Reply Brief — Montanye v. Haymes

In THE

Supreme Court of the United States

OCTOBER TERM, 1975

74-520

Ernest L. Montanye, former Superintendent of

Attica Correctional Facility, et al.,

Petitioners,

against

Ropyey R. Haymes,

Respondent.

—_—

REPLY BRIEF FOR PETITIONERS

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Two World Trade Center

New York, New York 10047

Tel No. (212) 488-3385

Samus. A. Himsnowirz

First Assistant Attorney General

Marcery Evans Rerrcer

Joret LewittTes

Assistant Attorneys General

of Counsel

TABLE OF CONTENTS

PAGE

ED « td seine bh ebnin eeneabeesbenel 11

TaBLe oF AUTHORITIES

Cases:

Arnett v. Kennedy, 416 U.S. 134 (1974) ............ 4

Board of Regents v. Roth, 408 U.S. 564 (1972) ....3,4,7,9

Bradford v. Weinsteim, vacated as moot, —— US.

——, 44 U.S.L.W. 3372 (December 10, 1975) .... 7

Bradley v. Ward, 81 Misc. 2d 713, 366 N.Y.S. 2d 841

(Gap. Ct. Albamy Cot BBTD) .....ccccccccccces 7

Carlo v. Gunther, 392 F.Supp. 871 (D. Mass. 1975),

vacated and remanded 520 F.2d 1293 (1st Cir.

i cten'andcncicisethse tance te csddeudiseske 5

Fano v. Meachum, 520 F.2d 374 (1st Cir. 1975), cert.

granted, No. 75-252, —— U.S. ——, 4 US.L.W.

3344 (December 8, 1975) .................- 5, 8, 9, 10

Goss v. Lopez, 419 U.S. 565 (1975) ..............4. 3,4

Haymes v. Preiser, 74 Civ. 4151 (S.D.N.Y.) ........ 8

Haymes vy. Regan, 74 Civ. 4150 (S.D.N.Y.) ......... 8

Matter of Brigulio v. New York State Board of

Parole, 24 N.Y. 21, 298 N.Y.8. 2d 704, 246 N.E.

EE ttn ccuveindshoudéie sanebdaicie 6,7

Matter of Hines v. State Board of Parole, 293 N.Y.

S56, SE WIE.Sa STS (IBGE) . 0... oc ccc cccccccees 7

Meyer v. Nebraska, 262 U.S. 390 (1923) ............ 9

li TABLE OF AUTHORITIES

Morrissey v. Brewer, 408 U.S. 471 (1972) .......... 3,10

Paul v. Davis, —— US. ——, 4 U.S.L.W. 4337

Claadl. SB, BEGG) once carccsccccsnceseccesece 5)

People ex rel. Bright v. Ward, 79 Mise. 2d 959, 361

N.Y.S. 2d 809 (Sup. Ct. Bronx Co. 1974) ......

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............

Scott v. Kentucky Board of Parole, cert. granted, No.

74-6438, _—. U.S. ——-, 44 U.S.L.W. 3358 (De-

gg PPPTTTTITITITT TTT 7

Wolff v. McDonnell, 418 U.S. 535 (1974) .......... 3,7

Wood v. Stickland, 420 U.S. 308 (1975) ............ 2

| Statutes and Regulations:

N.Y. Corr. Law

a staatieleh ad Neiaeitia al Siiad,

Di itiin. tind sede vibes tidine dl ebene wi

a aa el ES kc

§ 214(6), L. 1975, ¢. 131, §1........ te

yn onn *

I, 3° 0 is dae hean ne ila ikeee

SN soo danse adda saan dl dabaaeaan

=

to

—

—

—

~_

a nooannrwsnan

ad

In THE

Supreme Court of the United States

OCTOBER TERM, 1975

74-520

—_ <x

~~

Ernest L. Montanye, former Superintendent of

Attica Correctional Facility, et al.,

Petitioners,

against

Ropyey R. Haymgs,

Respondent.

af.

7

REPLY BRIEF FOR PETITIONERS

A.

Defendants agree with plaintiff Haymes (Res. Br. at

6-9) that with regard to his transfer claim, the District

Court properly treated defendants’ motion as a motion to

dismiss, simce no evidentiary material was submitted con-

cerming that claim and defendants did not answer the com-

plant. Aeceordingly, at no point in the proceedings have

defiendants alleged the reason for the transfer nor have

they made any claim regarding what material, if any, ap-

pears im Haymes’ files regarding the transfer, as plaintiff

now asserts (Res. Br. at 24, 27-28).*

ee alee arene of Se one o Se peer

tions that his pro se complaint should be liberally construed and

his tions treated as true (Res. Br. at 6-14). Defendants

treated allegations as true for the purposes of their motion to

dismiss. Although Haymes’ complaint was pro se, he retained

counsel at least seven months prior to the District Court’s deci-

sion. No motion was made to amend the complaint.

