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WALRATH v. UNITED STATES

July 29, 1993

JOHN E. WALRATH, Plaintiff,
v.
UNITED STATES, et al., Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff John E. Walrath ("Walrath") brings this complaint against the United States, Carol Getty ("Getty"), the Regional United States Parole Commissioner, Carol Muller ("Muller"), an analyst for the United States Parole Commission ("USPC"), Michael Stover ("Stover), General Counsel for the USPC, and John Magnuson ("Magnuson"), a case analyst for the USPC, alleging various violations of his constitutional rights. Presently before us is Walrath's motion for a temporary restraining order to prevent the USPC from requiring him to submit to a polygraph and penile plethysmograph as a condition of his parole. Walrath also seeks preliminary and permanent injunctive relief. Because defendants received notice, appeared before this Court, and had an opportunity to respond in writing to Walrath's motion, we will rule directly on his motion for a preliminary injunction. See Levas & Levas v. Village of Antioch, 684 F.2d 446, 448 (7th Cir. 1982) (district court properly treated motion for TRO as a motion for preliminary injunction when opposing party had notice and appeared at the hearing to contest it). For the following reasons, we deny plaintiff's motion.

 I. Factual Background

 On October 13, 1970, a jury convicted John Walrath of kidnapping and sexually molesting a six year old boy. Three men observed Walrath trying to drown the child in Lake Michigan, and Walrath was captured shortly thereafter.

 Having been sentenced to 35 years of imprisonment in 1971, Walrath was first paroled in 1983. His parole was revoked five years later when he was caught stealing and resisted arrest. On May 8, 1992, Walrath was paroled for the second time. The USPC again revoked his parole, however, when Walrath allegedly threatened his parole officer and intimated that he would not comply with the mental health condition of parole. Although reviewing hearing officers twice found no probable cause for the revocation of Walrath's parole, he nonetheless was held until March 4, 1993, when he was released.

 One of the special conditions of Walrath's parole is that he participate in a mental health treatment program. Currently, Walrath's probation officer recommends that he undergo evaluation and treatment at the Isaac Ray Center. This facility specializes in pedophilia and other deviant sexual practices, and requires a penile plethysmograph examination as part of a patient's initial evaluation. *fn1"

 Walrath seeks to enjoin the USPC from requiring the administration of a plethysmograph or a polygraph as a condition of parole, claiming that it violates his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unreasonable searches and seizures. *fn2"

 II. Discussion

 In order to obtain a preliminary injunction, Walrath must establish (1) that he has a reasonable likelihood of success on the merits, (2) that he will suffer irreparable injury and has no adequate remedy at law, (3) that the harm with which he is faced outweighs the harm a preliminary injunction would impose on defendants, and (4) that an injunction would not disserve the public interest. See Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir. 1989). Walrath must establish all four conditions to warrant an injunction.

 At the outset, we observe that parolees, like probationers, "do not enjoy 'the absolute liberty to which every citizen is entitled, but only [a] conditional liberty properly dependent on observance of special parole restrictions.'" United States v. Thomas, 729 F.2d 120, 123 (7th Cir. 1984), quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d484 (1972). Indeed, probationers have been prohibited from owning particular types of businesses, United States v. Alexander, 743 F.2d 472 (7th Cir. 1984), from running for political office, United States v. Tonry, 605 F.2d 144 (5th Cir. 1979), from associating with known homosexuals, United States v. Kohlberg, 472 F.2d 1189 (9th Cir. 1973), and been required to submit to drug screening urinalyses, United States v. Williams, 787 F.2d 1182 (7th Cir. 1986), and to endure searches without a warrant or probable cause, Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d709 (1987).

 With this in mind, we turn to the likelihood that Walrath will succeed on the merits of his claim. First, because Walrath is not scheduled for a polygraph, nor is one required by the Isaac Ray Center to which he has been referred, this proposed condition does not pose an imminent threat to Walrath's constitutional rights. Byrne Affid. at 5. Accordingly, we will limit our analysis to the issue of whether requiring a plethysmograph as a condition of release violates the Fifth or the Fourth Amendment. *fn3"

 A. Fifth Amendment

 Other than making the conclusory statement that he stands a reasonable likelihood of success on the merits, Walrath does not make any arguments explaining why he is likely to prevail on his claim. The government, on the other hand, argues that a plethysmograph would not implicate Walrath's Fifth Amendment right against self-incrimination because the procedure is not testimonial, but is rather a physical test of Walrath's sexual reactions to various stimuli. Moreover, as opposed to gathering information which may be used to incriminate Walrath, the test is designed to determine how best to help him overcome any sexual deviance he might still harbor, so that he may be returned, safely, to society. Finally, there is no indication that any results from Walrath's plethysmograph could be used to criminally prosecute him for other acts. ...


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