Klos v. Haskell
| Citation | 48 F.3d 81 |
| Decision Date | 10 February 1995 |
| Docket Number | No. 684,D,684 |
| Parties | Thomas John KLOS, Plaintiff-Appellant, v. Thomas HASKELL, Superintendent, Monterey Shock Incarceration Correctional Facility, Cheryl Clark, Director of Shock Development, New York State Department of Correctional Services, Philip Coombe, Jr., First Deputy Commissioner, New York State Department of Correctional Services, and Thomas Coughlin, Commissioner, New York State Department of Correctional Services, Defendants-Appellees. ocket 93-2666. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Paola M.G. De Kock, New York City (Mitchell A. Lowenthal, Cleary, Gottlieb, Steen & Hamilton, of counsel), for plaintiff-appellant.
Troy J. Oechsner, Asst. Atty. Gen., Albany, NY , for defendants-appellees.
Before: OAKES, JACOBS and CALABRESI, Circuit Judges.
The issue raised by this appeal is whether a Fourteenth Amendment liberty interest is violated by a prison inmate's unexplained removal from New York State's Shock Incarceration Program, N.Y. Correct.Law art. 26-A (McKinney Supp.1995) (the "shock program"), and his return to the general inmate population. Thomas John Klos, formerly a participant in the shock program, appeals from the September 17, 1993 judgment of the District Court for the Western District of New York, Michael A. Telesca, Judge, 835 F.Supp. 710 (W.D.N.Y.1993), adopting the report and recommendation of Kenneth R. Fisher, Magistrate Judge, granting defendants' motion for summary judgment, denying Klos's motions for partial summary judgment and for various other relief, and dismissing Klos's complaint under 42 U.S.C. Sec. 1983 (1988). We hold that, in light of the broad discretion which the legislature has conferred on shock program officials, no enforceable liberty interest was violated. Accordingly, we affirm.
In 1990, Klos was convicted by a New York state jury of burglary and criminal mischief, for which he was given concurrent sentences of from two to six years and from one to three years, respectively. On December 28, 1990, Klos was transferred from the Downstate Correctional Facility to the Lakeview Shock Incarceration Correctional Facility. Over the following week, Klos was screened and accepted for participation in the shock program, and shortly thereafter he began a six-month program at the Monterey Shock Incarceration Facility operated by the New York State Department of Correctional Services.
The shock program, created by the New York legislature in 1987, provides a six-month voluntary alternative to traditional incarceration for selected youthful, nonviolent offenders. Modelled after military "boot camps," the highly structured, rigorous program is intended to instill a sense of discipline and responsibility in participating inmates. In exchange for successful completion of the program, an inmate becomes eligible for early release on parole. See generally N.Y.Correct.Law art. 26-A (McKinney Supp.1995); N.Y.Comp.Codes R. & Regs. ("N.Y.C.C.R.R.") tit. 7, part 1800 (1989). 1 As the regulations explain, the program provides
a highly structured routine of discipline, intensive regimentation, exercise and work therapy, together with substance abuse workshops, education, prerelease counseling and self-improvement counseling. If an inmate successfully completes the shock incarceration program, he or she will be eligible for parole release and will be awarded a certificate of earned eligibility....
Inmates seeking to enter the program must apply to the shock incarceration screening committee, which reviews the applicant's suitability for the program and forwards a recommendation to the Commissioner of Correctional Services (the "Commissioner") for his approval or disapproval. N.Y.Correct.Law Sec. 867.2. Once admitted to the program, participants, in addition to following a highly structured intensive regimen, must agree to give up privileges enjoyed by the prison population as a whole. Specifically, visits, religious services, commissary privileges, and recreational activities are curtailed, packages are not permitted, personal property is limited, and the wearing of jewelry is forbidden. 7 N.Y.C.C.R.R. Sec. 1800.9. In addition, program participants must obey detailed regulations on personal grooming, including the length of their hair, the type of clothing to be worn, and even the contents of their pockets. Id. Sec. 1800.8.
