Rauschenberg v. Williamson, 85-8366

• Decision Date: 02 April 1986
• Docket Number: No. 85-8366,85-8366
• Parties: Thomas F. RAUSCHENBERG, Plaintiff-Appellant, v. William WILLIAMSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 985

785 F.2d 985

Thomas F. RAUSCHENBERG, Plaintiff-Appellant, v. William WILLIAMSON, Defendant-Appellee.

No. 85-8366.

United States Court of Appeals, Eleventh Circuit.

April 2, 1986.

Ray C. Norvell, Sr., Decatur, Ga., for plaintiff-appellant.

Myles E. Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY and HATCHETT, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, we are urged to reverse a district court holding that special factors counsel against allowing a former parolee to bring a Bivens action against his former parole officer for misrepresentations to the former parolee and for recommendations the parole officer made to the United States Parole Commission. We affirm.

Thomas F. Rauschenberg, the appellant, was convicted in 1975 of violating the Federal Controlled Substances Act and sentenced to a term of seven years imprisonment with three years special parole to follow the imprisonment. The United States Parole Commission paroled Rauschenberg in May or June, 1978, after he had served about forty months of his sentence.

Rauschenberg had served approximately seventeen months of his parole when William Williamson, his parole officer, recommended to the parole commission that a special condition of parole be imposed requiring mental health after-care treatment. In October 1979, the parole commission approved this recommendation. Rauschenberg did not present any objections to the special condition to the parole board; he accepted the addition to his parole conditions and signed the necessary consent forms. Rauschenberg asserts that he signed the forms because Williamson told him that he had no right to contest the decision to impose the special condition and because Williamson threatened to have his parole revoked if he did not accept the special parole condition. On October 26, 1979, Rauschenberg also signed a waiver of his right to take an administrative appeal of the mental health after-care condition. He asserts that he did so because Williamson threatened to have his parole revoked.

From November, 1979, to early 1980, Rauschenberg received mental health treatment at the South DeKalb Mental Health Center in DeKalb County, Georgia. He alleges that Williamson refused to allow him to withdraw his consent to the treatment or to withdraw his waiver of his appeal rights during this period.

In March, 1980, the parole commission revoked Rauschenberg's parole because of various violations of his parole conditions. He was returned to prison for several months and then in October, 1980, placed in a halfway house in Atlanta, Georgia. Re-parole was scheduled to become effective February 10, 1981.

On November 3, 1980, on Williamson's recommendation, the parole commission made mental health after-care treatment a special condition to Rauschenberg's re-parole. On November 13, 1980, Rauschenberg telephoned the regional parole commissioner and requested that he rescind the special condition. The commissioner rescinded the condition that day. On February 11, 1981, on the recommendation of Williamson, the special condition was again made a condition of Rauschenberg's parole.

Again, Rauschenberg accepted the special condition of parole. He claims again to have been coerced by Williamson. He asserts that Williamson told him that his 1979 waiver of his appeal rights meant that he could not appeal the parole commission's decision.

Rauschenberg received mental health treatment on one occasion in March, 1981. Soon thereafter he was convicted of state drug charges and reincarcerated.

Rauschenberg's complaint against Williamson consisted of three causes of action: (1) a Bivens action for deprivation of procedural rights in the parole process; (2) a Bivens action for deprivation of Rauschenberg's first, fourth, fifth, eighth, and ninth amendment rights resulting from the parole commission's requiring Rauschenberg to undergo psychiatric examination and treatment as a condition of parole; and (3) a 42 U.S.C. Sec. 1983 action against Williamson for conspiring with state officials to deprive Rauschenberg of these same substantive rights. The procedural rights that Rauschenberg alleges Williamson deprived him of are created by statute and regulations. ¹ The particulars of the substantive claims are not significant for the purposes of this decision.

In the district court, Williamson filed a motion for summary judgment. The district court initially denied Williamson's motion for summary judgment on the ground that a material question of fact existed as to the voluntariness of Rauschenberg's waiver of his right to appeal the imposition of the special condition of parole. The district court also ruled that Williamson was not entitled to immunity. Upon reconsideration, the district court concluded that Rauschenberg had failed to state a Bivens action and had failed to establish that a disputed issue existed as to whether Williamson had acted in concert with state officials. Consequently, the district court granted Williamson's motion for summary judgment.

A "Bivens action" provides an action for damages to vindicate a constitutional right when a federal government official has violated such a right. The action is available if no equally effective remedy is available, no explicit congressional declaration precludes recovery, and when no "special factors counsel hesitation." See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

The district court assumed that Rauschenberg's procedural rights were protected by the fifth amendment and assumed that at the time of filing this case, Rauschenberg had no alternative remedy for the deprivation. Based upon these assumptions, the court ruled that a "special factor counselling hesitation" weighed against recognizing a Bivens action for the deprivations alleged in this case. The court then ruled that the "factor counselling hesitation," is the existence of the habeas corpus statute and the parole statute which provided Rauschenberg with adequate relief from the deprivations at the time the deprivations were occurring.

PROCEDURAL CLAIM (BIVENS)

Rauschenberg had remedies at the time of the alleged violations. He was advised of his rights throughout the process, and he had access to a lawyer at various times during the course of events. Rauschenberg could have at any time refused to comply with the mental health after-care condition and had his parole revoked. He could have then reapplied for parole and presented his objections to the U.S. Parole Commission at that time. If the parole commission persisted in imposing the special condition, he would have had the right to reject parole, or he could have exercised his right to appeal the imposition of the special condition. He also could have filed for judicial review through a petition for habeas corpus relief. ² As the district court noted, Rauschenberg could have filed for habeas corpus relief at the first instance he believed his parole rights had been violated. Compare Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir.1977) (appropriate means of seeking release from terms and conditions of probation is petition for habeas corpus).

The Parole Commission and Reorganization Act of 1978 is a complex and comprehensive remedial system to govern parole situations. Congress intended the administrative appeal process to have a beneficial effect on the rapidly increasing volume of court litigation regarding parole decisions. S.Rep. (Judiciary Committee) No. 94-369, 94th Cong., 1st Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 335, 337. Rauschenberg's listing of the procedural rights allegedly violated by Williamson provides a survey of the remedial scheme created by stat...