Revised August 27, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-40288

DONALD LORRIN CRONN,

Plaintiff-Appellant,

VERSUS

JOHN BUFFINGTON, U.S. Parole Commission; SUSAN HAAS, U.S. Probation

Officer; WILLIAM FITZGERALD, U.S . Probation Officer; WADE E.

FRENCH, Chief Probation Officer; GARY GREY, U.S. Parole Commission;

RON BURKHART, Warden, FCI Fort Worth; KATHLEEN HAWK, Director, U.S.

Department of Federal Bureau of Prisons; EDW ARD F. REILLY, JR.,

U.S. Parole Commission; U.S. PAROLE COMMISSION; FEDERAL BUREAU OF

PRISONS,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

August 26, 1998

Before WISDOM, KING and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Plaintiff-Appellant Donald Lorrin Cronn appeals the district

court’s gra nt of summary judgment to Defendants in this civil

rights action based on the court's conclusion that the Defendants

were entitled to qualified immunity. For the reasons that follow,

we affirm.2 I.

Donald Lorrin Cronn (“Cronn”) was sentenced in No vember of

1982 to sev en years confinement and five years probation for

conspiracy, wire fraud, and mail fraud, pu rsuant to 18 U.S.C.

§§ 371, 1343 and 1341, respectively. He began his prison term in

August of 1984, and was paroled in December of 1984, with a fullterm release date in August of 1991.

After Cronn was arrested on a DWI charge in August of 1989,

William S. Fitzgerald (“Fitzgerald”), a United States Probation

Officer, notified John Buffington (“Buffington”), a Case Analyst

for the United States Parole Commission (“the Commission”). In

January of 19 91, the Commission issued a parole-violator warrant

(“warrant”) as a detainer, based on Fitzgerald’s report of Cronn’s

indictment on five separate violations of the Texas Securities Act.

The Commiss ion later supplemented the warrant with an additional

violation based on another state charge.

The warrant was executed by placing Cronn into federal custody

in April of 1991, upon his release by state authorities. At a

preliminary interview with a Commission representative, Cronn

denied the charged violations. After the representative found

probable cause that Cronn had committed a parole violation, Cronn

requested a revocation hearing , which was scheduled for June of

1991. In May of 1991, in response to a request from an Assistant

United States Attorney that Cronn be allowed to act as a government

informant in a telephone scam investigation, the Commission3

released Cronn from custody. It held the original supplemented

warrant in abeyance until resolution of the state charges. The

requested parole revocation hearing was never conducted.

Cronn was convicted on the state securities charges in April

of 1992, and he received a suspended sentence and probation. The

conviction was reflected in a supplement to the warrant. Susan

Haas (“Haas”), a probation officer, notified Buffington that Cronn

had pled guilty t o the earlier DWI charge and that he had been

arrested on a n ew DWI charge in August of 1992. The earlier DWI

offense was added to the warrant. After Haas and Fitzgerald

requested that the warrant for Cronn’s arrest be reinstated,

Buffington re instated the warrant in January of 1993. Following

the second execution of the original warrant, Cronn received a

revocation hearing. The parole panel recommended that Cronn’s

parole be r evoked, and credited Cronn for the month he served in

prison following the first execution of the warrant.

Cronn successfully filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. C ronn v. Burkhart

, 830 F.

Supp. 946 (N.D. Tex. 1993). The district court held that the

Commission lacked statutory authority to execute a parole-violator

warrant, then withdraw the warrant and suspend its operation

pending the outcome of the state charges. It also found that the

Commission deprived Cronn o f his right to the revocation hearing

when he was retaken into custody. No appeal was taken from that

order and it is now final.4

In the instant suit, Cronn has alleged civil rights violations

by individual federal Defendants and has sued the following

officials of the Un ited States Parole Commission and the Federal

Bureau of Prisons in their individual and official capacities:

John Buffington, case analyst for the Commission; Susan Haas,

probation officer; William S. Fitzgerald, United States Probation

Officer; Gary Gray, Administrator of the Parole Commission; Wade E.

