Rizzo v. Terenzi, CV 85-2572.

• Decision Date: 30 September 1985
• Docket Number: No. CV 85-2572.,CV 85-2572.
• Citation: 619 F. Supp. 1186
• Parties: Ronald RIZZO, Barbara Walberg, and Kim Walberg, Plaintiffs, v. Elaine TERENZI, Defendant.
• Court: U.S. District Court — Eastern District of New York

619 F. Supp. 1186

Ronald RIZZO, Barbara Walberg, and Kim Walberg, Plaintiffs, v. Elaine TERENZI, Defendant.

No. CV 85-2572.

United States District Court, E.D. New York.

September 30, 1985.

Ronald Rizzo, Barbara Walberg, and Kim Walberg, pro se.

Raymond J. Dearie, U.S. Atty., E.D.N.Y., Susan M. Rogers, Asst. U.S. Atty., Brooklyn, N.Y., for Elaine Terenzi.

Memorandum of Decision and Order

MISHLER, District Judge.

Plaintiffs, pro se, bring this action for injunctive relief and monetary damages on the ground that defendant United States Probation Officer Elaine Terenzi, acting under color of federal law, deprives them of their constitutional rights by refusing to permit them to travel outside this district. Plaintiffs ask this court to compel defendant to grant plaintiff Rizzo's request that he be permitted to travel to Florida for a period of thirty days. While plaintiffs characterize their claim as a Bivens action, the court construes this action for injunctive relief as an action in the nature of mandamus pursuant to 28 U.S.C. § 1361 (1982). Defendant moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b), or, in the alternative, for summary judgment pursuant to Fed.R. Civ.P. 56.

FACTS

Plaintiff Ronald F. Rizzo was convicted on a charge of importing heroin and served approximately four years of a federal prison term before being released from custody. Plaintiff Barbara Walberg, convicted on charges of conspiracy to import heroin, importation of heroin, and possession with intent to distribute heroin, was released from custody after serving approximately eighteen months of a federal term. Upon their release Rizzo and Walberg each executed a standard certificate acknowledging the conditions of their parole,¹ which include a requirement that they "work regularly unless excused by their probation officer," and prohibit them from leaving the Eastern District of New York "without written permission from their probation officer." Defendant Probation Officer Elaine Terenzi was assigned to supervise Rizzo and Walberg at all times relevant to this action.

Shortly after his release Rizzo orally requested permission from Terenzi to travel to Florida for a period "not to exceed thirty days." According to Officer Terenzi, Rizzo sought to vacation and to investigate a possible job opportunity. Officer Terenzi denied Rizzo's request, explaining that she would consider granting a request for a shorter trip. No such request was ever made.²

Since his release Rizzo has failed to demonstrate any legitimate employment or a verifiable source of regular income. He has made no attempt to seek regular employment. It is the position of Officer Terenzi that three days would be adequate time to investigate the job opportunity proposed by Rizzo, and that a thirty day vacation is not warranted in light of Rizzo's poor employment history and the difficulty of maintaining close supervision while in Florida. The location plaintiffs seek to visit is in a remote area, approximately one hundred miles from the closest United States Probation Office.

Walberg, although joining in this action to compel Terenzi to grant permission, has never taken steps to request permission for the proposed thirty day trip.

Plaintiff Kim Walberg is Barbara Walberg's eleven year old daughter. Kim Walberg is not under parole supervision and is joined in this suit to protest the denial of Rizzo's permission to travel which, it is claimed, deprives the plaintiffs of their rights to liberty and property without due process of law.

DISCUSSION

The plaintiffs ask this court to direct Probation Officer Terenzi to grant permission for a thirty-day trip to Florida. Because this action seeks to compel an officer of the United States to perform a duty, we construe it as an action in the nature of mandamus. 28 U.S.C. § 1361 (1982). While the plaintiffs' allegations are sufficient to confer jurisdiction upon this court to consider issuance of a writ, we find there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law.

