Bratton v. City of Detroit Memorandum for the United States as Amicus Curiae

    ^ e v -

Mte 5 Un i t e d  s t a t e s  c o u r t  o f  a p p e a l s

P oe the Second Circuit

' No. 659—September Term, 1976.

(Argued March 14, 1977 Decided July 28, 1977.)

Docket No. 76-7517

E rnest Coralluzzo.
Plaintiff-Appellee,

V.

New Y ork State P arole B oard and Members oe the New 
Y ork State Parole B oard, individually and in their 
official capacities,

Appeal from a judgment entered in the Western District 
of New York, John T. Curtin, Chief Judge, 420 P. Supp. 
592, ordering the New York State Parole Board to grant 
a state prisoner a new minimum period of imprisonment 
(M PI) hearing; to provide him with a statement of rea­
sons for its determination; and to grant him access to the 
evidence in his file.

Affirmed.

Hon. Oscar H. Davis, Judge, United States Court o f Claims, sitting 
by designation.

Defendants-Appellants.

B e f o r e  :
F einberg and T imbers, Circuit Judges, 

and Davis*, Court of Claims Judge.

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M a r k  C. R u t z i c k , Deputy Asst. Atty. Gen., New 
York, N.Y. (Louis J. Lefkowitz, Atty. Gen. 
of the State of New York, Samuel A. Hir- 
showitz, First Asst. Atty. Gen., and Kevin 
J. McKay, Deputy Asst. Atty. Gen., New 
York, N.Y., of counsel), for Defendants- 
Appellants.

P h i l i p  B. A b r a m o w i t z , Buffalo, N.Y. (Robert C. 
Macek, Buffalo, N.Y., of counsel), for Plain­
tiff-Appellee.

T i m b e r s , Circuit Judge:

This appeal by the New York State Parole Board and 
its members from an order entered in the Western District 
of New York, John T. Curtin, Chief Judge, 420 F. Supp. 
592, in a civil rights action by a state prisoner, presents for 
review under the due process clause of the Fourteenth 
Amendment another procedural aspect of the New York 
State parole system.

The procedure in question is the minimum period of im­
prisonment (MPI) hearing conducted pursuant to N.Y. 
Correction Law §212(2) (McKinney Supp. 1976).1 We hold 
that the New York MPI procedure is subject to the due 
process clause of the Fourteenth Amendment; that the 
New York State Parole Board must provide a statement of

1 We previously have held subject to the due process clause New York’s 
parole release procedure, see United States ex rel. Johnson v. Chairman, 
New York State Board of Parole, 500 F.2d 925 (2 Cir.), vacated as 
moot, 419 TT.S. 1015 (1974), and its procedure for conditional release o f 
prisoners serving sentences o f less than one year. See Zuralc v. Began,
550 F.2d 86 (2 Cir.), cert, denied,------ - TJ.S. ------- (1977), 45 TJ.S.L.W.
3841 (U.S. June 27, 1977). We also have clarified the requirements of 
the due process clause as applied to New York’s parole revocation proce­
dure. See United States ex rel. Carson v. Taylor, 540 F.2d 1156 (2 Cir. 
1976).

5068



reasons when it determines a MPI which exceeds the 
statutory minimum; and that under the particular circum­
stances of this case the prisoner must be granted access to 
the evidence in his file. We affirm.

I.

For those prisoners subject to it, the MPI hearing is the 
threshold stage of the parole release process. Depending 
on the individual case, it results either in immediate release 
or in the scheduling of consideration for parole at some 
fixed date in the future. Specifically, when there has been 
imposed on a prisoner an indeterminate sentence but no 
minimum term, N.Y. Correction Law §212(2) requires the 
New York State Parole Board to meet with him and review 
his file between nine and twelve months from the date he 
commenced Ms sentence. The Board then must “make a 
determination as to the minimum period of imprisonment 
to be served prior to parole consideration.” Under the stat­
ute, in the case of a prisoner sentenced to an indeterminate 
term with no minimum, the Board may provide for a min­
imum period of incarceration as short as one year. Should 
it decide to set a longer minimum period, it subsequently 
may reduce the period initially fixed.