2

Haymes further suggests that there is an issue in this

case as to whether he received disciplinary confinement or

the loss of good time credits in connection with the trans-

fer (Res. Br. at 26-29). This is a startling proposition to

be injected by plaintiff at this penultimate stage of the

proceedings since the postulated issue in this case has

always been limited to the constitutional significance, if

any, of a transfer between two maximum security prisons

without a hearing and with no imposition of disciplinary

confinement or good time loss. Indeed, this case would not

be before this Court had either penalty attached. Accord-

ing to the Department’s own regulations in June, 1972

neither penalty could be imposed unless the inmate was

first afforded a disciplinary hearing. It is certainly long

since conceded that Haymes had no hearing at all.

Finally, Haymes blithely asserts that defendants have

“abandoned” the defense of good faith immunity to the re-

quest for monetary damages (Res. Br. at 13 n. 12). This

Court’s recent decisions establish that the defense is one

to be pleaded and proved, rather than asserted on a motion

to dismiss. Scheuer v. Rhodes, 416 U.S. 232 (1974). See

Wood v. Strickiand, 420 U.S. 308 (1975). Accordingly, if

plaintiff prevails in this Court and the case is remanded,

defendants will raise, and are in no respect precluded from

raising, the defense of good faith immunity in their an-

swer.

B.

Recognizing that the due process protection of the Four-

teenth Amendment is inapplicable unless the State has af-

fected a liberty or property interest, Haymes concedes that

he has no property interest in his retention at any par-

ticular maximum security prison but propounds three possi-

ble sources for a protected liberty interest. None of his

suggested possibilities withstands constitutional analysis.

3

1. Haymes first suggests that he has a liberty interest in

protection from arbitrary governmental action, asserting

that “the touchstone of due process is protection of the in-

dividual against arbitrary action of government.” Wolff

v. McDonnell, 418 U.S. 539, 558 (1974) (Res. Br. at 16-17).

This assertion does not answer the question of whether or

not an individual has a liberty interest because the prin-

ciple logically emerges only after a determination has been

reached that a protected interest indeed exists. Thus, the

above-quoted portion of Wolff necessarily appeared after

this Court’s holding that the Nebraska inmates had a statu-

torily-created liberty interest in retention of their good

time credits and preceded its analysis of what process was

then due. 418 U.S. at 558. -

There is, of course, no constitutional right to be free of

all unilateral and possibly mistaken action taken by the

government. It is only when an individual has a protected

interest which is affected by the action that the principle

comes into play. Indeed, any other conclusion would man-

date that any and all governmental action be preceded by

due process, a proposition clearly untenable under this

Court’s recent decisions. E.g. Goss v. Lopez, 419 U.S. 565

(1975); Board of Regents v. Roth, 408 U.S. 564 (1972);

Morrissey v. Brewer, 408 U.S. 471 (1972). Haymes’

proposition, then, merely begs the question of whether or

not there is a liberty interest at stake in this case.*

Moreover, Haymes’ contention assumes the existence of a

factual predicate which if established could compel or pre-

vent the proposed governmental action. However, as dis-

cussed in defendants’ main brief (Pet. Br. at 8-9), there is

no particular set of facts which would entitle Haymes to re-

* Similarly, the alleged punitive or disciplinary motivation for

the transfer is irrelevant to the issue of whether or not a liberty

interest exists. Surely the intent or motivation in the minds of

governmental employees cannot constitutionally define an inmate’s

liberty interest.

4

main at Attica or mandate his transfer to Clinton. Rather,

the Legislature of New York has empowered the Commis-

sioner of Corrections to transfer inmates at his discretion.

N.Y. Corr. Law § 23(1).

“Where Executive discretion is not limited, there is no

need for a hearing. In the latter event, where the

statute has provided ... no conditions at ali, no hearing

is required.” Arnett v. Kennedy, 416 U.S. 134, 181

(1974) (Ware, J. concurring and dissenting) (cita-

tions omitted).

The prison authorities were free to transfer Haymes re-

gardless of whether or not it was established that he had

violated any prison rules; indeed, they were authorized to

transfer him even if it were established that he had vio-

lated no rule.

