DeVyver v. Warden, US Penitentiary, Civ. No. 74-621.

• Citation: 388 F. Supp. 1213
• Decision Date: 23 December 1974
• Docket Number: Civ. No. 74-621.
• Parties: Cal Ronald deVYVER, Petitioner, v. WARDEN, U. S. PENITENTIARY, and United States Board of Parole, Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

388 F. Supp. 1213

Cal Ronald deVYVER, Petitioner, v. WARDEN, U. S. PENITENTIARY, and United States Board of Parole, Respondents.

Civ. No. 74-621.

United States District Court, M. D. Pennsylvania.

December 23, 1974.

COPYRIGHT MATERIAL OMITTED

John Rogers Carroll, Philadelphia, Pa., for petitioner.

S. John Cottone, U. S. Atty., Michael D. McDowell, Asst. U. S. Atty., Lewisburg, Pa., for respondents.

SHERIDAN, Chief Judge.

This case is presently before the court on a "motion for execution of order" filed by petitioner, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania. On August 23, 1974, this court issued a memorandum with respect to relator's petition for a writ of habeas corpus and entered the following order:

"In accordance with the memorandum this day filed, it is ORDERED that a writ will issue discharging petitioner from custody unless within thirty (30) days of the date of this order the United States Board of Parole accords petitioner a parole review by an examiner panel on the record, which includes the inmate's prison file and a current institutional progress report.

"It is FURTHER ORDERED that all other relief requested by the petitioner is denied."

In his motion for execution of order, petitioner contends that the United States Parole Board has not adequately complied with the foregoing order for the following reasons: (1) his prison file was not requested by nor forwarded to the Parole Board; (2) the current institutional progress report was not properly prepared and was not a "real" progress report; (3) he was not properly advised of the results of the record review, the reasons given for denial of parole being inadequate, thereby violating both the Board's own regulations and the due process clause of the fifth amendment. Petitioner then filed a "supplement to motion for execution of order" in which he asserts that the Parole Board is subject to the Administrative Procedure Act (A.P.A.), 5 U.S.C.A. § 500 et seq., that pursuant to 5 U.S.C.A. §§ 554, 555 he is entitled to an in-person hearing whenever the Board considers his eligibility for parole and to the other procedural rights afforded by these sections, and that the Board's paroling policy guidelines, 39 Fed.Reg. § 2.20, are invalid because they were illegally promulgated by the Board in violation of 5 U.S.C.A. § 553.

Respondents filed a response to the court's rule to show cause which asserts that with respect to the adequacy of the record review petitioner had not exhausted administrative remedies and argues that the Administrative Procedure Act does not apply to the Parole Board. The court having concluded that the doctrine of exhaustion of administrative remedies is not applicable when the issue is whether the Parole Board has adequately complied with a court order, the court ordered respondents to file material directed to the merits of the issue of whether the Board had fully complied with the aforementioned court order. After respondents complied with this order, petitioner submitted a "traverse" to the material filed by respondents. While the extensive pleadings do raise some issues of fact, these factual issues are not material to the determinative questions of law to be decided and are not relevant to the resolution of the case. Hence, the court can resolve the case without a hearing, as provided in 28 U.S.C.A. § 2243.

The court turns first to the adequacy of the Board's compliance with its order of August 23, 1974, which directed that petitioner be afforded a record review by an examiner panel. On September 12, a hearing examiner panel undertook the record review and considered documents in his parole file maintained at the Regional Office,¹ including an institutional progress report, dated August 29, 1974, which had been prepared by Augustine J. Calabro, a case manager at the Lewisburg Penitentiary. The most important element of the record review is the institutional progress report, since the principal purpose of the record review is to determine whether a prisoner has the exceptionally good institutional program achievement which might justify deviation from the Board's paroling guidelines and an earlier parole release than determined at his initial in-person hearing. 39 Fed.Reg. § 2.20(c) (1974); Stroud v. Weger, M.D.Pa.1974, 380 F.Supp. 897.

