Opinion
January 24, 1980
Appeal from the Wyoming Supreme Court.
Present — Cardamone, J.P., Simons, Callahan, Doerr and Moule, JJ.
Judgment affirmed, without costs. All concur, except Simons and Moule, JJ., who dissent and vote to reverse the judgment and dismiss the petition, in the following memorandum.
Petitioner commenced an article 78 proceeding to obtain an order expunging from his permanent prison file a memorandum which states that he was involved in an alleged escape plan while an inmate at the Ossining Correctional Facility. Petitioner asserts that the memorandum caused his reassignment from a job in the hospital at the Clinton Correctional Facility to a job in a more secure area and that he has never had an opportunity to challenge the allegation contained in the memorandum. The court ordered the Department of Correctional Services to commence disciplinary proceedings concerning the alleged escape plan within 90 days or, failing to do so, not to consider the memorandum upon applications by petitioner for transfer, job assignments, temporary release or parole. Prisoners may not be penalized for prison misconduct without notice and a hearing on the charges (Wolff v McDonnell, 418 U.S. 539; Matter of Amato v Ward, 41 N.Y.2d 469). For example, a prisoner may not be denied good behavior allowances on the basis of misconduct without being afforded adequate due process protections (Matter of Amato v Ward, supra), and a prisoner may not be placed in segregated confinement without a hearing (Wilkinson v Skinner, 34 N.Y.2d 53). However, lawful incarceration results in a diminution of many of the rights and privileges of ordinary citizens (Wolff v McDonnell, supra; Price v Johnston, 334 U.S. 266; Cooper v Lombard, 64 A.D.2d 130). Thus, prisoners have no right to particular security classifications or program or job assignments (see Montanye v Haymes, 427 U.S. 236). In addition, correction officials have wide discretion in matters of prison administration, institutional security and transfer of prisoners (see, e.g., Meachum v Fano, 427 U.S. 215, 228-229; Wilkinson v Skinner, supra). Petitioner's transfer from a job in the prison hospital to one in a more secure area of the prison is not a sufficient penalty to entitle him to a hearing (Matter of Duval v Smith, 50 A.D.2d 1066). Nor is the presence of the memorandum in petitioner's file sufficient justification for the relief which the court ordered. Its mere presence does not result in the deprivation of a protected right sufficient to invoke due process (Martinez v Oswald, 425 F. Supp. 112; Matter of Duval v Smith, supra).