Williams v. Ward

HAYS, Circuit Judge

(dissenting):

I dissent.

*1163 The opinion of the court correctly holds that neither Preiser v. Rodriguez, supra, nor principles of res judicata require that this action be dismissed. 1 Furthermore, the court recognizes that although the Supreme Court has not yet decided whether due process safeguards apply to parole release hearings, in this circuit it is well settled that parole applicants enjoy at least some due process rights. See, e. g., Haymes v. Regan, supra; United States ex rel. Johnson v. Chairman, New York State Board of Parole, supra; Billiteri v. United States Board of Parole, supra, 541 F.2d at 945. My difference with the court, therefore, is narrow. I would hold that Williams is entitled to due process protections and that, more specifically, the district court’s order properly reflects the respective interests of Williams and the state in arriving at the calculus for how much process is due in this case.

The question presented for our decision, essentially, is whether Williams had the right to discover certain information in his institutional files. Certainly, it cannot be gainsaid that a parole board has the right, indeed the obligation, to consider an inmate’s mental condition in deciding whether or not a release on parole is appropriate. See, e. g., New York Correction Law §§ 211, 214(2H4); 7 N.Y.C.R.R. § 1910.-15(b); 9 N.Y.C.R.R. §§ 1.5, 1.9. Williams, recognizing this to be so, does not claim that he is entitled to have deleted from his files all adverse information; rather, he seeks only discovery of that information and an opportunity to rebut it at a new release hearing.

Of course, the success of Williams’ claim depends on whether the failure to grant such relief would constitute a deprivation of “liberty” within the meaning of the due process clause. As I read this court’s decisions on the due process rights of parole candidates, the constitution mandates that Williams be afforded the relief requested.

The court today admits that “there may be circumstances where an inmate plausibly contends that the only way he can demonstrate reliance on an impermissible factor or can show a particular allegation concerning his record to be false ., is by obtaining access to the detailed evidence in his file, albeit in redacted form.” See United States ex rel. Johnson v. Chairman, New York State Board of Parole, supra, 500 F.2d at 934. The court denies, however, that Williams is such an inmate, holding that “[t]here is no showing that Williams suffered any prejudice from the lack of access to his files.” I disagree.

Throughout the proceedings below, both in his complaint and in his motion for summary judgment, Williams asserted a very real prejudice in having been denied access to his files. Specifically, he claimed, and continues to claim, that the information characterizing him as “mentally disturbed” is false, and that he has been denied social furloughs, work release, and parole because of the inclusion of that information in his files. At no stage in this proceeding has the state disputed Williams’ allegation that he has suffered these deprivations because his files contain the adverse information *1164 here at issue. Under these circumstances, I cannot understand the court’s finding that there is “no indication that the Parole Board relied dispositively on Williams’ psychiatric diagnosis in denying parole. . . ” The state’s failure to deny Williams’ allegations is for me tantamount to an admission that those allegations are true; that failure cannot be explained away with the observation that “defendants’ procedural pose in this case was at times somewhat inept.” Note 10, supra.

It is true that “[w]here the evidentiary matter in support of [a] motion [for summary judgment] does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 160 , 90 S.Ct. 1598, 1609 , 26 L.Ed.2d 142 (1970), quoting from Advisory Committee Note on 1963 Amendment to subdivision (e) of Fed.R. Civ.P. 56. However, in Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972), we interpreted the 1963 amendment to Rule 56 as expressing

“the standard always applied in this Circuit that ‘[w]hen a party presents evidence on which, taken by itself, it would be entitled to a directed verdict . . . it rests upon [the opposing] party at least to specify some opposing evidence which it can adduce and which will change the result.’ Radio City Music Hall Corp. v. United States, 135 F.2d 715, 718 (2d Cir. 1943).”

Thus, in Donnelly we affirmed the district court’s grant of summary judgment despite the opposing party’s denial of the movant’s allegations, holding that

“[a] party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial, for in doing so he risks the possibility that there will be no trial. A summary judgment motion is intended to ‘smoke out’ the facts so that the judge can decide if anything remains to be tried.”

Id. (footnote omitted). See also Economou v. United States Department of Agriculture, 535 F.2d 688, 696 (2d Cir. 1976); Hahn v. Sargent, 523 F.2d 461, 467 (1st Cir. 1975); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970).

