Anderson v. Recore

• Decision Date: 04 May 2006
• Docket Number: Docket No. 05-4096-PR.
• Citation: 446 F.3d 324
• Parties: Simon ANDERSON, Plaintiff-Appellee, v. Director James F. RECORE, Temporary Release Programs, Department of Correctional Services, Superintendent Joseph Williams, Lincoln Correctional Facility, Sr. Counselor Johnella Hill, Department of Correctional Services, Defendants-Appellants, Commissioner Glenn S. Goorde, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 324

446 F.3d 324

Simon ANDERSON, Plaintiff-Appellee, v. Director James F. RECORE, Temporary Release Programs, Department of Correctional Services, Superintendent Joseph Williams, Lincoln Correctional Facility, Sr. Counselor Johnella Hill, Department of Correctional Services, Defendants-Appellants Commissioner Glenn S. Goorde, Defendant.

Docket No. 05-4096-PR.

United States Court of Appeals, Second Circuit.

Argued: January 23, 2006.

Decided: May 4, 2006.

Simon Anderson, pro se (Glenn Finley, Glenn Finley & Associates, on the brief), Bronx, New York.

Daniel J. Chepaitis, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, on the brief; Caitlin J. Halligan, Solicitor General, Michael S. Belohlavek, Senior Counsel, Division of Appeals & Opinions, of counsel), New York, New York, for Defendants-Appellants.

Before: WALKER, Chief Judge, WINTER and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Defendants-appellants James F. Recore, Director of Temporary Release Programs of the New York State Department of Correctional Services ("DOCS"), Joseph Williams, Superintendent of the Lincoln Correctional Facility, and Johnella Hill, senior DOCS counselor, (collectively, "defendants") appeal from the entry of partial summary judgment for plaintiff-appellee Simon Anderson by the United States District Court for the Southern District of New York (Daniels, J.) on Anderson's claim that his removal from a temporary release program without notice and a hearing before the Lincoln Temporary Release Committee ("TRC") violated his right to due process. Specifically, defendants appeal from the entry of partial summary judgment denying their claims of qualified immunity and granting summary judgment to Anderson on liability. On appeal, defendants argue that the district court erred in finding a due process violation because Anderson received all the process he was due in a disciplinary hearing held after Anderson tested positive for cocaine and that this test result formed the basis for the TRC's decision to remove him from the temporary release program. We disagree and hold that the Due Process Clause required notice to Anderson of the TRC hearing date and some opportunity for Anderson to have been heard before the TRC acted. We reverse the partial judgment of the district court, however, because defendants are entitled to qualified immunity.

BACKGROUND

The facts relevant to this appeal are not in dispute. Anderson was convicted of robbery in 1992 and sentenced to an indeterminate term of 56 months' to 14 years' imprisonment. In 1995, the TRC granted him permission to participate in a temporary work release program, pursuant to which he lived and worked outside the prison five days a week. By the Spring of 1996, Anderson lived seven days a week outside the prison and reported to the Lincoln Correctional Facility twice a week.

On May 20, 1996, Anderson submitted a sample for urinalysis that tested positive for cocaine. When he reported to the Lincoln Correctional Facility on June 5, 1996, he was detained and, on June 13, 1996, he was served with a misbehavior report charging him with using a controlled substance and violating the rules of the temporary release program. Anderson pleaded not guilty to the charges. On June 14, 1996, the Lincoln Correctional Facility convened a disciplinary hearing, known as a "Tier III" hearing, before a disciplinary hearing officer. Anderson did not seek to call any witnesses at the hearing. At the conclusion of the hearing, the disciplinary officer sustained the charges against Anderson and sentenced him to a mandatory disciplinary surcharge of $5, 30 days' loss of phone and commissary privileges, and 30 days' confinement to a dorm bedroom.¹ The hearing officer also referred Anderson's case to the TRC. Anderson was given written notice of the disposition of the Tier III hearing, as well as the fact that the matter would be referred to the TRC. On June 19, 1996, Anderson was transferred from the Lincoln Correctional Facility to the Riverview Correctional Facility to serve his 30 days of confinement in a dorm room. Anderson filed an administrative appeal of the Tier III decision and the decision was ultimately affirmed on August 12, 1996.

