Tracy v. Salamack, No. 578

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS; PER CURIAM; This appeal is from an order of the United States District Court for the Southern District of New York, Morris E. Lasker
Citation572 F.2d 393
PartiesJames TRACY, William Adams, Robert Arnold, Arthur Betsch, Santos Cepeda, Douglas Coleman, Harold Gonzalez, Lennell Howard, Elliot Hunt, Billy Little, Larry Moore, Robert Oakley, Emanual Ordine, Jr., Larry Pleasant, George Reed, Anthony Repetti, Cordell Robinson, William Rodriguez, Dennis Soares, Michael Thomas, and John Turrisi, on behalf of themselves and all others similarly situated, Appellees, v. Dominick SALAMACK, Superintendent, Bayview Correctional Facility, Captain Hylan T. Sperbeck, Correction Officer, Bayview Correctional Facility and Benjamin Ward, Commissioner, Department of Correctional Services, State of New York, Appellants. ocket 77-2141.
Docket NumberNo. 578,D
Decision Date06 April 1978

Page 393

572 F.2d 393
James TRACY, William Adams, Robert Arnold, Arthur Betsch,
Santos Cepeda, Douglas Coleman, Harold Gonzalez, Lennell
Howard, Elliot Hunt, Billy Little, Larry Moore, Robert
Oakley, Emanual Ordine, Jr., Larry Pleasant, George Reed,
Anthony Repetti, Cordell Robinson, William Rodriguez, Dennis
Soares, Michael Thomas, and John Turrisi, on behalf of
themselves and all others similarly situated, Appellees,
v.
Dominick SALAMACK, Superintendent, Bayview Correctional
Facility, Captain Hylan T. Sperbeck, Correction Officer,
Bayview Correctional Facility and Benjamin Ward,
Commissioner, Department of Correctional Services, State of
New York, Appellants.
No. 578, Docket 77-2141.
United States Court of Appeals,
Second Circuit.
Argued Dec. 16, 1977.
Decided March 7, 1978.
As Amended April 6, 1978.

Page 394

Kevin J. McKay, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, Asst. Atty. Gen., New York City, of counsel), for appellants.

Susan N. Herman, Prisoners' Legal Services, New York City (Pierce Gerety, Jr., New York City, of counsel), for appellees.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS, District Judge. *

PER CURIAM:

This appeal is from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting appellees' motion for a preliminary injunction and ordering reinstatement of members of the plaintiff class 1 in the temporary release program instituted by the New York State correctional system in 1969, 2 Tracy v. Salamack, 440 F.Supp. 930 (S.D.N.Y. 1977) (mem.), and delineating the circumstances under which removal would be proper after a Due Process hearing. Tracy v. Salamack, 440 F.Supp. 930, No. 77 Civ. 3937 (S.D.N.Y., dated Nov. 7, 1977).

Under the statutory scheme in effect before September 1, 1977, any inmate within one year of eligibility for parole could apply for participation in the program. 3 Each of the 140 original members of the plaintiff class had received approval to participate in the program prior to August, 1977, and many were already doing so. The underlying statute was amended in July, 1977, effective September 1, 1977, (a) to provide that no person otherwise eligible 4 who is under sentence for certain violent crimes 5

Page 395

may participate in the program "without the written approval of the commissioner," and (b) to require the commissioner to "promulgate regulations" for the guidance of temporary release committees at each institution in effectuating the statutory mandate. 6 No such regulations were formulated. Nonetheless, in August, 1977, the Department of Correctional Services conducted a four-step screening process 7 of the 824 temporary release participants, resulting in removal of the 140 original members of appellees' class. 8 The inmates then brought this civil rights action and moved for a preliminary injunction requiring the Department to reinstate them and to grant them hearings before future changes in their status could be made.

Judge Lasker concluded that the Due Process Clause protects appellees against removal from the program without a prior hearing. He first found that appellees had suffered a "grievous loss" of a liberty interest by analogizing temporary release to other release programs which have been held to merit Due Process protection. 9 Tracy v.

Page 396

Salamack, supra, 440 F.Supp. at 933-34. Relying on these precedents, see note 9 supra, the statute, prior official policy and practice in administering the program, and the wording of the form agreement signed by all participants, the district court further held that appellees had an "entitlement" in the temporary release program. 10 Id. at 934-36.