French, Chief Probation Officer for the Eastern District of Texas;

Edward F. Reilly, Jr., Commissioner of the Parole Commission; Ron

C. Burkhart, Warden at the FCI in Fort Worth; and Kathleen Hawk,

Director of the Federal Bureau of Prisons. Also named as

Defendants were the United States Parole Commission and the Federal

Bureau of Prisons. We construe Cronn’s action as one brought

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics , 403 U.S. 388 (1971).

Cronn alleged that failure to hold a parole revocation hearing

was a denial of due process, that his sec ond arrest for parole

violation violated the Fourth and Fifth Amendments, and that his

illegal incarceration was cruel and unusual punishment in violation

of the Eighth Amendment. He claimed that Buffington, Haas,

Fitzgerald, Gray, Burkhart, and Reilly personally deprived him of

statutory and constitutional rights and that French and Haas also

knew of and acquiesced in this deprivation. He sought both

compensatory and punitive damages.

The Defendants moved for summary judgment, claiming they were1 F ED

. R. C IV

. P. 12(b)(6).

5

entitled to absolute and qualified immunity. The trial court

determined that Cronn had not been denied due process, rejecting

the decision by the Northern District of Texas as being improperly

decided and thus non-binding. Because it found that the federal

courts of appeal differed on whether a parole revocation hearing

could be held in abeyance, the court determined that there was no

clearly defined right to a revocatio n hearing under Cronn’s

circumstances. It explained that the absence of a clearly defined

right made it reasonable that the officials could believe that

their conduct towards Cronn was lawful. The district court granted

qualified immunity to all Defendants. Additionally it found that

only Ha as, Fitzgerald, and Buffington actually participated in

revoking Cronn’s parole and that the remaining Defendants could not

be held liable for damages on a r espondeat superior theory. The

district court dismissed the claims against those remaining

Defendants on the additional ground of failure to state a claim

upon which relief may be granted. 1

II.

W e review a grant of summary judgment de novo

. G anth er v.

Ingle

, 75 F.3d 207, 209 (5th C ir. 1996). Summary judgment is

proper when no issue of material fact exists and the moving party

is entitled to judgment as a matter of law. F ED

. R. C IV

. P. 56(c).

We view the facts and inferences in the light most favorable to the2 Heck v. Humphrey

, 512 U.S. 477, 486- 87 (1994); L ittles v.

Board of Pardons and Pa roles Div. , 68 F.3d 122, 123 (5th Cir.

1995). H eck applies to Bivens actions. S tephens on v. Reno , 28

F.3d 26, 27 (5th Cir. 1994).

3 Heck , 512 U.S. at 487.

4 Harlow v. Fitzgerald , 457 U.S. 800, 807 (1982).

5 Siegert v. Gilley , 500 U.S. 226, 231 (1991).

6 non-movant. F aruki v. Parsons S.I.P., Inc.

, 123 F.3d 315, 318 (5th

Cir. 1997).

III.

A.

To recover damages for an allegedly unconstitutional

revocation of parole, a plaintiff must prove that his conviction or

sentence has been reversed on direct appeal, expunged by executive

order, or called into question by a federal court’s issuance of a

writ of habeas corpus. 2 Unless the plaintiff can prove one of the

three criteria, his claim is not cognizable and must be dismissed. 3

Because the United States District Court for the Northern District

of Texas granted Cronn’s habeas petition, his Bivens claim for

damages from alleged illegal incarceration is cognizable.

T h e Defendants claim qualified immunity, which shields a

government official performing discretionary functions not only

from liability but also from suit. 4

The Supreme Court has clarified the proper analytical

framework for addressing a claim of qualified immunity. 5 Once a

defendant pleads the defense of qualified immunity, the trial judge6 Harlow , 457 U.S. at 818-819.

