1973); Gill v. Stolow, 240 F.2d 669, 670 (2 Cir. 1957); SEC v. Management Dynamics, Inc., 515 F.2d 801, 814 (2 Cir. 1975); Horn v. Intelectron Corp., 294 F. Supp. 1153, 1155 (S.D.N.Y. 1968); Hazzard v. Weinberger, 382 F. Supp. 225, 228 (S.D.N.Y. 1974), aff'd without opinion, 519 F.2d 1397 (2 Cir. 1975); SEC v. Vogel, 49 F.R.D. 297, 299 (S.D.N.Y. 1969). Rather than remand for the formal vacation of the default judgment and entry of summary judgment simpliciter, we will treat Judge Knapp's July 23 and August 5 orders as constituting in effect a vacation of the default judgment and substitution of ordinary judgment in favor of plaintiff.
Appellants argue that because Williams' object in this action was ultimately to gain release from prison through a new parole hearing unaffected by the disputed material in his institutional files, his action should have been treated as one for habeas corpus under Preiser v. Rodriguez, supra, and been dismissed for failure to exhaust state remedies pursuant to 28 U.S.C. § 2254(b).
The problem of deciding which prisoner petitions must be considered exclusively as petitions for habeas corpus under § 2254 requiring exhaustion of state judicial remedies and which lie properly as civil rights actions under 42 U.S.C. § 1983 where no exhaustion of state remedies is required, has not been an easy one. A petition which seeks release because of a constitutional defect in the conviction clearly falls within the former category, e.g., Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397 (1953); Leyra v. Denno, 347 U.S. 556, 98 L. Ed. 948, 74 S. Ct. 716 (1954). A petition protesting against prison conditions, but not seeking release, equally clearly falls within the latter, e.g., Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964) (inmate's right to purchase religious publications); Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (living conditions and disciplinary measures while confined in maximum security); Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (use of solitary confinement as a disciplinary measure); Sostre v. McGinnis, 442 F.2d 178, 182 (2 Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972).*fn3 In Preiser v. Rodriguez the Supreme Court ruled with respect to an intermediate category of petitions claiming that ...