Kirby v. SiegelmanKirby v. Siegelman
[PUBLISH]
Plaintiff-Appellant,
versus
Defendants-Appellees.
Plaintiff-Appellant,
versus
Defendants-Appellees.
Appeals from the United States District Court for the Middle District of Alabama
(November 17, 1999)
Before TJOFLAT аnd DUBINA, Circuit Judges, and THRASH*, District Judge.
PER CURIAM:
These cases, consolidated for appeal, involve challenges to Alabama‘s Community Notification Statute (“the Act“),
*Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by designation.
to the Community Notification Statute was not ripe. For the reasons set forth below, we affirm the district court as to Kirby because his claim is not ripe. We reverse the district court as to Edmond‘s due process claim because we find that Edmond‘s classification as a sex offender implicates a liberty interest under the Due Process Clause. We remand the case to the district court because the record is inadequаte for us to determine whether he received adequate notice and hearing to satisfy due process requirements. We affirm the district court as to Edmond‘s remaining claims.
I. FACTS AND PROCEDURAL HISTORY
A. KIRBY
Kirby is an inmate in custody of the Alabama Department of Corrections (“ADOC“). He is serving a 15 year sentence for first-degree sodomy. Kirby filed the present action under
The Act provides for notification of victims and neighbors of a criminal sex offender thirty days prior to his release from custody. Because Kirby is not scheduled for release until 2005, the district court adopted the Magistrate Judge‘s recommendation and found that Kirby has not yet suffered an injury from the Act. Accordingly, the court dismissed Kirby‘s claim as not ripe for adjudication.
B. EDMOND
Edmond is an inmate incarcerated by the ADOC. He is serving a 20 year sentence for attempted murder. He filed the present action under
ADOC classified Edmond as a sex offender based on two previous sex-related charges listed in his PreSentence Investigative Report (“PSI“). In 1984, he was charged with rape. The charge was no billed by the grand jury. In 1992, a charge of sexual abuse was nolle prossed in the trial court. According to ADOC Deputy Commissioner John Shaver, these two sex charges, even without a conviction, support Edmond‘s classification as a sex offender under ADOC guidelines. Shaver also stated that prison classification officials received details from the Russell County District Attorney‘s Office reflecting sexual abuse and kidnaping in Edmond‘s prior history. Shaver contends this prior history denotes a pattern of behavior further justifying the sex offender classification.
As a consequence of being classified as a sex offender, Edmond must participate in group therapy sessions of Sexual Offenders Anonymous as a prerequisite for parole eligibility. The sessions meet three times a week at the prison and involve participants admitting past sexual offenses. Edmond contends this requirement violates his right against self-incrimination. Additionally, being classified as a sex offender makes Edmond ineligible for minimum custody classification. Prisoners in minimum custody are eligible for certain work-releаse programs and community custody programs. Moreover, Edmond contends his classification as a sex offender imposes a stigma that amounts to a significant hardship
in relation to the ordinary incidents of prison life. Edmond contends he received neither notice nor opportunity to be heard prior to being classified as a sex offender. Defendants сontend that Edmond had an opportunity to be heard through his annual classification review, and that he will be eligible for minimum custody.
On Defendants’ motion,2 the district court adopted the recommendation of the
Edmond‘s challenge of Alabama‘s notification statute was not ripe because Edmond has not been released from custody.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same standard as the district court. See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (1998), reh‘g and reh‘g en banc denied, 172 F.3d 884 (11th Cir. 1999). Summary judgment is aрpropriate where, after viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
We also review de novo the district court‘s dismissal of a complaint for failure to state a claim upon which relief could be granted. See Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 948 (11th Cir. 1997). When considering a Rule 12(b)(6) motion to dismiss, a cоurt must accept the allegations in the complaint as true, construing them in the light most favorable to the plaintiffs. See Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998), cert. denied, — U.S. —, 119 S.Ct. 1027, 143 L.Ed.2d 38 (1999).
III. DISCUSSION
A. KIRBY
Kirby claims that Alabama‘s Community Notification Act3 constitutes retrospective punishment in violation of the Ex Post Facto and Double Jeopardy Clauses. Under the Ex Post Facto Clause, the government may not apply a law retroactively that “inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). The Double Jeopardy Clause prohibits, inter alia, “a second prosecution for the same offense after conviction...and multiple punishments for the same offense.” United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Because the Act will not affect Kirby until his release from prison in 2005, we agree with the district court that Kirby‘s claim is not ripe for adjudication.
