Williams v. Ward, No. 457
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | Before FRIENDLY, HAYS and MULLIGAN; FRIENDLY; HAYS |
| Citation | 556 F.2d 1143 |
| Parties | Michael WILLIAMS, Plaintiff-Appellee, v. Benjamin WARD, Commissioner of the New York State Department of Correctional Services and Edward R. Hammock, Chairman, New York State Board of Parole, Defendants-Appellants. ocket 76-2105. |
| Decision Date | 26 May 1977 |
| Docket Number | No. 457,D |
Page 1143
v.
Benjamin WARD, Commissioner of the New York State Department
of Correctional Services and Edward R. Hammock,
Chairman, New York State Board of
Parole, Defendants-Appellants.
Second Circuit.
Decided May 26, 1977.
Page 1145
Stephen M. Latimer, New York City (Michael C. Fahey, and Bronx Legal Services Corp., New York City, of counsel), for plaintiff-appellee.
Robert S. Hammer, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., State of N. Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellants.
Before FRIENDLY, HAYS and MULLIGAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal from an order of the District Court for the Southern District of New York raises a question of the extent to which the due process clause of the Fourteenth Amendment confers upon a prison inmate eligible for parole consideration the right to inspect his institutional files, where those may be consulted by the parole board in deciding on his parole. Related questions already have been faced, in varying form and with varying result, by two previous panels of this court. In the particular circumstances of this case, we find that disclosure of the contents of the files was not constitutionally required.
Plaintiff-appellee Michael Williams is a prisoner in the custody of the New York State Department of Correctional Services. He was indicted in 1964 for two counts of murder in the first degree and one count of robbery in the first degree, pleaded guilty to two counts of second degree murder, and was sentenced on May 27, 1964 to concurrent terms of twenty years to life. After resentencing in 1969 for purposes of permitting an appeal, his conviction was affirmed without opinion by the Appellate Division, 319 N.Y.S.2d 595 (App.Div. 2d Dept. 1971), with leave to appeal to the New York Court of Appeals denied. Although under earlier New York law Williams would not have been eligible for parole consideration until completion of his minimum term, New York Correction Law § 212 (McKinney 1968), he became eligible for parole consideration on September 1, 1975 by virtue of a statutory reduction in minimum sentences, L.1975, c. 343, § 1, New York Correction Law § 212-a (McKinney 1976), and was accorded an appearance before the Parole Board on September 11, 1975.
In April 1975, apparently in the course of his unsuccessful civil rights suit in the Eastern District of New York against two police officers who had questioned him in connection with the murders, Williams v. Gamble, Nos. 69-C-1253, 70-C-155, appeal dismissed pursuant to Rule 0.18(7), No. 75-2075 (2 Cir. 1976), Williams learned that his prison files contained two letters whose contents he considered prejudicial. Those letters stemmed from an incident initiated by Williams himself: In April 1971 Williams had written a letter to Justice John E. Cone of the New York Supreme Court, who had sentenced Williams in 1964 and resentenced him in 1969, containing the text set out in the margin. 1 Copies of this letter
Page 1146
also were sent by Williams to John Hughes, Chairman of the State Senate Judiciary Committee, and Thomas McCoy of the New York State Judicial Conference. On May 3, 1971, at the request of Justice Cone, Charles Fastov, who was Chief Probation Officer of the Second Judicial District, New York Supreme Court, wrote to Russell Oswald, the Commissioner of Correctional Services, and to Paul J. Regan, then Chairman of the New York State Board of Parole, enclosing a copy of Williams' letter and stating that "Williams has a history of mental disturbance and the attached letter points to the probable need for an updated psychiatric review of his condition." In addition, on August 5, 1974, Justice Cone wrote to Oliver Tweedy of the Executive Clemency Bureau, State Department of Correctional Services, enclosing copies of Williams' letter and Fastov's 1971 letter to Commissioner Oswald, and stating that,I do not under any circumstances recommend commutation of sentence for Michael Williams, as he has a history of mental disturbance.
In my opinion he is dangerous. Herewith is a photocopy of a threatening letter addressed to me from Michael Williams . . . .