A writ of mandamus may issue only where the plaintiff establishes a clear right to the relief sought; a plainly defined and peremptory duty on the defendant's part to do the act in question; and lack of another available, adequate remedy. Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir.1976). Where, as here, the allegations in the complaint adequately set forth the failure of such a duty, the court has jurisdiction under § 1361. See id. at 946-47; see also Soberal-Perez v. Schweiker, 549 F.Supp. 1164, 1170 (E.D.N. Y.1982), aff'd, 717 F.2d 36 (2d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984). Because the pleadings and supporting materials demonstrate that none of the required elements are met, however, plaintiffs' claim must fail.

That plaintiffs have no "clear right" to the relief sought is beyond question. As parolees, Rizzo and Walberg are subject to the express terms of their release, which include the condition that they "shall not leave the limits fixed by the certificate of parole without written permission from the probation officer." 28 C.F.R. § 2.40(3) (1985). Absent such permission, Rizzo and Walberg are restricted to the Eastern District of New York under their respective certificates. While the right to travel from state to state is indeed constitutionally protected, Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969), an individual's right to travel, extinguished by conviction and subsequent imprisonment, is not revived upon parole. Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir.1983).

It is well established that a parolee enjoys "only conditional liberty properly dependent on observance of special parole restrictions," Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), and that the government may "properly subject him to many restrictions not applicable to other citizens." Id. at 482, 92 S.Ct. at 2601. The viability of the parole system depends upon certain restrictions, among them the ability to monitor and control travel. See Berrigan v. Sigler, 499 F.2d 514 (D.C.Cir.1974). In the absence of approval from their probation officer, Rizzo and Walberg have no "right" to travel.³

For the same reasons, the claimed "duty" on the part of defendant is in fact discretionary. The court may compel compliance with a constitutional duty only "after determining its substance." Soberal-Perez v. Schweiker, 549 F.Supp. 1164, 1170 (E.D.N.Y.1982), aff'd, 717 F.2d 36 (2d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984); see also Davis v. United States Dept. of Health, Ed. & Welfare, 416 F.Supp. 448 (S.D.N.Y.1976). Discretion as to whether to grant travel permission is vested in the probation officer. See 28 C.F.R. § 2.41(a) (1985) ("The probation officer may approve travel outside the district....) (emphasis added). As we have already noted, this comports with constitutional requirements. Mandamus is not available to direct or influence the exercise of discretion, as the legislative history of § 1361 makes clear. See S.Rep. No. 1992, 87th Cong., 2d Sess., reprinted in 1962 U.S.Code Cong. & Ad. News 2784. Because Officer Terenzi's decision to deny approval rests on legitimate governmental interests in supervising and rehabilitating plaintiffs, it was not arbitrary or capricious and the court will not substitute its judgment for that of the Probation Office. See Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972) (government may impose parole restrictions "that are reasonably and necessarily related" to governmental interests); cf. Queenan v. Heckler, 581 F.Supp. 1216, 1218 (S.D.N.Y.1984) (mandamus appropriate where agency decision "so clearly contradicted by the record" as to constitute abuse of discretion).

Finally, plaintiffs do not lack available, adequate remedies. It is uncontradicted that plaintiff Walberg has failed to request travel permission from her probation officer. Plaintiff Rizzo, although having discussed the request at issue with a supervisory probation officer, has yet to make a formal, properly documented request encompassing all of the claimed objectives of his trip.⁴ Clearly, plaintiffs have not exhausted the administrative remedies available to them.

Because there is no genuine issue of material fact and the material on record demonstrates that none of the elements required to support a writ of mandamus are met, defendant is entitled to judgment as a matter of law.

Plaintiffs' claim for money damages likewise fails. Plaintiffs seek damages based upon their assertion that defendant Terenzi, acting under color of federal law, violated their constitutional rights under the Fifth Amendment by refusing to permit the requested travel. Constitutional deprivations by federal officers acting under color of federal authority may indeed give rise to a cause of action for damages. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As we have already noted, however, the...