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ALTIMUS v. MANHOOD FOUND.

December 21, 1976

Robert William ALTIMUS, Plaintiff,
v.
MANHOOD FOUNDATION, INC., et al., Defendants



The opinion of the court was delivered by: LASKER

LASKER, District Judge.

 In 1973 Richard Altimus, a federal prisoner incarcerated at Sandstone, brought this action for injunctive and declaratory relief, and for damages, against members of the United States Board of Parole and the federal Bureau of Prisons, claiming that his application for parole was wrongfully denied without adequate procedural protections. Mr. Altimus also sued several private corporations, individuals and religious groups, claiming that they "deliberately and wilfully" sought to "prevent plaintiff from securing an effective parole plan," by virtue of their activities in apparently providing him with a parole release plan.

 Mr. Altimus first applied for parole in January of 1972, at which time institutional staff indicated to him that his parole release plans would be considered too vague by the parole board; he withdrew his application and, after completing arrangements with the private defendants, reactivated the application in June, 1972. On August 10th, he was advised that he would have a hearing before a parole board hearing examiner (Mr. Vodvarka) on August 14th. Following this hearing, the examiner recommended to the Parole Board that Mr. Altimus be denied parole, but that his case be reviewed by a Progress Report in April, 1973. Without recording the reasons for its action, the Board (acting through two of its members) simply denied parole and "[continued] to expiration" meaning, no anticipated further review. Mr. Altimus was mandatorily released from confinement in October, 1973. On October 7, 1974, (opinion filed October 8) the court denied plaintiff's motion for partial summary judgment and for a declaratory judgment that the Board's action in denying him parole violated his Fifth Amendment due process rights, on the grounds that the claims for relief had been mooted by his release from prison and by subsequent development of administration regulations which afforded the sought for relief.

 Altimus now seeks partial summary judgment against the federal defendants on the liability aspect of his claim for damages, and also seeks to reargue the court's earlier decision of October 8, 1974. The federal defendants move to dismiss for failure to state a cause of action, failure to state a claim upon which relief can be granted, and lack of subject matter jurisdiction. They are joined by the private defendants, whose previous motion to dismiss for lack of jurisdiction and failure to state a claim had been denied on January 28, 1974 without prejudice to renewal after discovery was had.

 I. Plaintiff's Motion to Reargue

 Plaintiff's motion to reargue the decision of October 8, 1974 is denied. Plaintiff does not point to any legal authority or factual material which was previously overlooked but argues merely that declaratory relief is a necessary predicate to vindication of his claim for damages which is still before this court. *fn1" This is not a function of the Declaratory Judgment Act, and, for the reasons outlined in the earlier opinion and for other reasons which will appear below, the motion to reargue is denied. *fn2" See Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975) (per curiam).

 II. Plaintiff's Motion for Partial Summary Judgment; Federal Defendants' Motion to Dismiss

 Plaintiff claims, in essence, that the federal defendants (1) violated his constitutional right to procedural due process by inter alia, failing to provide him with reasons for his parole denial, and (2) violated his rights under the federal Administrative Procedure Act by not affording reasons for his parole denial. (Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Motion to Dismiss, April 29, 1976 at 2-3) Since it is conceded that plaintiff was never informed of the reasons for his parole denial, plaintiff claims to be entitled to summary judgment on the question of liability.

 It is beyond dispute in this circuit that a prisoner has a due process right to be informed of the reasons for his parole denial. United States ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole, 500 F.2d 925 (2d Cir.) vacate as moot, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974); Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975). The necessity of this constitutional requirement is poignantly illuminated by the instant case: Mr. Altimus, who had gone to great lengths to prepare a parole release plan which he thought would be acceptable to the Board, and who participated in rehabilitative programs at Sandstone and believed himself to be ready for parole, was denied parole. Despite repeated inquiries by himself, members of Congress, and other "free world" persons desirous of aiding him in securing parole release, he was never informed of the reasons why he was denied parole. The only response ever received to these inquiries was an iteration of the general factors considered by the Board in reaching its decisions. Indeed, the parole file on Mr. Altimus, made available to him in the course of this litigation, reveals that no reasons were ever recorded for the Board of Parole's actions in his case.

 We are compelled to agree with Mr. Altimus that the Board's response to his repeated efforts to find out the reasons for his parole denial and to his effort to seek reconsideration was "bureaucratic and oblique" (Altimus Affidavit of February 18, 1974, para. 28); "the Board refused even to tell me why they would not tell me the reasons for my parole turndown." (Altimus Affidavit supra, para. 30) Moreover, his analysis of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), has been adopted by many courts which have held that there is simply no legitimate state interest in not providing prisoners with the reasons for parole denial, particularly since "the prospect of parole [cannot] be a positive force in my rehabilitation as a prisoner if the reasons for denying me parole are hidden. What can I do? How can I change?" (Altimus Affidavit, para. 32) See United States ex rel. Harrison v. Pace, 357 F. Supp. 354 (E.D.Pa.1973); Childs v. U.S. Bd. of Parole, 371 F. Supp. 1246 (D.C.1973), aff'd in part, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974); Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974), vacated as moot, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975).