The institutional progress report was prepared in accordance with Bureau of Prisons Policy Statement No. 7200.12² with the exception that Section 7 of the Policy Statement — "Evaluation of Release Readiness" — was not complied with and that information was not provided the Board. Section 7 was not prepared because it requires an offender's Treatment Team consisting of his regularly assigned case manager, correctional counselor and case management coordinator to carefully consider the offender's response to his institutional experience and then make an evaluation of his ability to remain in the community without additional violations of the law, and petitioner's regular case manager, L. A. Crutchfield, was on annual leave and therefore unavailable to participate in the preparation of an evaluation of the release readiness of the petitioner. The institutional progress report was prepared in full compliance with all other sections of Policy Statement No. 7200.12 (i. e., in compliance with Sections 1 through 6). All relevant information in petitioner's prison file was contained in the progress report, which was prepared on the basis of the information contained in his central file and from current reports obtained from detail supervisors and quarter officers at the prison. Mr. Calabro, who prepared the institutional progress report, stated in his affidavit that the time allotted by the court's order directing the Board of Parole to accord petitioner a record review did not allow sufficient time to permit preparation of Section 7 of the progress report in the absence of the inmate's regular case manager. In addition, respondents assert that the progress report is adequate for purposes of the record review without the inclusion of Section 7, a contention which the court now rejects. Moreover, respondents should have asked for an extension of time in order to fully comply with the court's order rather than utilize a progress report that was incomplete.

However, since the court did not precisely define what it meant by a record "which includes petitioner's prison file and a current institutional progress report," since this is the first case to raise the question of what constitutes an adequate progress report and since this was among the first orders requiring preparation of a progress report for a record review for a § 4208(a)(2) prisoner at Lewisburg, the court has concluded that respondents shall have thirty days to conduct a record review which utilizes a progress report that includes an evaluation of release readiness pursuant to Section 7 of Bureau of Prisons Policy Statement No. 7200.12.

Furthermore, the court holds that a current institutional progress report is one that fully complies with Bureau of Prisons Policy Statement No. 7200.12. (See Appendix for the text of this policy statement.) An adequate record review consists of a review by an examiner panel of a record containing the above-defined institutional progress report and all other materials in the inmate's parole file. Because the progress report, properly prepared, contains all the relevant information contained in an inmate's prison file, it is not necessary that the material in the prison file actually be sent to the examiner panel. In addition, the court holds that Bureau of Prisons Policy Statement NE-7200.13³ — which requires that the entire progress report, with the exception of the recommendation section, evaluation of community adjustment section and confidential information from other agencies be disclosed to the inmate — is applicable to the progress reports prepared for § 4208(a)(2) record reviews. In the instant case, petitioner has been provided with a copy of the progress report that was prepared,⁴ and the court directs that the contents of the new progress report to be prepared be disclosed to petitioner in accordance with Policy Statement NE-7200.13.

It should be noted that petitioner claims that he has "new information" to disclose which would justify his release on parole, but that he has no way to submit this information to the Parole Board because of its inadequate procedures and haphazard handling of parole cases. This contention is without merit. The Parole Board is always receptive to new information from or about federal prisoners. 28 C.F.R. Section 2.28 provides:

"Notwithstanding the appeal procedure of § 2.25 and § 2.26, the appropriate Regional Director may on his own motion reopen a case at any time upon the receipt of new information of substantial significance and may then schedule an institutional hearing or take any other action authorized under the provisions of § 2.25. Original jurisdiction cases may be reopened under the procedure of this section on the motion of two out of three Regional Directors and may be scheduled for an institutional hearing or for review by the Regional Directors on the record."

Thus, the Board pursuant to its own regulations can receive and act on new information at any time, and an inmate need not wait for his next scheduled review hearing to submit information to the Board.

Petitioner contends that after the record review the Board did not properly advise him of the reasons for its decision and that the reason given, that no change was warranted in the Board's original decision based on the information reviewed by the examiner panel, is an inadequate reason for parole denial which violates the due process clause and the Board's own regulations with respect to giving reasons for its parole decisions, 39 Fed.Reg. § 2.13 (1974). Since the Board stated after the record review that no change of its initial parole decision with...