Before being transferred to a shock facility, each inmate must sign a "Memo of Agreement" outlining the terms and conditions of participation in the program. Id. Sec. 1800.9. The Memo concludes with the following paragraph:
I accept the foregoing program and agree to be bound by the terms and conditions thereof. I understand that my participation in the program is a privilege that may be revoked at any time at the sole discretion of the Commissioner. I understand that I must successfully complete the entire program to obtain a certificate of earned eligibility upon the completion of said program, and in the event that I do not successfully complete said program, for any reason, I will be returned to a nonshock incarceration correctional facility to continue service of my sentence.
N.Y.Correct.Law Sec. 867.3; 7 N.Y.C.C.R.R. Sec. 1800.9(b) (emphasis added). The above-emphasized language mirrors other language in the statute and regulations. See N.Y.Correct.Law Sec. 867.5 ( ).
On January 7, 1991, Klos signed the shock program Memo of Agreement. On January 29, 1991, he was transferred from the Lakeview shock facility to the Monterey shock facility. On April 4, 1991, after completing approximately one-third of the program term, Klos was summarily removed from the shock program, without an explanation, and transferred to the Elmira Correctional Facility.
Defendants did not contend at the time, and have not contended since, that Klos's participation in the shock program was unsatisfactory in any way. They gave no explanation for Klos's transfer, indeed, until after Klos had filed this action and defendants had moved for summary judgment. Defendants now explain that Klos was transferred in response to a letter dated March 27, 1991, sent to defendant Thomas A. Coughlin III, the Commissioner of Correctional Services, by the Nassau County District Attorney, Denis Dillon, objecting to Klos's participation in the program.
In the letter, Dillon objected that Klos's early release--upon completion of the shock program, he would be eligible for parole by July 1991--would present a danger to the community. The crime for which Klos was convicted, Dillon alleged, "was by no means an isolated criminal act," but rather was "part of a score of arsons and burglaries that destroyed three schools and several small businesses on the south shore of Nassau County between June and August of 1989." Letter from Dillon to Coughlin of March 27, 1991, at 1. Dillon's letter sets out in detail a series of allegations regarding these "crimes," without alleging that Klos was ever charged, much less convicted, for any of them. The letter makes reference as well to Klos's "career as a juvenile delinquent in Family Court," information about which "is, of course, not available to us." Id. It notes as well that "Klos's accomplices were themselves chronic offenders who engaged in devil-worship, church vandalism, and on one notable occasion, the desecration of a grave." Id. at 1-2. The letter concludes with a characterization of Klos as a "sociopathic, amoral and anti-social ... atavistic, vengeful, and violent young man who espouses survivalism, and is incapable of interacting in a normal manner with family, friends or society at large." Id. at 2. It recommends that, in view of the danger that Klos poses to society, Klos be removed from the shock program and remitted to a maximum security facility.
On April 4, 1991, Coughlin wrote back to Dillon to inform him that, after reviewing Klos's record, he determined that "although the crimes of conviction do not preclude participation in the Department's Shock Incarceration program, there is sufficient material in Mr. Klos's record to convince me that he is not a suitable candidate for the program." Letter from Coughlin to Dillon of April 4, 1991. The letter noted that "Mr. Klos is no longer in the Shock Incarceration program" and that accordingly he would be required to serve his full minimum term (two to six years) before becoming eligible for parole. That same day, Klos was transferred out of the Monterey shock program into the Elmira Correctional Facility.
On March 16, 1992, Klos brought a pro se action pursuant to 42 U.S.C. Sec. 1983, seeking damages and declaratory and injunctive relief on the ground that his removal from the shock program without notice, explanation, or a hearing violated his due process rights. Klos served interrogatories on defendants on September 23, 1992, seeking information about the reasons for his removal in particular and about the admissions and removal practices of shock program officials in general. On October 29, he filed a motion to compel answers to his interrogatories. Rather than respond to Klos's interrogatories, defendants moved for summary judgment on October 30, 1992 and sought a stay of discovery pending determination of their motion. Klos cross-moved for partial summary judgment. Additionally, he served a second set of interrogatories, identical to the first, along with an affidavit explaining why he needed answers to his interrogatories in order to oppose defendants' summary judgment motion. He moved again for an order to compel answers to his...
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