When he learned that the letters from Fastov and Justice Cone were in existence, Williams apparently wrote to the Parole Board Chairman and the Commissioner of Correctional Services stating that the information in the letters concerning a history of mental disturbance was false, and asking that the letters be removed from the prison and parole board files and that no reference be made to the information when he was considered for parole or for temporary release programs. When, allegedly, no response was received to these letters, Williams filed the instant suit pro se on August 6, 1975, under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(4), claiming that he had been denied due process in not being afforded copies of the letters and not being given the opportunity to answer the allegations. As relief, he asked (1) that the court order defendants to remove "the false information" (presumably, the two letters) from his institutional files and (2) that the Department of Correctional Services and the New York Parole Board "be enjoined from accepting any such recommendations and other informations from the judges, prosecutors, and other outside sources without first supplying the plaintiff with a copy thereof and affording him 14 days to answer the charges in the information and recommendations and respond in writing."
A month later plaintiff had his hearing before the Parole Board, at which board member Pierro questioned Williams concerning his attitude toward his past criminal offense and past drinking problem, his failure to participate in the Alcoholics Anonymous or group therapy programs in the prison, and his decision not to pursue a high school equivalency diploma or college courses even though he had no employment record before his arrest and expressed a desire to work as a para-legal upon his parole release.
The Board denied parole, continuing Williams in custody until September 1977 and gave the following written statement of reasons for the denial:
The violent and vicious nature of the crimes.
Institutional reports indicate that you may benefit from the treatment which is available to you at this institution and in which you have not participated and which we feel is necessary for your rehabilitation.
There is no indication that you have utilized available programs to prepare yourself for parole release at this time.
Williams subsequently wrote to the Acting Chairman of the Parole Board, Frank Caldwell, asking for reconsideration of the denial;
Page 1147
Caldwell replied on October 28, 1975 thatI feel that the decision rendered by the Parole Board was appropriate based on the seriousness of the crime for which you were convicted.
and in response to a second letter from Williams, wrote on November 21, 1975 that
I wish to again indicate to you that the decision rendered by the Parole Board in denying you Parole release was appropriate (A)s I indicated to you the Parole Board not only considers a person's past pattern of criminal behavior, but also his institutional adjustment and future potentials in the community. Based on all of the above the reviewing commissioners felt that if released you would not remain at liberty without violating the law and that your release would not be compatible with the welfare of society.
After the parole hearing, Williams also applied for participation in a work release program at the Eastern Correctional Facility in Napanoch, New York, where he was then confined. This application was denied on November 6, 1975 by the Temporary Release Committee at the prison on the ground that Williams had too much time left before his next scheduled parole hearing. 2 A subsequent application for work release made in December 1975 was denied, according to plaintiff's affidavit, on the grounds of the "Assaultive nature of present offenses" and his "Lack of meaningful work and educational program", although Williams states he believes the "real basis for the denial . . . is because of the false information in his files." (Plaintiff's March 30, 1976 affidavit of facts at 2, 3).
Finally, Williams applied for participation in the prison's furlough program for home visits in July 1975 and November 1975; these applications were denied each time, with "Nature of Offense" given as the reason.
In the meantime, Williams' Southern District action began to change its focus to the September 1975 denial of parole. After securing an extension of time, defendants moved on November 12, 1975 to dismiss the complaint for failure to state a claim on which relief may be granted, Fed.R.Civ.P. 12(b)(6); the district court, characterizing plaintiff's claim as "that his reputation has been hurt and his eligibility for parole and other privileges has been severely limited by the ex parte inclusion in his institutional files of certain material classifying him as mentally disturbed, of which he was given no prior notice or opportunity to contest its factual basis," denied the motion to dismiss on the basis of Cardaropoli v. Norton, 523 F.2d 990 (2 Cir. 1975). On January 5, 1976, Williams moved for summary judgment, Fed.R.Civ.P. 56, claiming that the September 11 parole hearing had been held before he had opportunity to learn that he has been "classified" as mentally disturbed, thus depriving him of the opportunity to contest that characterization, and requesting for the first time an order to show cause why he should not be granted a new parole hearing or, in the alternative, be released on parole. The district court, recognizing that a claim for immediate release sounds...
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