7 Anderson v. Creighton , 483 U.S. 635, 641 (1987).

8 Id. at 640.

9 Id

.

7 must first determine “whether the plaintiff has alleged a

constitutional violation at all” under current law. 6 If the

plaintiff h as done so, the judge then determines whether the

defendant’s actions were “objectively reasonable” with reference to

“clearly established law” at the time of the conduct in question. 7

For a right to be “clearly established,” its “contours ... must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right. ” 8 This does not mean that

prior cases must have held the particular conduct unlawful; “but it

is to say that in the light of pre-existing law the unlawfulness

must be apparent.” 9 Having laid out the framework for determining

if a plaintiff’s allegations are sufficient to overcome a

defendant’s defense of qualified immunity asserted in a motion for

summary judgment, we now turn to Cronn’s claims.

B.

Cronn first alleges that the absence of a paro le revocation

hearing followi ng the April, 1991 execution of the paroleviolator’s warrant unlawfully deprived him of his right to due

process. In ruling on his habeas petition, the district court

determined that Cronn’s const itutional rights had been violated.10 We do not necessarily agree with the district court’s

conclusion that Cronn’s constitutional rights were violated, but we

lack the power to review the validity of that decision because it

stands as a final judgment.

11 Morrissey v. Brewer , 408 U.S. 471, 485 (1972).

1 2 Although these sections were repealed effective October 12,

1984, they remained applicable for ten years for individuals whose

offenses were committed before November 1, 1987. Cronn’s offenses

fall within the applicable time period.

13 18 U.S.C. § 4214(a)(1)(B) (1985).

8 Cronn v. Burkhart

, 830 F. Supp. 946, 957 (N.D. Tex. 1993). No

appeal was taken from that judgment, and it is now final. 10 Id. at

957.

We therefore turn to the second prong of the Siegert analysis:

whether the Appellees’ conduct was objectively reasonab le under

clearly established law at the time of the conduct in question.

In 1972, the Supreme Court held that the execution of a

parole-violator warrant triggered a parolee’s due process rights to

a revocation hearing. 11 Following that decision, Congress enacted

the Parole Commiss ion and Reorganization Act of 1976, 18 U.S.C.

§§ 4201-4218 (“the Act”). 12 It required a hearing within sixty days

after a determination that there is probable cause to believe that

a parolee has violated a condition of his parole. 13 Two days after

Cronn was indicted and jailed for violations of the Texas

Securities Act, the Commission issued a warrant as a detainer.

When Cronn was released from state custody on April 3 , 1991, the

warrant was executed, and he was retaken into federal custody.14 Morrissey , 408 U.S. at 488.

9 A fter a probable cause hearing, the revocation hearing was

scheduled for June, 1991. That revocation hearing was never

conducted because Cronn was released from custody on May 3, 1991,

pending a resolution of the state charges, so that he could act as

a government informant in a telephone scam investigation.

Although the statutory language appears clear, i t in no way

contemplates th e situation which arises here. The statutory

language directs that a revocation hearing be conducted within

sixty days of the revocation of parole status because due process

requires an opportunity for a hearing before the final decision on

revocation is made by the parole au thority. The purpose of this

hearing is (1) to conduct a final evaluation of any contested

facts; and (2) to consider whether the facts as determined call for

th e revocation of parole and completion of the full jail term. 1 4

We recognize that Cronn did not rec eive the final hearing,

scheduled for June, 1991, following the determination of probable

cause. But the Defendants had good reason to believe that a

hearing was no longer necessary after the parole violation warrant

was withdrawn and held in abeyance, and Cronn was released on May

3, 1991. When Cronn was retaken into federal custody, he received

a timely revocation hearing on April 6, 1993, and he was given

credit for the month served in 1991. Based on these facts, and

taking into consideration the purpose of a revocation hea ring,15 See supra note 10.