2. Haymes also seeks a liberty interest in the proposition

that he suffered a grievous loss as a result of the official

action of which he complains (Res. Br. at 17, 20ff). But

as defendants have discussed in their main brief (Pet. Br.

at 13), the severity of the consequences of the challenged

transfer are not part of the analysis for a protected inter-

est; evaluation of grievous loss goes to the “weight” of the

claimant’s interest, not to its “nature.” E.g. Goss v. Lopez,

supra, 419 U.S. at 572-576; Board of Regents v. Roth, supra,

408 U.S. at 570-571.

This Court’s decisions clearly establish that there is no

independent liberty interest created merely because an in-

dividual perceives suffered loss at the hands of the gov-

ernment. “The range of interests protected by procedural

due process is not infinite.” Roth, 408 U.S. at 570. For

example, in Roth, this Court recognized that the teacher’s

continued employment was of substantial “interest” to him

(id. at 570), but held that it was not constitutionally signif-

icant since no liberty or property interest was implicated.

Similarly, injury to one’s reputation may be of great im-

portance to the individual affected and may be sufficient to

5

prevail in a state defamation action, but reputational in-

jury, absent more, does not implicate a liberty or property

interest protected by the Due Process Clause. Paul v. Davis,

— US. —, 44 U.S.L.W. 4337 (March 23, 1976). Claim-

ing grievous loss at the hands of the government begs the

question at issue herein. The Due Process Clause does not

extend to all governmental action which is adverse or is per-

ceived as adverse by a particular individual but only to that

action which affects a protected interest otherwise estab-

lished.*

3. Haymes further suggests that his Fourteenth Amend-

ment interest derives from the possibility of a notation in

his record which might affect his release on parole or the

accumulation of statutory good time credits** (Res. Br. at

26-29). Ses, e.g., Fano v. Meachum, 520 F. 2d 374, 378, 382

(ist Cir., 1975), cert. granted, No. 75-252, US. .

44 U.S.L.W. 3344 (December 8, 1975); Carlo v. Gunther,

392 F. Supp. 871, 878 (D. Mass. 1975), vacated and re-

manded 520 F. 2d 1293 (1st Cir. 1975). The fact that the

transfer may later be taken into account does not mean

that an inmate has a protected interest at the time of the

transfer; indeed, the claim does not even relate to the pro-

cedure attached to the transfer but to mere speculation

about future action with regard to an inmate’s early re-

lease from custody.

* As defendants have previously argued, the hypothetical ad-

verse consequences propounded by Haymes and the Court of Ap-

peals are not constitutionally cognizable as “grievous loss’’ (Pet.

Br. at 14-17).

** Carried to its logical end, plaintiff’s theory of the law would

require notice and a hearing before each and every notation in an

inmate’s file which might be construed as non-complimentary, for

example an evaluation of his performance on a job or perhaps

even the fact of his placement in one job, such as kitchen duty,

rather than another, such as librarian clerk. The consequences of

such a theory are absurd and certainly not compelled by the Con-

stitution. See Fano v. Meachum, supra, 520 F. 2d at 381. Cf.

Paul v. Davis, supra, 44 U.S.L.W. at 4342.

6

Haymes was denied parole release on two occasions

since his transfer, in July, 1974 and July, 1975 and asserts

that he has “no way of knowing” if the Board based its

decisions on events related to the transfer (Res. Br. at 28).

See post at 8.° Haymes further suggests (Res. Br. at

27) that the granting or withholding of good time credits

by the Time Allowance Committee (7 N.Y.C.R.R. Parts 261,

262) might be affected by transfer information in his rec-

ord. The contention that Haymes has a protected interest

derived from the possibility of a notation in his prison

record does not withstand the constitutional analysis re-

quired by this Court’s decisions, nor is it supported by facts

of which this Court may take judicial notice.

Haymes has no protected interest established by the pos-

sibility that his earlier parole applications were affected by

a transfer notation.** A decision denying an inmate early

release does not deprive him of liberty; his liberty was

withdrawn by his conviction. Indeed, he is in no danger of

losing liberty, but to the contrary is seeking liberty. Nor

has he any legitimate claim of entitlement to parole release.

By statutory mandate the decision to parole is discretion-

ary; no particular set of facts can compel a decision by the

Board of Parole. N.Y. Corr. Law § 213, 7 N.Y.C.R.R.