A MPI hearing was held in the instant case pursuant to 
the statutory directive. On February 28, 1975, upon a plea 
of guilty in the Supreme Court, Bronx County, to one count 
of criminal sale of a dangerous drug in the second degree 
in violation of N.Y. Penal Law §220.35 (McKinney 1967), 
Ernest Coralluzzo was committed to the New York State 
Department of Corrections to serve an indeterminate sen­
tence not to exceed fifteen years. N.Y. Penal Law §70.00(1) 
(McKinney 1975). On January 15, 1976, he met with three 
members of the Parole Board at a MPI hearing. He re­
quested release upon the expiration of the one year statu-

5069



tory minimum. After the hearing he received a form notice 
from the Board informing him that his MPI had been set at 
five years and that he would appear before the Parole 
Board in February 1980 for release consideration. No rea­
sons for the decision were stated on the form notice. On 
March 3, 1976, twelve days after Coralluzzo commenced 
the instant action, the Board sent him a second notice which 
stated the following reasons for its decision:

“ The case history makes it reasonable to conclude that 
this man’s involvement in narcotics traffic is deep- 
rooted and high level. Permanent separation from 
drugs seems improbable for five years.”

Coralluzzo contends that his involvement in the narcotics 
traffic was far from “deep-rooted and high level” , and that 
the Board extrapolated this from erroneous statements in 
his prison file which asserted that he was involved with 
organized crime. We cannot say that this contention is al­
together speculative. Coralluzzo obtained from the state 
court at the time he was sentenced an order striking from 
his probation report an unsupported reference to his con­
nections with certain families of organized crime.

On February 20, 1976, Coralluzzo commenced the instant 
civil rights action pursuant to 42 TJ.S.C. §1983 (1970). He 
sought a declaratory judgment that the MPI procedure had 
violated his due process rights and an order directing the 
Board to reconsider his application for release in a man­
ner consonant with due process requirements, tie con­
tended, inter alia, that the Board improperly had failed to 
inform him of the reasons for its decision and the evidence 
upon which it had relied, and that the Board should have 
given him an opportunity to examine the evidence in his 
file. In an opinion filed August 6, 1976, as amended Octo­
ber 6, 1976, Chief Judge Curtin held that the Board’s post

5070



facto statement of reasons was an insufficient remedy for 
its initial due process violation; he ordered the Board 
to grant a new MPI hearing to he followed with a state­
ment of reasons; and he ordered the Board to “ disclose 
to the plaintiff all of the evidence, in unabridged form, 
which may be considered against him, absent a showing 
of good cause for keeping the information secret.” 420 F. 
Supp. 592, 596. From that order, the Board and its mem­
bers have appealed.

II.

In view of the claims of the parties and the decision of 
the district court, we are presented with the threshold 
question whether the prisoner has an interest at stake in 
the MPI determination sufficient to warrant due process 
protection. We hold that he does. This holding follows as 
a sequel to our decision in United States ex rel. Johnson v. 
Chairman, New York State Board of Parole, 500 F.2d 925 
(2 Cir.), vacated as moot, 419 TJ.S. 1015 (1974). There, in 
light of the Supreme Court’s decision applying the due 
process clause to parole revocation proceedings, Morrissey 
v. Brewer, 408 U.S. 471 (1972), we held that prospective 
parole entails a liberty interest commanding due process 
recognition. We stated, “Whether the immediate issue be 
release or revocation, the stakes are the same: conditional 
freedom versus incarceration.” 500 F.2d at 928. See
Zurak v. Regan, 550 F.2d 86 (2 Cir.), cert, denied,------ U.S.
------  (1977), 45 U.S.L.W. 3841 (U.S. June 27, 1977); cf.
Williams v. Ward, ------  F.2d —— , — — (2d Cir. 1977),
slip op. 3829, 3859-61 (May 27, 1977). The same interest 
in conditional freedom is at stake at a MPI hearing. As 
we said in Walker v. Oswald, 449 F.2d 481 (2 Cir. 1971), 
the MPI proceeding is “ an integral part of the parole re-

5071



lease process.” 2 Moreover the statutory scheme holds out 
the possibility of immediate release at the MPI stage. At 
least with respect to the preliminary question of the ap­
plicability of due process, the MPI and parole release de­
terminations are distinguishable in immaterial degree only, 
not in kind.

The Board contends that the MPI proceeding is ma­
terially different from the various parole release situations 
dealt with in our prior decisions because the prisoner, 
having no reason to expect “ imminent liberty” , presents 
only a “very tenuous” liberty interest. To be sure, the 
principal purpose of the §212(2) procedure is to facilitate 
the scheduling of a later parole release hearing and as an 
incident of that to establish a minimum period of im­
prisonment. Depending on the individual case that mini­
mum period may exceed one year. But we find no indica­
tion either in Johnson or in the Supreme Court’s recent 
decisions dealing with liberty interests of prisoners, see 
Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Wolff v. 
McDonnell, 418 U.S. 539, 555-58 (1974); Morrissey v. 
Brewer, 408 U.S. 471, 480-82 (1972), that a substantial pos­
sibility of immediate release is the sine qua non of a cog­
nizable liberty interest. To draw the constitutional line 
where the statistics show it to be more likely than not that 
the particular proceeding will result in immediate release 
could risk insulating from due process protection those 
stages of the parole release process which as a practical 
matter most seriously affect a prisoner’s liberty interest.