On the record in this case, I think it clear that Williams has presented evidence which, taken by itself, would entitle him to a directed verdict. If the state knew of facts which indicated that there remained genuine issues to be tried, it had the obligation to come forward with those facts or risk summary judgment. On the evidence before him Judge Knapp properly decided that nothing remained to be tried. 2

Once the facts are viewed in this light, our decision in Cardaropoli v. Norton, supra, takes on added significance. In that case we held that classification of a federal prisoner as a “special offender” created a “grievous loss”, Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. 2593 , inasmuch as that designation hindered eligibility for “social furloughs, work release, transfer to Community Treatment Centers, and the opportunity for early parole . . . .” 523 F.2d at 994 . We therefore ruled that that label might not be imposed without affording the inmate written notice of the coiitemplated classification, the reasons therefor, and the evidence to be relied upon, and a personal appearance before an impartial decision-maker. Id. at 996.

In this case, although Williams has not been officially designated as “mentally disturbed,” on the above facts he has in a very real sense been specially classified and, as a result, has suffered a “grievous loss” of the type referred to in Morrissey v. Brewer. It follows that he must be afforded “basic elements of rudimentary due process.” Cardaropoli v. Norton, supra, 523 F.2d at 995 . See also Shelton v. Taylor, 550 F.2d 98, 102 (2d Cir. 1977); Zurak v. Regan, 550 F.2d 86, 92-93 (2d Cir. 1977); Childs v. *1165 United States Board of Parole, 167 U.S. App.D.C. 268, 511 F.2d 1270 , 1278 (1974). 3

I do not read our decision in Holup v. Gates, supra, to mandate a contrary conclusion. In Holup, we remanded, “with some reluctance,” 544 F.2d at 87, because it was unclear from the record whether the alleged inaccuracies in plaintiffs’ parole files were material to the parole decision. In this case,' however, there is undisputed evidence that the adverse information in Williams’ file did contribute to the denial of parole. Furthermore, defendants have not claimed, as did the Connecticut Board of Parole in Holup, that the burden imposed by the district court’s order would be unduly onerous. 4

Moreover, I find Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976), cited by appellants for the proposition that there is no due process right to discover one’s pre-sentence report, distinguishable from the instant case. In Billiteri , the relevant statute provided for no access to the pre-sentence report. Compare New York Criminal Procedure Law § 390.50(2) (McKinney 1975) (making generally available to the defendant or his attorney the pre-sentence report or memorandum). Furthermore, Billiteri and his counsel had received a copy of the report in the district court and had “had full opportunity . to rebut any or all of the statements con-tabled therein and to point out to the court any particular prejudice suffered . but they made no attempt to do so.” 541 F.2d at 945 .

More significantly, it has long been settled doctrine that the requirements of procedural due process vary according to the particular facts of each case. Morrissey v. Brewer, supra, 408 U.S. at 481 , 92 S.Ct. 2593 ; Goldberg v. Kelley, 397 U.S. 254, 262-63 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961). 5 Thus, in balancing Williams’ interest in an accurate parole file against the state’s interest in an orderly system of prison administration, see Holup v. Gates, supra, 544 F.2d at 85-86; Haymes v. Regan, supra, 525 F.2d at 542-43; Cardaropoli v. Norton, supra, 523 F.2d at 995 ; see generally Friendly, Some Kind of Hearing, 123 U.Pa. L.Rev. 1267, 1278 (1975), 6 the court must apply a standard which is, in a sense, unique to this case.

The private interest here affected is clearly of the utmost importance. The inclusion in Williams’ file of the information characterizing him as mentally disturbed works a “serious alteration in the inmate’s conditions of confinement,” Cardaropoli v. Norton, supra, 523 F.2d at 995 , and makes imperative the need for an accurate file. 7

*1166 Against this defendants assert rather vaguely that some of the information in Williams’ file, such as his presentence probation report, is confidential. Although it is not clear that the file does in fact contain confidential material, see, e. g., New York Criminal Procedure Law § 890.50(2) (McKinney 1975), I would agree with the district court that, in any event, “the seeming dilemma posed [by defendants’ confidentiality claim] is more imaginary than real. Defendants can provide plaintiff with a summary of the materials involved and the conclusions stated therein while at the same time maintaining the confidentiality of any sources upon which the conclusions may be based.” Williams v. Ward, 416 F.Supp. 1123 at 1125 (S.D.N.Y.1976).

Finally, there is one particularly troubling aspect of the court’s opinion. At no time during the proceedings below or in its arguments before this court has the state so much as mentioned the possible administrative burden of allowing Williams to inspect his parole file. Nevertheless, the court rests today’s decision in large part on the observation that “the burden of redacting files for all parole applicants can be a considerable one. . . . One hesitates . to place the federal courts fully astride the discretionary decisions of state parole boards . . ..” Supra at 1160 (emphasis added). 8 This is both unsound and unfair.

