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Walrath v. Getty

December 6, 1995

JOHN E. WALRATH,

PETITIONER-APPELLANT,

v.

CAROL P. GETTY AND UNITED STATES PAROLE COMMISSION,

RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6439--Wayne R. Andersen, Judge.

Before CUMMINGS, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED OCTOBER 23, 1995

DECIDED DECEMBER 6, 1995

In this habeas corpus proceeding, John Walrath challenges the revocation of his parole. Mr. Walrath claims that the Parole Commission revoked his parole because he had protested the administration of a medical test required by a special condition of his parole. He asserts that it violates the Due Process Clause of the Fifth Amendment to predicate the revocation on this basis because the Commission had previously stated that it would not interfere with his right to protest. Mr. Walrath further alleges that revoking his parole on this ground violates his First Amendment right to free speech. For the reasons set forth in the following opinion, we affirm the decision of the district court denying the writ of habeas corpus.

I. BACKGROUND

On October 13, 1970, John Walrath was convicted in federal court of kidnapping a six year-old boy. Mr. Walrath was alleged to have abducted and sexually molested the boy in Chicago before taking the victim to Hart, Michigan and attempting to drown him in Lake Michigan. On February 19, 1971, Mr. Walrath was sentenced to thirty-five years in prison. He was first released on parole in 1983. His parole was revoked in 1990 after he failed to report to his parole officer an arrest and conviction for retail theft and resisting arrest.

On May 8, 1992, Mr. Walrath was paroled a second time. As a special condition of parole, he was ordered to receive ongoing mental health aftercare. Mr. Walrath's probation officer referred him to Midwest Family Resources in Oak Park, Illinois to obtain a determination of his treatment needs. After a number of interviews, Midwest Family Resources reported that he was unwilling to discuss his sexual history or sexual arousal patterns and that it would be impossible to evaluate him without a clinical polygraph and a penile plethysmograph test. *fn1 Mr. Walrath refused to submit to either test. When he was approached by his probation officer about his refusal to take the tests, Mr. Walrath threatened the officer with assault. This conduct led to his arrest and the revocation of his parole for 180 days.

When Mr. Walrath was paroled for a third time, he was ordered to submit to the plethysmograph as a condition of his parole. The test was scheduled for July 7, 1993 at the Isaac Ray Center, a mental health clinic in Chicago. Six days before the test, however, Mr. Walrath filed suit in the Northern District of Illinois seeking injunctive relief from the test and damages against Parole Commission officials pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court denied Mr. Walrath's request for injunctive relief, Walrath v. United States, 830 F. Supp. 444 (N.D. Ill. 1993), and dismissed his suit for monetary damages. Walrath v. United States, 842 F. Supp. 299 (N.D. Ill. 1993). Mr. Walrath did not appeal the denial of his request for an injunction. The dismissal of the suit for money damages was affirmed by this court in Walrath v. United States, 35 F.3d 277 (7th Cir. 1994).

Following disposition of his legal claims, Mr. Walrath took the position that he was willing to undergo the plethysmograph test. He refused, however, to sign the voluntary consent form provided by the Isaac Ray Center. Exercising its discretion to do so, the Commission deferred requiring him to take the test pending the outcome of further psychiatric evaluation. The Center's evaluation concluded that Mr. Walrath is in a special category of high risk sex offenders and that, without more information, the Center could not gauge his tendencies toward recidivism.

The United States Probation Office and the Parole Commission then notified Mr. Walrath of his right to object, within the ten-day period allowed by 18 U.S.C. sec. 4209, to a proposed special condition of parole that would require him to submit to the plethysmograph in accordance with the forms provided by the Isaac Ray Center. Mr. Walrath objected to the proposed special condition. Nevertheless, the Parole Commission, characterizing Mr. Walrath's refusal to sign the form as a "transparent attempt to frustrate testing and diagnosis," added the special condition on January 14, 1994. *fn2

When Mr. Walrath again refused to sign the consent forms provided by the Isaac Ray Center, the Parole Commission scheduled a revocation hearing for April 18, 1994. Before the hearing was held, however, Mr. Walrath filed a petition for habeas corpus in the Northern District of Illinois. The petition alleged that requiring him to sign the form would violate his right to due process, his right to privacy, and his First Amendment right to voice a lack of consent to the test. On April 11, 1994, the district court found the test to be a reasonable condition of his parole and denied Mr. Walrath's petition. He did not appeal the court's denial of the petition.

The Parole Commission held the hearing as scheduled. According to Mr. Walrath, a dialogue took place at this hearing concerning his right to protest the plethysmograph test. He contends that Thomas Haywood, a representative of the Isaac Ray Center, stated that all the Center needed to perform the test was a signed consent form. Mr. Haywood is alleged to have added, though, that the Center would have reason for concern if Mr. Walrath protested too loudly. Mr. Walrath further contends that he circulated a letter to all those present at the hearing. This letter, which was dated April 15 and was addressed to his parole officer, indicated that Mr. Walrath was not releasing Parole officials or the Isaac Ray Center from civil liability. Mr. Walrath's final contention concerning the hearing is that a Parole Commission officer assured him that the Commission would not interfere with his right to protest the procedure; signing the consent form was all that would be needed. The parties agree that Mr. Walrath did tender a signed consent form at the April 15 hearing.

Before Mr. Walrath presented himself for the test, his attorney sent a letter to Dr. Jonathan Kelley and Thomas Haywood at the Isaac Ray Center. This letter, which was dated April 18, stated that Mr. Walrath's consent was given only to avoid imprisonment and that Mr. Walrath "has not released, nor will he release, the Isaac Ray Center from civil liability for its role in the process." R.1, Letter from Daniel Alexander to Dr. Jonathan Kelley and Thomas Haywood of 4/18/94, Ex.C. After receiving this letter, the Center was ...


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