UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Mark Zavadil, THE LAW OFFICE OF DAN-
IEL M. ZAVADIL, P.C., Arlington, Virginia, for Appellant. John J.
Brandt, SLENKER, BRANDT, JENNINGS & JOHNSTON, Merri-
field, 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Unpublished opinions are not binding precedent in this circuit.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 Sum-
mary Judgment and Kondrosky appealed. Finding that Pierce is pro-
tected 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 approxi-
mately 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 hold-
ing cell did not qualify as a correctional facility as defined in the stat-
ute. 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 mid-
night, eight hours after he was booked into the facility.

                     2
II.

Public officials who perform discretionary activities are entitled to
qualified immunity from civil damages if their conduct does not vio-
late clearly established statutory or constitutional rights which a rea-
sonable 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 con-
duct 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 dis-
cretion. However, Pierce had to reconcile the court order and the Vir-
ginia 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 deter-
mine 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 Kon-
drosky 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 ques-
tion is what process Kondrosky was due. In Parrat v. Taylor, 451
U.S. 527 (1981), overruled on other grounds, 474 U.S. 327 (1986),

                      3
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) (incor-
rect 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 cal-
culating 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-

                     4
garding such orders in favor of following the Code. Pierce had done
so without apparent penalty. In this unusual factual context, a reason-
able 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.

                    5