In the evening of June 19, 1996, after Anderson had been transferred to Riverview, the TRC met at Lincoln Correctional Facility to consider Anderson's case. It is undisputed that Anderson did not have notice that the meeting would occur on that day and did not attend because he had been transferred to Riverview that morning. Because Anderson already had suffered a drug relapse and had participated in a drug relapse program, the TRC did not have the authority to recommend another drug relapse program. Instead, it could only recommend his removal from the temporary release program or his continued participation in the program. The TRC recommended that Anderson be removed from the program.

Anderson then brought an action in state court pursuant to Article 78 of the New York Civil Practice Law and Rules, which provides a mechanism for judicial review of administrative decisions, against defendant-appellant Joseph Williams challenging his removal from the temporary release program without notice or an opportunity to be heard. On June 16, 1997, the New York County Supreme Court held that the revocation of Anderson's temporary work release without notice or an opportunity to be heard before the TRC violated his right to due process and ordered a hearing. Anderson v. Williams, 173 Misc.2d 65, 660 N.Y.S.2d 957 (N.Y.Sup.Ct.1997). In September 1997, DOCS and Anderson settled the suit, agreeing that DOCS would not appeal and that Anderson would be reinstated on temporary release. On September 4, 1997, Anderson was reinstated to the temporary release program.

On February 9, 1999, Anderson filed this civil rights action pursuant to 42 U.S.C. § 1983, asserting that his removal from the temporary release program violated his right to due process under the Fourteenth Amendment to the Constitution and seeking damages for the fifteen months during which he was prohibited from participating in the work release program. Adopting the report and recommendation of Magistrate Judge Henry Pitman, the district court dismissed the complaint against defendants, holding, inter alia, that they were entitled to qualified immunity because the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), cast doubt upon whether an inmate had a sufficient liberty interest in temporary release to require notice and a hearing before its deprivation and, by extension, upon our holding to that effect in Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir.1978). See Anderson v. Goord, 99 Civ. 0975, 2001 WL 561227, at *1 (S.D.N.Y. May 24, 2001) ("Anderson I"). The district court also dismissed the complaint against defendant DOCS Commissioner Glenn Goorde on the ground that Anderson had not alleged sufficient personal involvement, a determination that Anderson did not appeal. See id. at 2001 WL 561227, at *2. On appeal, this Court reversed the qualified immunity decision, holding that Sandin did not call into question the continued validity of Tracy. Anderson v. Recore, 317 F.3d 194, 201-02 (2d Cir.2003) ("Anderson II"). In doing so, we noted that "[n]either party argues that any procedural guarantees Anderson enjoyed at [the Tier III] hearing justify the lack of due process accorded Anderson with respect to the revocation of his temporary release status" and thus did not address that question. Id. at 196 n. 1.

On remand, defendants moved for summary judgment on the ground left open in Anderson II — that the Tier III hearing provided Anderson with all the process he was due and that, even if it did not, they were nonetheless entitled to qualified immunity. The district court rejected defendants' argument that the Tier III hearing was sufficient because it was the "functional equivalent" of a TRC hearing. See Anderson v. Recore, No. 99 Civ. 0975, 2005 WL 1515412, at *2-3 (S.D.N.Y. June 22, 2005) ("Anderson III"). The district court noted that the revocation of temporary release is more similar to the revocation of parole than to a prison disciplinary hearing and thus that more process is required than is provided in a Tier III hearing. See id. at *2. Looking to the parole revocation procedures established in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the district court found that defendants' failure to notify Anderson of the TRC hearing and to provide him an opportunity to present any evidence or argument on his behalf deprived Anderson of due process. Anderson III, 2005 WL 1515412, at *3. The district court further concluded that the Tier III hearing was not the functional equivalent of the TRC hearing because the TRC considered evidence not at issue in the Tier III hearing. Id.

Having found that defendants violated Anderson's right to due process, the district court considered their claims to qualified immunity. Noting this Court's many decisions requiring a hearing prior to the revocation of temporary release, as well as the DOCS regulations that "unequivocally provide that the only proceeding at which an individual's continued participation in the [Temporary Release Program] can be resolved is in the TRC hearing," the district court found that no reasonable official could have thought that the Tier III hearing would satisfy due process for purposes of removing Anderson from temporary release. Id. The district court thus granted summary judgment sua sponte to Anderson on the issue of liability. This timely interlocutory appeal followed.

On appeal, defendants assert that Anderson's right to due process prior to be being deprived of his liberty interest in remaining on temporary work release was satisfied by the Tier III hearing because this hearing resolved all factual...