1 6 Cronn’s parole violation warrant was withdrawn May 3, 1991,

and held in abeya nce pending the completion of his role as a

confidential informant and the resolution of the state securities

fraud charges against him. Ultimately, the warrant was

10 Cronn has failed to show that the Defendants violated clearly

established law in failing to go forward with the parole revocation

hearing once he was released and the warrant was withdrawn and held

in abeyance. Because the statute does not specify the fate of the

hearing once the parole revocation warr ant is withdrawn, and the

officials were not directed by clearly establish ed case law

regarding the proper course of action, we cannot conclude that the

officials violated clearly establishe d law by failing to proceed

with a revocation hearing under the circumstances.

C.

Cronn next alleges that the re-execution of the warrant that

was withdrawn and held in abeyance constituted a denial of his

Fifth Amendment due p rocess rights and a denial of his

constitutional rights under the Fourth and Eighth Amendments. The

district court held that Cronn’s constitutional rights were

violated as a result of the reissuance of the warrant, and that

decision stands as a final judgment. 15

We therefore turn to the second prong of Siegert

, which is

whether Cronn’s right to be free from the second execution of a

warrant that had been withdrawn and held in abeyance was clearly

established at the time the warrant was re-executed. 16supplemented with additional convictions of DWI and securities

violations, and was re-executed January 14, 1993.

17 Franklin v. Fenton

, 642 F.2d 760, 764 (3d Cir. 1980)

(holding that the date of issuance, not of execution, is critical);

United States v. Chancey

, 695 F.2d 1275, 1277 (11th Cir. 1982)

(holding that issuance of a warrant prevents the sentence from

expiring, and allows the Parole Commission to retain jurisdiction

to revoke parole); 28 C.F.R. § 2.44(d)(1977)(stating that issuance

of a parole violator’s warrant bars the expiration of a parolee’s

sentence and maintains the Commission’s jurisdiction to retake the

parolee before or aft er the normal expiration date of the

sentence.).

1 8 Still v. United States Marshal

, 780 F.2d 848, 851-53 (10th

Cir. 1985).

19 McConnell v. Martin , 896 F.2d 441, 446 (10th Cir. 1990).

11 At the outset, we note that a parole violation warrant may be

validly executed after the expiration of the violator’s original

jail term as long as it has been issued within that term. 17

We now examine the law as it then existed to assess what, if

any, “clearly established” legal standard governed the authority of

the Commission to withdraw an executed warrant, hold it in abeyance

pending disposition of other criminal charges, and re-execute that

w arrant. We find that five Circuits had addressed this or a

similar issue and had arrived at differing conclusions.

The Tenth Circuit determined that the Commission lacked the

statutory authority to withdraw a warrant once it has been executed

and to hold it in abeyance pending the di sposition of the state

charges which form its bas is. 1 8 A later Tenth Circuit case held,

however, that the Commission did have the authority to withdraw an

improperly executed warrant and issue a second one. 1920 Thigpen v. United States Parole Comm’n , 707 F.2d 973, 978

(7th Cir. 1983); Franklin , 642 F.2d at 763.

21 Thigpen , 707 F.2d at 977-78.

22 Id. at 976-77; 18 U.S.C. §§ 4213(b) & 4214(a)(1)(A)(i)

(1985) (both in effect during the period in question).

23 Thigpen , 707 F.2d at 976.

12 Both the Seventh and Third Circuits held that the Commission

may withdraw a previously executed warrant and hold it in abeyance

pending a final disposition of state criminal charges. 20 The

Seventh Circuit in Thigpen determined that there was no need to

issue a new warrant and that re-execution of the original warrant

was proper. 21 It reasoned that because the Commission may defer the

revocation hearing until the resolution of state charges an d may

restore a parolee to supervision even if probable cause for a

violation is found without a revocatio n hearing, the Commission

must be able to withdraw a warrant, hold it in abeyance, and then

re-execute it. 22 The Seventh Circuit recognized the “salutary

policy of allowing a suspected parole violator to clear himself of

state charges prior to his revocation hearing, thus avo iding the

necessity of his choosing between pleading his right against selfincrimination, making admissions against his interest, or

testifying falsely to exculpate himself.” 23

With this philosophy in mind, the Thigpen court thus called

for a commonsensical and policy-sensitive reading of the Act that

would yield the conclusion that the Commission may withdraw and re-24 Franklin , 642 F.2d at 763.

