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October 15, 1977

DOMINICK SALAMACK, Superintendent, Bayview Correctional Facility', CAPTAIN HYLAN T. SPERBECK, Correction Officer, Bayview Correctional Facility, BENJAMIN WARD, Commissioner, Department of Correctional Services, State of New York, Defendants

The opinion of the court was delivered by: LASKER


 In 1969, the New York State correctional system instituted a Temporary Release Program *fn1" designed to help inmates eligible for parole to reintegrate into society. An inmate who is eligible for parole within one year may apply to the program. If accepted, he is assigned to a work release facility from which he may seek either employment or schooling. In July of 1977, in reaction to incidents which disquieted the legislature and the public, the New York legislature amended the Temporary Release Law. The amendments specify that no applicants for the program convicted of any of three particular offenses may participate in the program without the written approval of the Commissioner of Correctional Services. *fn2" The effective date of the amended statute was September 1, 1977. Nevertheless, in August of 1977 the Department of Correctional Services, without having first promulgated regulations as required by the statute, engaged in a four step review procedure of 824 temporary release participants and removed 140 from the program. *fn3" The 140 inmates have brought this civil rights action and move for a preliminary injunction requiring the Department to reinstate them and to grant them hearings complete with the requirements of Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) before any future change in their status. *fn4" For the reasons stated below, the injunction is granted.


 A preliminary injunction may be granted only upon "a clear showing of either (1) probable success on the merits and possible irreparable injury or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief." Triebwasser & Katz v. American Tel. & Tel., 535 F.2d 1356, 1358 (2d Cir. 1976); Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973) (emphasis in original). There is no doubt that the balance of hardships in this case tips decisively in favor of the participants in the temporary release program. While the Department of Correctional Services would of course be confronted with a significant administrative burden if pre-revocation hearings are required in the case of these plaintiffs, *fn5" that hardship cannot be equated with the plaintiffs' continuing loss of the substantial freedom and range of opportunity which they enjoyed before the August pullback, and of which they have been deprived not because of fault but because of a restructuring of the statute. An injunction may not be granted, however, unless plaintiffs also raise questions which are sufficiently serious to create "a fair ground for litigation." This condition requires analysis of the merits of their case.


 Plaintiffs argue that the Due Process Clause of the Fourteenth Amendment protects them against removal from the temporary release program without a prior hearing. Two factors govern the determination whether due process calls for a hearing: whether plaintiffs have suffered a "grievous loss" of a liberty or property interest, Morrissey v. Brewer, supra, 408 U.S. at 481; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 95 L. Ed. 817, 71 S. Ct. 624 (1951) (Frankfurter, Jr., concurring), and whether they have an "entitlement" to this liberty or property interest arising out of federal or state law or practice. Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976).

 A. Grievous Loss

 Plaintiffs analogize removal from a temporary release program to parole revocation and to loss of conditional release rights, which are well-recognized to constitute grievous losses of liberty, meriting due process protection under the Fourteenth Amendment. Morrissey v. Brewer, supra, 408 U.S. 471; United States ex rel. Bey v. Connecticut, 443 F.2d 1079 (2d Cir. 1971); Zurak v. Regan, 550 F.2d 86 (2d Cir. 1977). The argument runs that, like parolees, temporary release participants enjoy a form of conditional liberty: they may spend up to fourteen hours a day outside prison, participating in employment or schooling. Indeed, the very purpose of temporary release is to lessen the shock of returning to society by offering much of the freedom of parole. While the temporary release participant, unlike a parolee, must normally return to his work release facility at night, even this distinction is not overwhelming since overnight and weekend furloughs are commonly available. Plaintiffs also compare their loss to impairment of the interest in conditional release, which was held in Zurak v. Regan, supra, 550 F.2d 86, to require due process protection. Zurak and the parole revocation cases, plaintiffs argue, establish that a broad range of interests in conditional liberty are entitled to the safeguards of the Fourteenth Amendment.

 The comparison between these forms of conditional freedom is persuasive. However, plaintiffs are not limited to analogy in establishing that the magnitude of harm resulting from loss of temporary release status is enough to invoke due process. This Circuit has already held that inability even to commence participation in such a program works a grievous loss. In Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975), an inmate contested his classification, without formal notice or explanation, as a special offender, a classification which made him ineligible to apply for certain rehabilitative programs, including work release. The Court of Appeals held that such ineligibilities constituted a grievous loss requiring at least the basic elements of due process. This decision finds recent support in the Seventh Circuit's holding in Holmes v. United States Board of Parole, 541 F.2d 1243 (7th Cir. 1976), in which the classification of an inmate as a special offender without a prior hearing was invalidated on the reasoning of Cardaropoli. The Holmes court held further that the Supreme Court's ruling in Meachum, supra, 427 U.S. 215 (which followed Cardaropoli by a year) did not require a different disposition.

