Revised August 27, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40288
DONALD LORRIN CRONN,
Plaintiff-Appellant,
VERSUS
JOHN BUFFINGTON, U.S. Parole Commission; SUSAN HAAS, U.S. Probation
Officer; WILLIAM FITZGERALD, U.S. Probation Officer; WADE E.
FRENCH, Chief Probation Officer; GARY GREY, U.S. Parole Commission;
RON BURKHART, Warden, FCI Fort Worth; KATHLEEN HAWK, Director, U.S.
Department of Federal Bureau of Prisons; EDWARD F. REILLY, JR.,
U.S. Parole Commission; U.S. PAROLE COMMISSION; FEDERAL BUREAU OF
PRISONS,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
August 26, 1998
Before WISDOM, KING and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Plaintiff-Appellant Donald Lorrin Cronn appeals the district
court’s grant of summary judgment to Defendants in this civil
rights action based on the court's conclusion that the Defendants
were entitled to qualified immunity. For the reasons that follow,
we affirm.
I.
Donald Lorrin Cronn (“Cronn”) was sentenced in November of
1982 to seven years confinement and five years probation for
conspiracy, wire fraud, and mail fraud, pursuant to 18 U.S.C.
§§ 371, 1343 and 1341, respectively. He began his prison term in
August of 1984, and was paroled in December of 1984, with a full-
term release date in August of 1991.
After Cronn was arrested on a DWI charge in August of 1989,
William S. Fitzgerald (“Fitzgerald”), a United States Probation
Officer, notified John Buffington (“Buffington”), a Case Analyst
for the United States Parole Commission (“the Commission”). In
January of 1991, the Commission issued a parole-violator warrant
(“warrant”) as a detainer, based on Fitzgerald’s report of Cronn’s
indictment on five separate violations of the Texas Securities Act.
The Commission later supplemented the warrant with an additional
violation based on another state charge.
The warrant was executed by placing Cronn into federal custody
in April of 1991, upon his release by state authorities. At a
preliminary interview with a Commission representative, Cronn
denied the charged violations. After the representative found
probable cause that Cronn had committed a parole violation, Cronn
requested a revocation hearing, which was scheduled for June of
1991. In May of 1991, in response to a request from an Assistant
United States Attorney that Cronn be allowed to act as a government
informant in a telephone scam investigation, the Commission
2
released Cronn from custody. It held the original supplemented
warrant in abeyance until resolution of the state charges. The
requested parole revocation hearing was never conducted.
Cronn was convicted on the state securities charges in April
of 1992, and he received a suspended sentence and probation. The
conviction was reflected in a supplement to the warrant. Susan
Haas (“Haas”), a probation officer, notified Buffington that Cronn
had pled guilty to the earlier DWI charge and that he had been
arrested on a new DWI charge in August of 1992. The earlier DWI
offense was added to the warrant. After Haas and Fitzgerald
requested that the warrant for Cronn’s arrest be reinstated,
Buffington reinstated the warrant in January of 1993. Following
the second execution of the original warrant, Cronn received a
revocation hearing. The parole panel recommended that Cronn’s
parole be revoked, and credited Cronn for the month he served in
prison following the first execution of the warrant.
Cronn successfully filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Cronn v. Burkhart, 830 F.
Supp. 946 (N.D. Tex. 1993). The district court held that the
Commission lacked statutory authority to execute a parole-violator
warrant, then withdraw the warrant and suspend its operation
pending the outcome of the state charges. It also found that the
Commission deprived Cronn of his right to the revocation hearing
when he was retaken into custody. No appeal was taken from that
order and it is now final.
3
In the instant suit, Cronn has alleged civil rights violations
by individual federal Defendants and has sued the following
officials of the United States Parole Commission and the Federal
Bureau of Prisons in their individual and official capacities:
John Buffington, case analyst for the Commission; Susan Haas,
probation officer; William S. Fitzgerald, United States Probation
Officer; Gary Gray, Administrator of the Parole Commission; Wade E.
French, Chief Probation Officer for the Eastern District of Texas;
Edward F. Reilly, Jr., Commissioner of the Parole Commission; Ron
C. Burkhart, Warden at the FCI in Fort Worth; and Kathleen Hawk,
Director of the Federal Bureau of Prisons. Also named as
Defendants were the United States Parole Commission and the Federal
Bureau of Prisons. We construe Cronn’s action as one brought
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
Cronn alleged that failure to hold a parole revocation hearing
was a denial of due process, that his second arrest for parole
violation violated the Fourth and Fifth Amendments, and that his
illegal incarceration was cruel and unusual punishment in violation
of the Eighth Amendment. He claimed that Buffington, Haas,
Fitzgerald, Gray, Burkhart, and Reilly personally deprived him of
statutory and constitutional rights and that French and Haas also
knew of and acquiesced in this deprivation. He sought both
compensatory and punitive damages.