Thus far, we agree with Judge Lasker's findings of fact and conclusions of law. We also agree that a preliminary injunction to maintain the status quo of appellees' eligibility and participation was warranted. However, we cannot agree with the constraints which the district court imposed on the Department's authority to revoke these participation rights.

Judge Lasker held that "because plaintiffs' entitlement . . . came into existence only after a security check at the time each plaintiff was originally admitted to the program," Tracy v. Salamack, supra, No. 77 Civ. 3937, 440 F.Supp. at 936,

none of the members of the plaintiff class may be removed from the temporary release program on allegations that their participation would constitute a threat to the security of the community except upon a showing, in accordance with due process, that a change of facts has occurred since the original determination permitting the inmate's participation, or the discovery by the defendants of new relevant facts which, although they existed at the time of the original decision, were unknown to the defendants through no fault of their own and through no lack of reasonable diligence on their part. As to any inmate alleged to be a security risk under such circumstances, he shall be restored to the temporary release program unless within twenty days from the filing of this order the charges against him are heard and determined in accordance with the requirements for hearings at correctional institutions set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Id. at 936.

We think this order goes too far by in effect prohibiting the State from changing its law regarding the eligibility of inmates already participating in the program. 11 An "entitlement" rooted in state law may well require an individualized procedural due...

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48 practice notes
  • Drayton v. McCall, No. 1089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 2, 1978
    ...an inmate's interest in accurate factual assessment prior to his removal from New York's temporary release program. Tracy v. Salamack, 572 F.2d 393, 397 & n.15 (2d Cir. 1978) (per curiam). Here we deal with an incarcerated prisoner who has already been granted parole subject to a future......
  • Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, No. 78-201
    • United States
    • United States Supreme Court
    • May 29, 1979
    ...on such transfers rather than on particular statutory language. 427 U.S., at 225-228, 96 S.Ct., at 2538-2540. See Tracy v. Salamack, 572 F.2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291, 1292 (CA1 1977). 6. See, e. g., Willner v. Committee on Character and ......
  • Romer v. Morgenthau, No. 99 Civ. 9052(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2000
    ...See Sandin, 515 U.S. 472 at 480-82, 115 S.Ct. 2293, 132 L.Ed.2d 418. 3. In particular, the continued validity of both Tracy v. Salamack, 572 F.2d 393, 395 (2d Cir.1978) and Cardaropoli v. Norton, 523 F.2d 990 (2d Cir.1975), was cast into doubt by subsequent precedent. The Dugar court, 613 F......
  • Quartararo v. Catterson, No. 93-CV-4059 (JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 25, 1996
    ...Under a pre-Sandin analysis, the answer to this question would be clear; for the Second Circuit Court of Appeals, in Tracy v. Salamack, 572 F.2d 393, 396 (2d Cir.1978) (per curiam), held that the State of New York, in establishing the Temporary Release Program, created a liberty interest th......
  • Request a trial to view additional results
48 cases
  • Drayton v. McCall, No. 1089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 2, 1978
    ...an inmate's interest in accurate factual assessment prior to his removal from New York's temporary release program. Tracy v. Salamack, 572 F.2d 393, 397 & n.15 (2d Cir. 1978) (per curiam). Here we deal with an incarcerated prisoner who has already been granted parole subject to a future rel......
  • Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, No. 78-201
    • United States
    • United States Supreme Court
    • May 29, 1979
    ...on such transfers rather than on particular statutory language. 427 U.S., at 225-228, 96 S.Ct., at 2538-2540. See Tracy v. Salamack, 572 F.2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291, 1292 (CA1 1977). 6. See, e. g., Willner v. Committee on Character and ......
  • Quartararo v. Catterson, No. 93-CV-4059 (JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 25, 1996
    ...Under a pre-Sandin analysis, the answer to this question would be clear; for the Second Circuit Court of Appeals, in Tracy v. Salamack, 572 F.2d 393, 396 (2d Cir.1978) (per curiam), held that the State of New York, in establishing the Temporary Release Program, created a liberty interest th......
  • Roucchio v. Coughlin, No. 94-CV-4313 (JS).
    • United States
    • U.S. District Court — Eastern District of New York
    • April 15, 1996
    ...In reaching its determination, the Court observes that prior to Sandin, the Second Circuit Court of Appeals, in Tracy v. Salamack, 572 F.2d 393, 396 (2d Cir.1978) (per curiam), held that the State of New York, in establishing the Temporary Release Program existing at that time, created a li......
  • Request a trial to view additional results

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