UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL KONDROSKY,

Plaintiff-Appellant,

v.

DAN PIERCE, Sergeant,

No. 95-6695

Defendant-Appellee,

and

CARL R. PEED, Sheriff,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-1460-A)

Argued: March 8, 1996

Decided: April 29, 1996

Before ERVIN and NIEMEYER, Circuit Judges, and YOUNG,

Senior United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel Mark Zavadil, THE LAW OFFICE OF DANIEL M. ZAVADIL, P.C., Arlington, Virginia, for Appellant. John J.
Brandt, SLENKER, BRANDT, JENNINGS & JOHNSTON, Merrifield, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Kondrosky filed suit against Sergeant Daniel Pierce under

42 U.S.C. § 1983. The district court granted Pierce's Motion for Summary Judgment and Kondrosky appealed. Finding that Pierce is protected by qualified immunity, we affirm.

I.

Michael Kondrosky was arrested for driving under the influence of

alcohol in the early morning hours of September 9, 1994, and was

kept in a holding cell at the Mount Vernon Police Station for approximately four hours until it was safe for him to return home. Following

the arrest Kondrosky pled guilty to reckless driving and received a

60-day sentence with 59 days suspended. The Fairfax County District

Court ordered that credit was to be given for time spent in the holding

cell, satisfying the one-day sentence. However, upon his arrival at the

Fairfax County Detention Center, Kondrosky was informed he would

be required to serve a one-day sentence because the applicable statute

provided that credit will be granted only for pre-trial confinement in

a state or local correctional facility, a state hospital, or a juvenile

detention facility. See Va. Code § 53.1-187. The Mount Vernon holding cell did not qualify as a correctional facility as defined in the statute. Kondrosky protested this action and sought an amended order

directing that credit should be given. However, Sergeant Daniel

Pierce, supervisor of booking at the detention center, refused to credit

time spent in a holding cell and did not release Kondrosky until midnight, eight hours after he was booked into the facility.

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II.

Public officials who perform discretionary activities are entitled to

qualified immunity from civil damages if their conduct does not violate clearly established statutory or constitutional rights which a reasonable person should have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). In other words, qualified immunity turns on whether

the public official could reasonably have believed the challenged conduct was lawful. See Anderson v. Creighton, 483 U.S. 635, 638-39

(1987).

Processing individuals for incarceration or release according to the

terms of court orders does not generally involve the exercise of discretion. However, Pierce had to reconcile the court order and the Virginia Code to determine the length of Kondrosky's sentence. While

it is somewhat repetitive to say that any uncertain situation involves

the exercise of discretion, a public official implementing a facially

invalid court order should not be held liable if his actions otherwise

meet the test for qualified immunity.

Once this threshold is met, the first step in the analysis is to determine whether Kondrosky's allegations establish that Pierce violated

a right, and whether that right was clearly established. Kondrosky

refers to a constitutional right to credit for pretrial jail time, predicated

on the Fifth Amendment prohibition against double jeopardy. See

Durkin v. Davis, 538 F.2d 1037 (4th Cir. 1976). However, this right

is designed to avoid discrimination between those who can make bail

and those who cannot. See, e.g., Ange v. Paderick, 521 F.2d 1066,

1068 (4th Cir. 1975). It is inapplicable in this case because Kondrosky was detained for his and the public's protection, not for an

inability to make bail.

The most viable allegation is that Pierce deprived Kondrosky of his

procedural due process rights by detaining him in excess of the time

required by his sentence. The court order memorializing the plea

agreement provided that Kondrosky would be at liberty at the end of

the day. See also Baker v. McCollan, 443 U.S. 137, 144 (1979)

(wrongful detention is a deprivation of liberty). The remaining question is what process Kondrosky was due. In Parrat v. Taylor, 451

U.S. 527 (1981), overruled on other grounds, 474 U.S. 327 (1986),

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the Supreme Court held that a post-deprivation remedy under state

tort law was sufficient due process of law to negate a section 1983

claim for negligent handling of a prisoner's mail. The Parrat Court

emphasized that a pre-deprivation hearing was impossible because the

mishandling was unauthorized and unpredictable. In Zinermon v.

Burch, 494 U.S. 113 (1990), the Court extended the Parrat doctrine

to deprivations of liberty, but held that the availability of a claim for

false imprisonment did not block a section 1983 action against state

mental hospital staff because the state had an involuntary placement

procedure that provided pre-deprivation process.

In the instant case a pre-deprivation hearing was possible. Indeed,

the order of the Fairfax Circuit Court established a procedure that

Pierce was to follow if he wanted to change the length of detention.

Thus Kondrosky did allege a violation of his Constitutional rights.

This conclusion is supported by a review of circuit court decisions

that analyze whether prison officials properly determined the release

date of prisoners. Cf. Calhoun v. New York State Div. of Parole

Officers, 999 F.2d 647 (2nd Cir. 1993) (parole officers who held

inmate five days beyond original maximum expiration date without

a hearing violated inmate's due process rights); Slone v. Herman, 983

F.2d 107 (8th Cir. 1993) (prison official who refused to release

inmate after court order suspended sentence violated inmate's due

process rights); Sample v. Diecks, 885 F.2d 1099 (3rd Cir. 1989)

(incorrect computation of release date without a hearing violated

inmate's due process rights); Haygood v. Younger , 769 F.2d 1350

(9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986) (incorrect computation that prolonged detention without a hearing violated

inmate's due process rights). But cf. Toney-El v. Franzen, 777 F.2d

1224 (7th Cir. 1985), cert. denied, 476 U.S. 1178 (1986) (error in calculating release date did not violate inmate's due process rights).

Assuming arguendo that this due process right was in fact clearly

established at the time of the incident, we next consider the second

step in the qualified immunity analysis and view Pierce's conduct

from an objective viewpoint. Pierce had a duty to follow the Virginia

Code, which prohibited crediting time spent in a holding cell. See Va.

Code § 53.1-187. The record also reflects that there was an ongoing

controversy on this issue. When the local court credited time spent in

the Mount Vernon holding cell, Pierce's superiors approved disre-

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garding such orders in favor of following the Code. Pierce had done

so without apparent penalty. In this unusual factual context, a reasonable person in Pierce's position could have thought that refusal to

credit Kondrosky's one-day sentence for time spent in a holding cell

was not illegal. See Woods v. City of Michigan City, Indiana, 940

F.2d 275, 280-81 (7th Cir. 1991) (holding that police officers were

entitled to qualified immunity where Indiana law conflicted with bond

schedule issued by a state judge).

For the foregoing reasons Pierce acted reasonably and he is entitled

to qualified immunity. The judgment of the district court is

AFFIRMED.

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