§§ 1910.5, 1910.15; Matter of Brigulio v. New York State

Board of Parole, 24 N.Y. 21, 26-29, 298 N.Y.S. 2d 704, 708-

* Haymes met the Board of Parole again on April 6, 1976. He

was granted parole and will be released on April 13, 1976. His

claim in this action survives since he sought monetary, not declara-

tory or injunctive relief.

** Haymes is without standing to speculate on the actions

of the Time Allowance Committee because he was granted parole

release long before a final decision was to be rendered by the

Committee as to the granting of good time credits. Haymes’

earliest possible statutory release date was 1981. Although the

Committee met every three years to review his record, no final

decision would have been made until the final meeting, held

three months before the statutory release date. 7 N.Y.C.R.R.

§§ 260.4(b), 261.3(a) (b), (g), 262.1 (b).

7

710, 246 N.E. 2d 512, 515-517 (1969); Matter, of Hines v.

State Board of Parole, 293 N.Y. 254, 56 N.E. 2d 572 (1944).

In short, an inmate has no more than a “unilateral expecta-

tion” with respect to his parole release. See Roth, supra,

408 U.S. at 577.*

Moreover, the speculation that a transfer notation might

affect parole release does not vest an inmate with pro-

cedura! rights at the time of the transfer. If this Court

holds that the Due Process Clause is applicable to parole

release proceedings (Scott v. Kentucky Board of Parole,

supra), the transfer can be considered by the Board at the

time that it meets; the prisoner then would have the op-

portunity to challenge or explain the reasons for the

transfer. In fact, New York law already requires that an

inmate meet with the Board before it renders its decision.

N.Y. Corr. Law § 214(4), (5); 7 N.Y.C.R.R. § 1910.10(a).

- *In the interest of brevity, defendants adopt and respectfully

refer the Court to the briefs of the party states and United States

as amicus curiae in Scott v. Kentucky Board of Parole, cert.

granted, No. 74-6438, ——- U.S. ——, 44 U.S.L.W. 3358 (Decem-

ber 15, 1975) and Bradford v. Weinstein, vacated as moot, ——

U.S. ——, 44 U.S.L.W. 3372 (December 10, 1975), arguing that

an inmate has no liberty or property interest in his parole release.

While defendants argue (ante at 6 n.**) that Haymes cannot

rely on the possibility of an adverse decision regarding his good

time credits, having been released on parole, they note that the

above analysis as to parole release applies with equal force to New

York’s good time release program. Unlike the good time scheme

before this Court in Wolff v. McDonnell, supra, 418 U.S. 539, New

York's system is not mandatory. It does not require the granting

of good time credits for good behavior and performance of duties,

nor does it allow withholding only for serious misconduct. See

Wolff, 418 U.S. at 545 and n. 6. Rather, the allowance is not an

automatic award but “may be granted” for good performance or

progress; the allowance is discretionary with the Time Allowance

Committee, as in the parole system. N.Y. Corr. Law § 803(1); 7

N.Y.C.R.R. §§ 260.3(b), 261.3(e); Bradley v. Ward, 81 Misc. 2d

713, 716, 366 N.Y.S. 2d 841, 844 (Sup. Ct. Albany Co. 1975);

People ex rel. Bright v. Ward, 79 Mise. 2d 959, 962-964, 361

N.Y.S. 2d 809, 813-815 (Sup. Ct. Bronx Co. 1974).

8

Alternatively, if the possibility of an adverse parole deci-

sion is sufficient to implicate a liberty or property interest

in the instant situation, it does not follow that a transfer is

invalid unless preceded by due process guarantees; it would

be sufficient to simply expunge the transfer notation from

the records examined by the Board of Parole. See Fano v.

Meachum, supra, 520 F. 2d at 382 (Campse.u, J,, dissent-

ing).

In any event, Haymes indeed has several avenues by

which to ascertain why he was denied parole release in 1974

and 1975. In Haymes v. Regan, 74 Civ. 4150 (S.D.N.Y.),

the same plaintiff, represented by counsel, filed an amended

complaint challenging, inter alia, the failure of the Board

of Parole to give him an adequate written statement of the

reasons for his parole denial.* The District Court granted

relief on this claim; its order required the state to provide

Haymes with a written statement of the reasons for parole

denial and the facts upon which the decision was based.

Pursuant to this judicial order, in September and October,

1975, Haymes received such statements with regard to his

parole denials in 1974 and 1975.** It is quite clear from

those statements that the denials were based on his decid-

edly poor disciplinary record and institutional adjustment.