 However, because the only presently available relief is an award of damages, the public official defendants may interpose as a complete defense their good faith reliance on existing procedures which they reasonably believed to have been constitutional. See Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Economou v. U.S. Dept. of Agriculture, 535 F.2d 688 (2d Cir. 1976). On this defense (which has been raised), they are entitled to prevail as a matter of law and hence, the claim for damages is one on which relief cannot be granted and must be dismissed. F.R.Civ. Proc. 12.

 Government officials in the performance of their public duties are not "charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 1219, 18 L. Ed. 2d 288 (1967); McKinney v. DeBord, 324 F. Supp. 928 (E.D.Cal.1970). When a new constitutional rule under which a defendant is sued abruptly departs from the rule in effect at the time of the alleged deprivation of constitutional rights, the plaintiff, as a matter of law, can have no claim for damages. See Baxter v. Birkins, 311 F. Supp. 222, 225 (D.Colo.1970) (3-judge court); McKinney v. DeBoard, supra, 324 F. Supp. 928. Altimus was denied parole in September of 1972; he was mandatorily released from custody in October of 1973. During this entire time period, the prevailing rule in this circuit was that of Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970) cert. denied, 400 U.S. 1023, 91 S. Ct. 588, 27 L. Ed. 2d 635 (1971), which held that a prisoner seeking parole release had no interest entitled to due process protection in the grant or denial of parole; and that consequently, he was entitled to no procedural rights whatsoever: no right to reasons for denial, no right to be informed of the charges against him; no right to counsel, or to call or confront witnesses. This circuit did not change its position until 1974, in the Johnson case. That this change was an abrupt one, and one not necessarily dictated by the decision in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (which occurred two months before Altimus was denied parole) is indicated by the vigorous dissent of Judge Hays in the Johnson case, and the subsequent diversity of opinion on this subject in the various federal courts of appeal. Compare Childs v. U.S. Bd. of Parole, supra, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974); Bradford v. Weinstein, supra, 519 F.2d 728 (4th Cir. 1974); with Bell v. Kentucky Bd. of Parole, 510 F.2d 972 (6th Cir.), remanded for consideration of mootness sub nom. Scott v. Kentucky Bd. of Parole, 429 U.S. 60, 97 S. Ct. 342, 50 L. Ed. 2d 218 (1976). Were Altimus claiming that he had been denied reasons after the Johnson decision, his claim would stand on a different footing, and could certainly not be dismissed as a matter of law; however, the defendants' failure to comply with constitutional requirements not enunciated until after the action complained of occurred and in fact expressly rejected just two years beforehand cannot be a basis for liability in damages, whether they are sued individually or in their official capacities.

 Similar reasoning requires dismissal of any claim for damages based on a failure to follow the requirements of the Administrative Procedure Act. Whatever the courts may finally decide about its applicability to the federal parole board, our research indicates that up through the time in question here every court which had considered the question found that the APA did not apply to the federal Parole Board. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (D.C.Cir.) (en banc), cert. denied, 375 U.S. 957, 84 S. Ct. 446, 11 L. Ed. 2d 315 (1963); Hiatt v. Compagna, 178 F.2d 42, 44-45 (5th Cir. 1949) (dictum), aff'd by equally divided court, 340 U.S. 880, 71 S. Ct. 192, 95 L. Ed. 639 (1950). Cf. King v. United States, 492 F.2d 1337 (7th Cir. 1974); Mower v. Britton, 504 F.2d 396, 399 (10th Cir. 1974) (holding that APA requirement of reasons for parole denial did apply to the federal board was not retroactively applicable).

 Plaintiff argues that the federal defendants were in fact using a form on which other prisoners were advised of reasons for their parole denial at the time he was denied parole, that this in turn manifests the Board's awareness of the constitutional requirements that reasons be provided, or (as Professor Davis argued in 1970) of the applicability of § 555(e) of the APA, which suggest that there is at least an issue of fact as to their good faith. However, plaintiff's Exhibit F, submitted to support this factual contention, is an undated form for recording reasons for parole action and parole denial allegedly used by the Board. Moreover, plaintiff's Exhibit L confirms the government's position that reasons for parole denial were given on an experimental basis beginning in late 1972 to prisoners at five selected federal institutions (not including Sandstone, where Mr. Altimus was incarcerated). Additional confirmation that the giving of reasons was in an experimental and limited stage at that time is found in Battle v. Norton, 365 F. Supp. 925, 926 (D.Conn.1973). There, Judge Newman found that the Board began an experimental program of supplying reasons for parole denial in December, 1972 at the Board's Northeast Region institutions; because the program was experimental, Judge Newman refused to hold that the Board's failure to give all reasons for its decision (in September of 1973) ...


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