The MPI hearing strikes us as involving precisely this 
type of liberty interest. It results in an effective minimum 
period of imprisonment. The statute provides the prisoner 
with no practical method of obtaining reconsideration by

2 In WaXker, we equated parole release and M PI hearings for the pur­
pose of holding that no right to counsel attaches at a M PI hearing.

5072



the Board until the date it has set for the parole release 
hearing arrives. The MPI hearing therefore may be the 
crucial component in the series of judicial and administra­
tive decisions which combine to determine how long the 
prisoner remains incarcerated.

In view of these considerations, as -well as the statutory 
possibility of immediate release, we hold that the MPI 
hearing affects a prisoner’s liberty interest sufficient to 
warrant due process protection.3

III.

We turn next to the two questions here presented re­
garding MPI hearing due process requirements: (1) 
whether the prisoner must be given a statement of the rea­
sons for the Board’s decision, including the essential facts 
upon which the Board’s inferences are based; and (2) 
whether the prisoner must be given access to the evidence 
in his file.

(A) Statement of Reasons

The district court correctly required the Board to fur­
nish a statement of reasons and facts, 420 F. Supp. at 596, 
in compliance with the standards we enunciated in John­
son, supra, 500 F.2d at 934. Here, as in a parole release 
determination, the inmate has a strong interest in the pro­
ceeding and the burden on the Board is comparatively in­
significant. As we recently reemphasized in Zurab, supra, 
550 F.2d at 95, “ a requirement of a statement of reasons 
and facts is necessary to protect against arbitrary and 
capricious decisions or actions grounded upon impermis-

3 In so holding we reiterate the ruling o f the state court in Festus v. 
Megan, 50 App. Div. 2d 1084, 376 N.Y.S.2d 56 (4th Dept. 1975) (mem.).

5073



sible or erroneous considerations.” See also Haymes v. 
Regan, 525 F.2d 540, 544 (2 Cir. 1975).

The district court also correctly declined to accept the 
Board’s related statement of reasons, 420 F. Supp. at 595- 
96, as an effective cure for the constitutional deprivation 
committed by its initial act of summarily imposing a five 
year minimum period of incarceration. Johnson stressed 
that requiring a statement of reasons promotes thought on 
the decider’s part and compels him to cover the relevant 
points and to eschew irrelevancies. 500 F.2d at 931. The 
belated statement here, a verbatim repetition of an internal 
communication made by the Board at the time of its 
initial decision, does not comply with the standard of 
thorough consideration suggested in Johnson.

The statement furnished here would have been inade­
quate even if it had not been belated. True, it did set forth 
the grounds of the Board’s decision—that Coralluzzo was 
involved heavily in drug traffic. But applying here the 
standards we formulated in Johnson, supra, 500 F.2d at 
934, and Haymes, supra, 525 F.2d at 544, we hold that the 
Board was required to take the further step of stating the 
essential facts upon which it relied in reaching its decision. 
It is impossible to determine from the statement furnished 
by the Board whether it relied upon independent evidence 
of Coralluzzo’s connections with organized crime or upon 
activities on the part of Coralluzzo aside from such a con­
nections.4

4 This omission is particularly significant under the circumstances of 
this case. Coralluzzo obtained from the state court an order striking from 
his probation report an unsupported reference to his connections with 
organized crime. Any reliance by the Parole Board on this information 
in setting his M PI plainly was improper. Vet on the basis o f the state­
ment o f reasons given a reviewing court would not be in a position to 
determine whether the Board had relied on such information.

5074



(B) Access To Evidence In File

Applying the three-pronged test formulated by us in 
Haymes, supra, 525 F.2d at 543, the district court held that 
the Board must disclose to the prisoner the actual evidence 
in his file at all MPI hearings. 420 F. Supp. at 595 n.3, 
596-99.