Haymes’ difficulty adjusting to prison life was not raised

in that action only. In Haymes v. Preiser, 74 Civ. 4151

(S.D.N.Y.), Haymes filed a pro se complaint sworn to on

August 27, 1974. In that complaint he averred that be-

tween May, 1974 and the date of the complaint he had “been

charged with up to as many as one hundred institutional

reports (charges) to which he has been required to appear

* Effective August, 1975 the Board was required by statute to

provide such a statement. N.Y. Corr. Law § 214(6), L. 1975, e.

131, § 1.

** The District Court’s opinion is reported at 394 F. Supp. 711.

The Court's order and the statements provided to Haymes are on

file with the Clerk of this Court.

before an institutional adjustment committee .. .”

(at 5).°

4. Haymes complains that defendants do not recognize

the liberty interests of a prison inmate except as may be

created by statute (Res. Br. at 18). Certainly the range

of values which constitute the liberty interests of free per-

sons in society (see, e.g., Roth, supra, 408 U.S. at 572;

Meyer v. Nebraska, 262 U.S. 390, 399 [1923]) have no ap-

plication to a prisoner. By virtue of his conviction, a

prisoner has been deprived of most of the activities which

represent liberty to non-prisoners—the right to pursue an

occupation, establish a home, choose his residence, and con-

trol his living conditions. Accordingly, a prisoner’s inter-

est in the location of the prison where he resides can not be

found in constitutional concepts of liberty but only in the

statutes and regulations of the state. Defendants have al-

ready shown that an inmate has no legitimate claim of en-

titlement to placement or retention in a particular prison

(Pet. Br. at 7-10). So long as his placement does not vio-

late any constitutional mandate, such as the prohibition

against cruel and unusual punishment, it is certainly accu-

rate in the context of this case to say that an inmate has no

independent liberty interest; absent some statutory entitle-

ment to his retention at a particular prison, Haymes has

no interest protected by the Fourteenth Amendment.

As Judge Campbell stated in his cogent dissent in Fano

v. Meachum, supra, 520 F. 2d at 381:

“Still, even in defining a prisoner’s ‘liberty’ interest,

one must ask not only whether a particular event may

cause loss to the prisoner but whether one in the posi-

tion has any claim to what was taken away.’ Prison-

ers are by definition, prisoners. Changes in the condi-

* The complaint in that case is on file with this Court. Defend-

ants’ motion to dismiss is sub judice; Haymes is now represented

by counsel.

10

tions of confinement, whether involving a different cell

assignment, a new meal schedule, or a transfer to a

new facility, seem to me to fall within the state’s gen-

eral right to confine, safeguard, and rehabilitate. To

treat them as ‘liberties’ belonging to the inmate invites

greater interference with the management of prisons

than seems either wise or constitutionally mandated.

Where within the state penal system a prisoner is to

be lodged seems to me a judgment which the state has

the exclusive right to make—summarily if need be.

Such decisions are part and parcel of its power to keep

the prisoner safely, to protect other prisoners, and to

operate its prisons. State penal institutions normally

consist of more than one institution. Indeed large

states may have dozens of such institutions. Ad-

ministrators must decide where best to place inmates.

They must consider available space and facilities and

which programs are best suited to which inmates...

[P]risoners are involuntary inhabitants and some are

dangerous and unpredictable .. . I do not think the

realities of the state-prisoner relationship admit to

classifying such decisions, when relating to a transfer,

as a liberty interest of the prisoner. Penal authorities

will perhaps think it best to afford safeguards but I do

not think the Constitution can reasonably be said to re-

quire them.

* A civil servant sent to Alaska, a soldier sent to Vietnam,

or a prisoner sent to another institution may, in a private

sense, suffer ‘grievous loss’, but the nature of the organization

and of their role precludes acknowledging any ‘liberty’ or

‘property’ right to remain in one location. Notwithstanding

language in ty Brewer, 408 U.S. 471, 481-84 (1972),

cautioning against inctions based on ‘privileges’ as op-

posed to ‘rights’, it is necessary to consider not only whether

what happens causes subjective loss to the individual, but

whether he has a right to any protection against that loss.”

11

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

Dated: New York, New York, April 13, 1976.

Respectfully submitted,

Louis J. Lerxowi1rTz

Attorney General of the

State of New York

Attorney for Petitioners

Samvuet A. Himsnowrrz

First Assistant Attorney General

Marcery Evans Reirier

Jor, LewitTes

Assistant Attorneys General

of Counsel