The Defendants moved for summary judgment, claiming they were
4
entitled to absolute and qualified immunity. The trial court
determined that Cronn had not been denied due process, rejecting
the decision by the Northern District of Texas as being improperly
decided and thus non-binding. Because it found that the federal
courts of appeal differed on whether a parole revocation hearing
could be held in abeyance, the court determined that there was no
clearly defined right to a revocation hearing under Cronn’s
circumstances. It explained that the absence of a clearly defined
right made it reasonable that the officials could believe that
their conduct towards Cronn was lawful. The district court granted
qualified immunity to all Defendants. Additionally it found that
only Haas, Fitzgerald, and Buffington actually participated in
revoking Cronn’s parole and that the remaining Defendants could not
be held liable for damages on a respondeat superior theory. The
district court dismissed the claims against those remaining
Defendants on the additional ground of failure to state a claim
upon which relief may be granted.1
II.
We review a grant of summary judgment de novo. Ganther v.
Ingle, 75 F.3d 207, 209 (5th Cir. 1996). Summary judgment is
proper when no issue of material fact exists and the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
We view the facts and inferences in the light most favorable to the
1
FED. R. CIV. P. 12(b)(6).
5
non-movant. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th
Cir. 1997).
III.
A.
To recover damages for an allegedly unconstitutional
revocation of parole, a plaintiff must prove that his conviction or
sentence has been reversed on direct appeal, expunged by executive
order, or called into question by a federal court’s issuance of a
writ of habeas corpus.2 Unless the plaintiff can prove one of the
three criteria, his claim is not cognizable and must be dismissed.3
Because the United States District Court for the Northern District
of Texas granted Cronn’s habeas petition, his Bivens claim for
damages from alleged illegal incarceration is cognizable.
The Defendants claim qualified immunity, which shields a
government official performing discretionary functions not only
from liability but also from suit.4
The Supreme Court has clarified the proper analytical
framework for addressing a claim of qualified immunity.5 Once a
defendant pleads the defense of qualified immunity, the trial judge
2
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Littles v.
Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir.
1995). Heck applies to Bivens actions. Stephenson v. Reno, 28
F.3d 26, 27 (5th Cir. 1994).
3
Heck, 512 U.S. at 487.
4
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).
5
Siegert v. Gilley, 500 U.S. 226, 231 (1991).
6
must first determine “whether the plaintiff has alleged a
constitutional violation at all” under current law.6 If the
plaintiff has done so, the judge then determines whether the
defendant’s actions were “objectively reasonable” with reference to
“clearly established law” at the time of the conduct in question.7
For a right to be “clearly established,” its “contours ... must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.”8 This does not mean that
prior cases must have held the particular conduct unlawful; “but it
is to say that in the light of pre-existing law the unlawfulness
must be apparent.”9 Having laid out the framework for determining
if a plaintiff’s allegations are sufficient to overcome a
defendant’s defense of qualified immunity asserted in a motion for
summary judgment, we now turn to Cronn’s claims.
B.
Cronn first alleges that the absence of a parole revocation
hearing following the April, 1991 execution of the parole-
violator’s warrant unlawfully deprived him of his right to due
process. In ruling on his habeas petition, the district court
determined that Cronn’s constitutional rights had been violated.
6
Harlow, 457 U.S. at 818-819.
7
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
8
Id. at 640.
9
Id.
7
Cronn v. Burkhart, 830 F. Supp. 946, 957 (N.D. Tex. 1993). No
appeal was taken from that judgment, and it is now final.10 Id. at
957.
We therefore turn to the second prong of the Siegert analysis:
whether the Appellees’ conduct was objectively reasonable under
clearly established law at the time of the conduct in question.
In 1972, the Supreme Court held that the execution of a
parole-violator warrant triggered a parolee’s due process rights to
a revocation hearing.11 Following that decision, Congress enacted
the Parole Commission and Reorganization Act of 1976, 18 U.S.C.
§§ 4201-4218 (“the Act”).12 It required a hearing within sixty days
after a determination that there is probable cause to believe that
a parolee has violated a condition of his parole.13 Two days after
Cronn was indicted and jailed for violations of the Texas
Securities Act, the Commission issued a warrant as a detainer.
When Cronn was released from state custody on April 3, 1991, the
warrant was executed, and he was retaken into federal custody.
