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WALRATH v. UNITED STATES

November 24, 1993

JOHN E. WALRATH, Plaintiff,
v.
UNITED STATES OF AMERICA; CAROL PAVILACK GETTY, Regional U.S. Parole Commissioner, in her individual capacity; CAROL WILSON MULLER, U.S. Parole Commission, Senior Case Analyst, in her individual capacity; MICHAEL STOVER, General Counsel for U.S. Parole Commission, in his individual capacity; JOHN MAGNUSON, Case Analyst for U.S. Parole Commission, in his individual capacity, 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 are the individual defendants' motion to dismiss. For the following reasons, we grant the motion.

 I. Factual Background1

 On October 13, 1970, a jury convicted 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 His parole was revoked five years later when he was caught stealing and resisted arrest.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 revocation of this parole provides the fodder for Walrath's current complaint.

 As a special condition of Walrath's parole, he was to receive ongoing mental health aftercare. Certain of the programs targeted for Walrath required use of a polygraph and a penile plethysmograph during diagnosis or treatment. *fn2" The prospect of these tests troubled Walrath, and sometime in the fall of 1992, Terry Childers, Walrath's probation officer, informed Walrath that he would not be required to undergo a polygraph or penile plethysmograph without further clarification from the USPC. In response, Walrath let the USPC know that he was prepared to comply with any parole conditions, provided he be permitted to seek judicial review of any requirements he believed violated his constitutional rights.

 On July 25, 1992 Childers visited Walrath at his home to discuss his aftercare. During the call, Walrath became agitated. His face grew red and he started to gesticulate angrily. Feeling nervous, Childers got into his car and started to leave. According to Childers' report, Walrath climbed onto the vehicle to prevent him from leaving. After heeding Childers' instruction to get off, Walrath took to his own car and followed Childers for several miles before turning around and going home.

 Following this incident, Childers filed a report with the USPC. Notably, he did not request that Walrath's parole be revoked. Instead, he simply wanted to record the events. Based on the report, however, and on word that Walrath had failed to comply with the penile plethysmograph at the Midwest Family Resource Center, the USPC issued a warrant for Walrath's arrest signed by Muller, a senior case analyst. Charge One of the arrest warrant alleged that Walrath had violated the mental health condition of his parole, while Charge Two alleged that Walrath had attempted to assault Childers. On September 4, United States Marshals arrested Walrath at his home in the early morning hours.

 Upon arrest, Walrath was taken to the Metropolitan Correctional Center ("MCC") where he was incarcerated from September 4 to March 4, 1992. From March 4 to April 26, 1993, Walrath was held at a halfway house. A preliminary hearing to determine whether there was probable cause to arrest Walrath was held on September 14, 1992. At the hearing, Childers corroborated Walrath's assertion that he intended to comply with aftercare conditions. Accordingly, USPC hearing officer Ronald Kumke found no probable cause for Charge One. Subsequently, Getty and Magnuson overrode Kumke, finding that probable cause existed for Charge One, warranting continued incarceration for Walrath on this offense.

 As for Charge Two, Childers testified that he had not felt threatened by Walrath and that he had not sought an arrest warrant. It is not clear from Walrath's complaint, however, or from the record, whether Kumke found probable cause for Charge Two. Instead, it is apparent that Charge Two of the arrest warrant was amended, charging Walrath with threatening to assault Childers.

 On November 14, 1992, Walrath filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. *fn3" Walrath alleges that in retaliation for filing this petition, the USPC postponed his revocation hearing until December 9, 1992, when it was held before two USPC officers. The officers found no basis for Charge One and downgraded Charge Two of the arrest. In its Notice of Action, the USPC stated as follows:

 
At no time did you physically or verbally assault your U.S.P.O. Moreover, you adjusted acceptedly and apparently fully intended to comply with your parole conditions.

 Based on these findings, the officers recommended that Walrath be held in custody for six months for disorderly conduct, an offense with which Walrath had not been ...


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