In so holding the district court did not have the benefit 
of our subsequent decision in Holup v. Gates, 544 F.2d 82
(2 Cir. 1976), cert, d en ied ,------TJ.S. -------- - (1977), 45
U.S.L.W. 3634 (U.S. March 21, 1977). There the prisoner 
claimed that “ as a matter of constitutional law, any parole 
procedure which fails to allow every prospective parolee 
an inspection of his file in advance of that hearing . . .  is 
a violation of the Fourteenth Amendment. . . .” 544 F.2d 
at 85. Under our Haymes test resolution of that claim re­
quired a comparative assessment of the prisoner’s need to 
see the materials and the burden on the State of examining 
and redacting the file of each prisoner. But the record in 
Holup lacked the facts necessary for that assessment. 
There was no showing of the extent to which the State’s 
files were inaccurate or of the extent of materiality of any 
inaccuracies to the parole decision. As a result it was 
doubtful whether the disclosure demanded would be of any 
real use to the prisoners, 50% of whom received parole 
upon their first hearing in any event. Nor was it clear as 
to what administrative burden disclosure would place upon 
the State. Accordingly, since the record lacked “ sufficient 
hard evidence” to permit application of the due process 
balancing test, we remanded for further proceedings. 544 
F.2d at 87.

I f  we were disposed to formulate a general rule regard­
ing a prisoner’s access to evidence in his file in connection 
with MPI hearings, the record in the instant case would be 
no more suitable than that in Holup. Although Coralluzzo’s

5075



claim of a factual error in his own file might be probative, 
544 F.2d at 86, it is an unsatisfactory substitute for a 
showing of the frequency and gravity of the State’s past 
errors. As for the State’s interest, the instant record is 
barren of any hard facts regarding the burdens of under­
taking disclosure and of redacting sensitive information.

With respect to the particular plaintiff, Coralluzzo, how­
ever, this case is distinguishable from Iiolup. There, by the 
time the case reached us only one of a number of initial 
plaintiffs remained to present a justiciable controversy and 
that plaintiff had not had a parole hearing. In the mooted 
eases, parole decisions had been made after notice had been 
given of the evidence upon which the parole board intended 
to rely and there were no claims of prejudice from any al­
leged lack of disclosure. Here, by contrast, Coralluzzo as­
serts a substantial claim that the Board relied upon er­
roneous information which had been stricken from Ms 
probation report by a state court order.

Due process is flexible and calls for such procedural pro­
tections as the particular situation demands, see, e.g., 
Morrissey v. Brewer, supra, 408 TJ.S. at 481; it often is 
“ sensitive to what proves necessary in practice to a fair 
procedure. . . .”  (emphasis in original) Williams v. Ward,
- —  F .2d------, ------- (2 Cir. 1977), slip op. 3829. 3863 (May
27, 1977). Pursuant to this principle, we suggested in 
Williams that “there may . . .  be circumstances where an 
inmate plausibly contends that the only way he can demon­
strate reliance on an impermissible factor or can show a 
particular allegation concerning his record to be false . . . 
is by obtaining access to the detailed evidence in Ms file,
albeit in a redacted form.” ------  F,2d a t ------ , slip op. at
3864-65. We were not confronted with that situation in 
Williams because the prisoner there had not “ suffered any 
prejudice from the lack of access to his files.” Id. at 3865.

5076



He had known prior to his parole release hearing that his 
file contained the information which he later alleged to he 
false hut had taken no steps to rebut at the hearing before 
the Board the facts in the file. Moreover, the Board in­
cluded in its statement of reasons two substantial inde­
pendent grounds for its decision. Id. at 3865-66.

This is an entirely different case. Ooralluzzo has taken 
the initiative to purge his file of the information which he 
contends is false. The Board’s statement of reasons per­
mits the inference that the state court’s order to strike the 
reference to organized crime in the probation report was 
disregarded. As a result, Ooralluzzo presents a substantial 
factual contention regarding the basis for the Board’s de­
cision. Since disclosure of the file’s contents is the only way 
this issue can be resolved, see Williams, supra, slip op. at 
3864-65, Coralluzzo’s interest in disclosure is substantial 
enough to remove him from the undifferentiated class of 
prisoners subject to the MPI process and to grant him ac­
cess to his file. Moreover, there will be no prejudice to the 
state in accommodating Ooralluzzo. He apparently already 
has seen much of the material in his file. The Board, if 
necessary, can withhold material under the “good cause” 
exception in the district court’s order. 420 F. Supp. at 596, 
599.

We emphasize the narrow scope of our holding that the 
State must grant this prisoner access to Ms file. In applv- 
ing the exception suggested in Williams to the peculiar 
facts of this case, we note that those facts have come to 
light only because the State, in however defective a man­
ner, already has conducted a MPI proceeding. We join 
with Judge Friendly in Williams in “not wishfing] to 
prejudge the issues left for examination in the Holup re­
mand. . . .” ------F.2d a t ------- , slip op. at 3864.

Affirmed.

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