10
We do not necessarily agree with the district court’s
conclusion that Cronn’s constitutional rights were violated, but we
lack the power to review the validity of that decision because it
stands as a final judgment.
11
Morrissey v. Brewer, 408 U.S. 471, 485 (1972).
12
Although these sections were repealed effective October 12,
1984, they remained applicable for ten years for individuals whose
offenses were committed before November 1, 1987. Cronn’s offenses
fall within the applicable time period.
13
18 U.S.C. § 4214(a)(1)(B) (1985).
8
After a probable cause hearing, the revocation hearing was
scheduled for June, 1991. That revocation hearing was never
conducted because Cronn was released from custody on May 3, 1991,
pending a resolution of the state charges, so that he could act as
a government informant in a telephone scam investigation.
Although the statutory language appears clear, it in no way
contemplates the situation which arises here. The statutory
language directs that a revocation hearing be conducted within
sixty days of the revocation of parole status because due process
requires an opportunity for a hearing before the final decision on
revocation is made by the parole authority. The purpose of this
hearing is (1) to conduct a final evaluation of any contested
facts; and (2) to consider whether the facts as determined call for
the revocation of parole and completion of the full jail term.14
We recognize that Cronn did not receive the final hearing,
scheduled for June, 1991, following the determination of probable
cause. But the Defendants had good reason to believe that a
hearing was no longer necessary after the parole violation warrant
was withdrawn and held in abeyance, and Cronn was released on May
3, 1991. When Cronn was retaken into federal custody, he received
a timely revocation hearing on April 6, 1993, and he was given
credit for the month served in 1991. Based on these facts, and
taking into consideration the purpose of a revocation hearing,
14
Morrissey, 408 U.S. at 488.
9
Cronn has failed to show that the Defendants violated clearly
established law in failing to go forward with the parole revocation
hearing once he was released and the warrant was withdrawn and held
in abeyance. Because the statute does not specify the fate of the
hearing once the parole revocation warrant is withdrawn, and the
officials were not directed by clearly established case law
regarding the proper course of action, we cannot conclude that the
officials violated clearly established law by failing to proceed
with a revocation hearing under the circumstances.
C.
Cronn next alleges that the re-execution of the warrant that
was withdrawn and held in abeyance constituted a denial of his
Fifth Amendment due process rights and a denial of his
constitutional rights under the Fourth and Eighth Amendments. The
district court held that Cronn’s constitutional rights were
violated as a result of the reissuance of the warrant, and that
decision stands as a final judgment.15
We therefore turn to the second prong of Siegert, which is
whether Cronn’s right to be free from the second execution of a
warrant that had been withdrawn and held in abeyance was clearly
established at the time the warrant was re-executed.16
15
See supra note 10.
16
Cronn’s parole violation warrant was withdrawn May 3, 1991,
and held in abeyance pending the completion of his role as a
confidential informant and the resolution of the state securities
fraud charges against him. Ultimately, the warrant was
10
At the outset, we note that a parole violation warrant may be
validly executed after the expiration of the violator’s original
jail term as long as it has been issued within that term.17
We now examine the law as it then existed to assess what, if
any, “clearly established” legal standard governed the authority of
the Commission to withdraw an executed warrant, hold it in abeyance
pending disposition of other criminal charges, and re-execute that
warrant. We find that five Circuits had addressed this or a
similar issue and had arrived at differing conclusions.
The Tenth Circuit determined that the Commission lacked the
statutory authority to withdraw a warrant once it has been executed
and to hold it in abeyance pending the disposition of the state
charges which form its basis.18 A later Tenth Circuit case held,
however, that the Commission did have the authority to withdraw an
improperly executed warrant and issue a second one.19
supplemented with additional convictions of DWI and securities
violations, and was re-executed January 14, 1993.
17
Franklin v. Fenton, 642 F.2d 760, 764 (3d Cir. 1980)
(holding that the date of issuance, not of execution, is critical);
United States v. Chancey, 695 F.2d 1275, 1277 (11th Cir. 1982)
(holding that issuance of a warrant prevents the sentence from
expiring, and allows the Parole Commission to retain jurisdiction
to revoke parole); 28 C.F.R. § 2.44(d)(1977)(stating that issuance
of a parole violator’s warrant bars the expiration of a parolee’s
sentence and maintains the Commission’s jurisdiction to retake the
parolee before or after the normal expiration date of the
sentence.).
18
Still v. United States Marshal, 780 F.2d 848, 851-53 (10th
Cir. 1985).
19
McConnell v. Martin, 896 F.2d 441, 446 (10th Cir. 1990).