25 Thigpen , 707 F.2d at 977.

26 Donn v. Baer , 828 F.2d 487, 490 (8th Cir. 1987).

13 execute a warrant, and then conduct a revocation hearing.

The Third Circuit in Franklin came to a similar conclusion.

It recognized the Commission’s a uthority to withdraw a warrant,

issue a new warrant listing the same violations as the first, and

then hold that warrant in abeyance until the resolution of the

state charges. 24 The Seventh Circuit, in discussing Franklin

,

characterized the difference between the withdrawal and reissuance

of an old warrant and the issuance of a new warrant as

inconsequential. 25

The Eighth Circuit, in somewhat dissimilar circumstances, held

that the Commission does not possess implicit authority to withdraw

an executed warrant. 26 Sensitive to the policy concerns behind

holding a warrant in abeyance, the court found that when a warrant

was executed after the disposition of state charges, and then

withdrawn and held in abeyance to be re-executed later, the

concerns expressed by the Thigpen and Franklin courts were not

implicated. It did not, however, hold that the Commission had no

power to re-execute a warrant in other circumstances.

Finally, this Circuit’s only ruling regarding the Commission’s

authority to withdraw a warrant involved one executed contrary to27 Chandler v. Barncastle , 919 F.2d 23, 26 (5th Cir. 1990).

14 its terms. 27 The Commission issued a warrant to the United States

Marshal, with instructions to use the warrant as a detainer if the

parolee was already in state custody. Although the parolee was in

a state facility, the Marshal executed the warrant and placed the

parolee in federal custody. Almost a month later the Commission

realized the error, withdrew the warrant and replaced it as a

detainer. The Court held that the Commission has the authority to

have such an invalid warrant replaced as a detainer.

The conflicting Circuit decisions in effect at the time of

Cronn’s complaint indicate that no “clearly established” legal

standard existed, such that officia ls could determine that their

conduct

- the withdrawal, holding in abeyance, and re-execution of

a parole violation warrant

- violated Cronn’s rights. Because

there was no “clearly established” right to be free from seizure

under such a warrant, we affirm the district cour t’s judgment

granting summary judgment to the defendants based on the defense of

qualified immunity.

D.

We affirm, in addition, the district co urt’s dismissal of

claims against all Defendants other than Haas, Fi tzgerald, and

Buffington, due to Cronn’s failure to state a claim against them

upon which relief may be granted.

Because there is no doctrine of respondeat superior in Bivens28 See Abate v. Sout hern Pac. Transp. Co.

, 993 F.2d 107, 110

(5th Cir. 1993) (and cases cited therein).

29 Thompkins v. Belt , 828 F.2d 298, 304 (5th Cir. 1987).

30 Id

.

15 actions, 28 the supervisory federal officials named in the suit may

be held liable only upon two bases. First, personal involvement in

the acts causing the deprivation of a person’s constitutional

rights creat es personal liability. 2 9 Cronn has failed to state

facts that indicate this degree of involvement. Second, a

supervisory official may be held liable if he implements a policy

so deficient that the policy itself acts as a deprivation of

constitutional rights. 30 The record fails to reveal the existence

of such a policy. Because neither predicate for liability is

satisfied, we agree that Cronn has failed to state a claim against

the non-participating officials and that they w ere properly

dismissed pursuant to F ED

. R. C IV

. P. 12(b)(6).

For the foregoing reasons we affirm the j udgment of the

district court in all respects.

AFFIRMED.