 B. Entitlement

 In Meachum v. Fano, supra, 427 U.S. 215, the Supreme Court held that sufferance of a grievous loss does not, alone, compel the application of the Due Process Clause, but that some right or expectation rooted in state law must protect an individual against such a loss. Fano was a prisoner who sued to invalidate his transfer from a medium to a maximum security prison without a due process hearing. Granting that Fano's transfer might constitute a grievous loss, the Court held that he could nevertheless be transferred without a hearing because no state statute or practice had endowed him with an entitlement to remain in a particular type of penal facility or not to be transferred without a hearing.

 Relying on Meachum, the state argues that, even if removal from the temporary release program is determined to be a grievous loss, the Due Process Clause is inapplicable since no constitutional or statutory right exists to participate in the program. In particular, the state points to language in both ยง 853(8) of the Correction Law which governs the temporary release program *fn6" and the form agreement signed by each enrolling participant which specifies that participation is a privilege which may be revoked at any time. Plaintiffs respond that whether an entitlement has been created must be determined by looking to the reasonable expectation of the inmate based on a variety of factors, including not only the statute and regulations, but also history and prior practice. *fn7" Two factors in this case, the wording of the form agreement and official policy concerning removal, persuade us that a reasonable person, once accepted, would expect to be allowed to continue in the program unless by his own conduct he gave cause for removal.

 The state's dependence on the statutory language is unpersuasive if only because it is unreasonable to assume, or to believe, that a prisoner will know the language of a statute -- even of a statute dealing with a subject so dear to his heart as temporary release, and even in this day of jail-house lawyers. Nor is this a sector of the law in which the principle of constructive knowledge is fairly applicable.

 The state is on stronger ground in arguing that a prisoner is chargeable with knowledge of the wording in the agreement he signs and of prison procedure governing revocation of temporary release status. The wording of the program memorandum, signed by each participant, states as follows:


"I accept the foregoing program and agree to be bound by the terms and conditions thereof. I understand that I will be under the supervision of the state department of correctional services while I am away from the premises of the institution and I agree to comply with the instructions of any parole officer or other employee of the department assigned to supervise me. I understand that my participation in the program is a privilege which may be revoked at any time, and that if I violate any provision of the program I may be taken into custody by any peace officers and I will be subject to disciplinary procedures. (emphasis added)

 It is true that the agreement read literally provides that "participation in the program is a privilege which may be revoked at any time." However, literalness is not enough. A more natural reading of the agreement when read in context, as it must be, is that removal is not discretionary but occurs only following one of the specific acts listed earlier in the agreement, that is rejecting departmental supervision, disobeying the instructions of prison officials, or violating some other provision of the program. Moreover, the practice of the state since initiation of the program has actually been to revoke temporary release status only upon a showing of misbehavior. (Plaintiffs' Memorandum at 20-21) These factors establish, and we find that, a participant did have a reasonable expectation, arising from the practice of the state itself, of a right to continued participation in the program so long as he did not commit an offense within the letter or spirit of the agreement and that he cannot be deprived of this entitlement without appropriate and due process. Indeed, as Commissioner Lewis L. Douglass himself stated to the court with commendable candor (at argument of this motion on the record), prior to the statute's amendment it had been the expectation of the Department as well as the inmates that participants would continue in the program absent a specific violation.

 This analysis is supported by the recent decision in Holmes v. United States Board of Parole, supra, 541 F.2d 1243, which held after Meachum, that due process hearing rights do attach to classification as a special offender. The Holmes court reconciled its holding with Meachum on the ground that established prison policy created an entitlement to apply for rehabilitative programs:


"While there may exist no right to furlough or parole as there exists no right to incarceration in a particular prison, the extension to prisoners by established prison policy of the opportunities of parole and furlough, constitutes a cognizable benefit to prisoners. No such cognizable benefit was bestowed upon the prisoners in Meachum or Montayne and we do not read those cases to eliminate due process where cognizable benefits have been established by prison policy . . ." (emphasis added).


 In sum, we find that revocation of participation in the temporary release program constitutes grievous loss in regard to an entitlement and therefore may not occur without a hearing in accordance with appropriate and due process. It remains to determine the scope of due process appropriate in the circumstances. Morrissey v. Brewer, supra, 408 U.S. at 481; Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). That question will be disposed of hereafter upon further conference with the litigants.

 In the meantime, the defendants are ordered to reinstate the members of the plaintiff class (other than those persons alleged to have been convicted of escaping or absconding or whose next Parole Board appearance will occur later than September 2, 1978) to the temporary release program, and the defendants, their employees and agents are enjoined from removing such persons from the temporary release program except under the same terms and conditions upon which removals were made immediately prior to the removal of the members of the plaintiff class in August, 1977.

 The effect of this order is stayed until 5:30 P.M. October 19, 1977.


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