11
Both the Seventh and Third Circuits held that the Commission
may withdraw a previously executed warrant and hold it in abeyance
pending a final disposition of state criminal charges.20 The
Seventh Circuit in Thigpen determined that there was no need to
issue a new warrant and that re-execution of the original warrant
was proper.21 It reasoned that because the Commission may defer the
revocation hearing until the resolution of state charges and may
restore a parolee to supervision even if probable cause for a
violation is found without a revocation hearing, the Commission
must be able to withdraw a warrant, hold it in abeyance, and then
re-execute it.22 The Seventh Circuit recognized the “salutary
policy of allowing a suspected parole violator to clear himself of
state charges prior to his revocation hearing, thus avoiding the
necessity of his choosing between pleading his right against self-
incrimination, making admissions against his interest, or
testifying falsely to exculpate himself.”23
With this philosophy in mind, the Thigpen court thus called
for a commonsensical and policy-sensitive reading of the Act that
would yield the conclusion that the Commission may withdraw and re-
20
Thigpen v. United States Parole Comm’n, 707 F.2d 973, 978
(7th Cir. 1983); Franklin, 642 F.2d at 763.
21
Thigpen, 707 F.2d at 977-78.
22
Id. at 976-77; 18 U.S.C. §§ 4213(b) & 4214(a)(1)(A)(i)
(1985) (both in effect during the period in question).
23
Thigpen, 707 F.2d at 976.
12
execute a warrant, and then conduct a revocation hearing.
The Third Circuit in Franklin came to a similar conclusion.
It recognized the Commission’s authority to withdraw a warrant,
issue a new warrant listing the same violations as the first, and
then hold that warrant in abeyance until the resolution of the
state charges.24 The Seventh Circuit, in discussing Franklin,
characterized the difference between the withdrawal and reissuance
of an old warrant and the issuance of a new warrant as
inconsequential.25
The Eighth Circuit, in somewhat dissimilar circumstances, held
that the Commission does not possess implicit authority to withdraw
an executed warrant.26 Sensitive to the policy concerns behind
holding a warrant in abeyance, the court found that when a warrant
was executed after the disposition of state charges, and then
withdrawn and held in abeyance to be re-executed later, the
concerns expressed by the Thigpen and Franklin courts were not
implicated. It did not, however, hold that the Commission had no
power to re-execute a warrant in other circumstances.
Finally, this Circuit’s only ruling regarding the Commission’s
authority to withdraw a warrant involved one executed contrary to
24
Franklin, 642 F.2d at 763.
25
Thigpen, 707 F.2d at 977.
26
Donn v. Baer, 828 F.2d 487, 490 (8th Cir. 1987).
13
its terms.27 The Commission issued a warrant to the United States
Marshal, with instructions to use the warrant as a detainer if the
parolee was already in state custody. Although the parolee was in
a state facility, the Marshal executed the warrant and placed the
parolee in federal custody. Almost a month later the Commission
realized the error, withdrew the warrant and replaced it as a
detainer. The Court held that the Commission has the authority to
have such an invalid warrant replaced as a detainer.
The conflicting Circuit decisions in effect at the time of
Cronn’s complaint indicate that no “clearly established” legal
standard existed, such that officials could determine that their
conduct - the withdrawal, holding in abeyance, and re-execution of
a parole violation warrant - violated Cronn’s rights. Because
there was no “clearly established” right to be free from seizure
under such a warrant, we affirm the district court’s judgment
granting summary judgment to the defendants based on the defense of
qualified immunity.
D.
We affirm, in addition, the district court’s dismissal of
claims against all Defendants other than Haas, Fitzgerald, and
Buffington, due to Cronn’s failure to state a claim against them
upon which relief may be granted.
Because there is no doctrine of respondeat superior in Bivens
27
Chandler v. Barncastle, 919 F.2d 23, 26 (5th Cir. 1990).
14
actions,28 the supervisory federal officials named in the suit may
be held liable only upon two bases. First, personal involvement in
the acts causing the deprivation of a person’s constitutional
rights creates personal liability.29 Cronn has failed to state
facts that indicate this degree of involvement. Second, a
supervisory official may be held liable if he implements a policy
so deficient that the policy itself acts as a deprivation of
constitutional rights.30 The record fails to reveal the existence
of such a policy. Because neither predicate for liability is
satisfied, we agree that Cronn has failed to state a claim against
the non-participating officials and that they were properly
dismissed pursuant to FED. R. CIV. P. 12(b)(6).
For the foregoing reasons we affirm the judgment of the
district court in all respects.
AFFIRMED.
28
See Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110
(5th Cir. 1993) (and cases cited therein).
29
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
30
Id.
15
Cronn v. Buffington
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-08-27
Citations: 150 F.3d 538
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