By not so subtly raising the specter of the impossible administrative burden that would be occasioned by granting parole applicants broad rights to inspect their files, the court belies its earlier recognition of the principle that the quantum of process due varies depending upon the precise facts of each case. I favor no per se extension of discovery rights to parole candidates, and do not read the opinion below to suggest one. I would only hold that on the record before us, due process requires that Williams be granted access to his files and a new release hearing.

If the court nevertheless feels that the issue of administrative burden is relevant here, I would think that as a matter of fairness we should remand this case to the district court, as we did in Holup v. Gates, supra, for a determination of what that burden is likely to be. By failing to do so the court rests its decision at least partly on observations not supported by the record before us.

The court seeks to justify its decision to dismiss the complaint rather than remand with the comment that “there is no suggestion that Williams has any further facts to offer . . ..” Supra at 1162. This is disingenuous. Williams, understandably, had no reason to suspect that there were any additional relevant facts involved here. He should, at the very least, be given an opportunity to rebut the claim of undue burden.

For the foregoing reasons, I respectfully dissent.

. Despite the statement in Part III of the opinion that “[i]t can be strongly argued that this claim is precluded by Judge Judd’s finding,” supra at 1155, the court takes pains to rest its decision “on the merits rather than on the ground of res judicata.” Supra at 1155. Since the res judicata discussion is therefore not dis-positive of this appeal, I will but briefly note my disagreement with the court’s suggestion that issue preclusion should operate here.

Although Williams was indeed “pursuing two actions simultaneously,” supra at 1154, it does not follow that he could therefore “fully anticipate the potential barring effect of the earlier judgment in deciding not to appeal from Judge Judd’s determination.” Id. The court recognizes that the identity of the two claims is by no means clear; under these circumstances I would not penalize a plaintiff for failing to appeal from one decision by holding that collateral estoppel bars consideration of an arguably different claim presented in a second action. Moreover, insofar as Judge Judd’s decision rested on a finding that Williams had failed to exhaust his state remedies, its collateral estoppel effect is even less clear. See Restatement of Judgments Second § 48.1 comment e, at 49 (Tentative Draft No. 1, March 28, 1973); Developments in the Law — Res Judicata, 65 Harv.L. Rev. 818, 845 (1952). I would therefore hold that the Caldwell decision has no res judicata effect in this action.

. Nor do I agree that Williams was already equipped to counter the adverse information without gaining access to his files. Williams knew only that at least two letters regarding his mental capacity were included, note 8, supra ; without inspection of the file, he would have no way of effectively rebutting the information contained therein.

. The court’s reliance on Zurak v. Regan, 550 F.2d 86 (2d Cir. 1977), note 7, supra, is misplaced. The record before us, unlike that in Zurak , clearly supports plaintiffs allegations that he has been denied parole on the basis of “erroneous information,” id at 86, and that a statement of reasons is inadequate to protect him from a decision by the parole board “based on impermissible grounds.” Haymes v. Regan, supra, 525 F.2d at 544.

. In any event, Holup was before us “in an unusual posture.” 544 F.2d at 85. The only plaintiff who remained from the three that had originally brought the action had not had a hearing and, therefore, because he had no record to present for review, was forced to argue “that as a matter of constitutional law, any parole procedure which fails to allow every prospective parolee an inspection of his file in advance of his hearing, whether requested or not, is a violation of the Fourteenth Amendment by the State involved.” Id (footnote omitted) Understandably, the court was unwilling to reach so broad a proposition where a remand could refine the issues under consideration and produce a more complete record for review.

. The court reaffirms this principle today with its observation that “the definition of minimum due process is often sensitive to what proves necessary in practice to a fair procedure. .” (emphasis in original)

. “The required degree of procedural safeguards varies directly with the importance of the private interest affected and the need for and usefulness of the particular safeguard in the given circumstances and inversely with the burden and any other adverse consequences of affording it.”

. Indeed, Williams’ interest is arguably greater than was Billiteri’s; while Billiteri suffered only *1166 the denial of parole, Williams has, in addition, been denied participation in statutorily authorized temporary release programs.

. The court repeats this concern in seeking to distinguish Cardaropoli v. Norton, supra, from the instant appeal on the ground that “the number of [Special Offender] designations • which might be disputed [is] very small . . compared to the number of parole release decisions.” Supra at 1162.