As part of the “case or controversy” requirement of Article III, а party must suffer injury or come into immediate danger of suffering an injury before challenging a statute. See O‘Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Essentially, the ripeness requirement “prevent[s] the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The ripeness requirement prevents courts from interfering
with legislative enactments before it is necessary to do so, and enhances judicial decision-making by ensuring that cases present courts with an adequate record for
In Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3rd Cir. 1996), the Third Circuit thoroughly examined the ripeness requirement as applied to New Jersey‘s community notification law. Artway involved a convicted sex offender who sought an injunction against the enforcement of a New Jersey statute requiring certain convicted sex offenders to register with local law enforcement officials. Additionally, the statute provided for community notification upon the release of certain sex offenders. The district court upheld the registration component of the stаtute, but enjoined enforcement of the community notification provision. On appeal, the Third Circuit held that the challenge to the notification aspects of the statute was not ripe. We agree with the reasoning of the Third Circuit, and follow its analysis in considering the State‘s argument that Kirby‘s ex post facto and double jeopardy challenges are not ripe.
To begin with, the court must consider whether Kirby has suffered injury or come into immediate danger of suffering injury. Artway, 81 F.3d at 1246. This factor
inquires whether a credible threat of injury exists, or rather a mere speculative threat insufficient for Article III purposes. See Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). While pre-enforcement review is the exception rather than the rule, “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but prоscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Id. (internal quotations omitted).
Kirby‘s challenge to the notification provision of the Act cannot meet this element of the ripeness requirement. For the notification provision to affect Kirby, there exists a “crucial contingency,” Artway, 81 F.3d at 1248, in that the Act must remain in effect and unamended until 30 days prior to Kirby‘s release from prison in the year 2005. Whether this contingency will occur is a matter of speculation. The Court may not pass upon hypothetical matters. Moreover, Kirby faces no hardship from denying review of his notification challenge at this point; he is not going anywhere and his prior arrest and conviction record is not going to change. Accordingly, we affirm the district court‘s dismissal of Kirby‘s claim on ripeness grounds.
B. EDMOND
Edmond claims that the procedures by which he was classified as a sex offender were insufficient to satisfy the requirements of the
With any procedural due process challenge, we first determine whether the injury claimed by the plaintiff is within the scope of the Due Process Clause. Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999). The Due Process Clause protects against deprivations of “life, liberty, or property without due prоcess of law.”
is entitled to due process prior to being transferred to a mental hospital). The second situatiоn is when the state has consistently bestowed a certain benefit to prisoners, usually through statute or administrative policy, and the deprivation of that benefit “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (prisoners may not be deprived of statutory “good-time credits” without due process). In the first situation, thе liberty interest exists apart from the state; in the second, the liberty interest is created by the state. Bass, 170 F.3d at 1318.
In this case, the state has not created a liberty interest. It is beyond dispute that state statutes and regulations may create liberty interests that are entitled to the procedural protections of the Due Process Clause. See Vitek, 445 U.S. at 488, 100 S.Ct. at 1261. For example, there is no constitutional right to parole. See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Nevertheless, once a state grants a prisoner the conditional liberty dependent on the observance of special parole restrictions, due process protections attach to parole revocation. Vitek, 445 U.S. at 488, 100 S.Ct. аt 1261. This case is different. Alabama has not created a liberty interest in not being classified as a sex offender absent a conviction for a sex related crime. Indeed, the
ADOC regulations specifically declare otherwise. In pertinent part, the regulations provide that “inmates with two or more arrests of record for sex crimes for which the disposition is unknоwn or given as dismissed, no billed, nolle prossed, etc., will be construed as sex offenders for the purpose of classification. Cases adjudicated as not guilty will not be counted.” [R. 13, p. 4]. Thus, Edmond did not “possess any right or justifiable expectation” based on state law that he would not be classified as a sex offender. Vitek, 445 U.S. at 489, 100 S.Ct. at 1261.
We conclude, however, that Edmond does have а liberty interest in not being branded a sex offender. The Supreme Court has held that when a change in the prisoner‘s conditions of confinement is so severe that it essentially exceeds the sentence imposed by the court, a prisoner is entitled to some procedural protections. Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; Vitek, 445 U.S. at 492-93, 100 S.Ct. at 1263-64. “There is no iron curtain drawn between the Constitution and the prisons of this country” and “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff, 418 U.S. at 555-56, 94 S.Ct. at 2974-75. Even after Edmond‘s conviction for attempted murder, he retains a “residuum of liberty” that would be infringed by classification as a sex offender without complying with minimum requirements of due process. Vitek, 445 U.S. at 491, 100 S.Ct. at 1263.
We find support for our conclusion in Vitek v. Jones, supra. There, prisoners challenged a Nebraska statute authorizing рrison officials to classify inmates as “mentally ill” without a hearing and transfer them to hospitals for involuntary confinement. Vitek, 445 U.S. at 483-86, 100 S.Ct. at 1259-60. The Supreme Court undertook a thorough examination of the liberty interest implicated by the statute. The Court first held that the state law created an “objective expectation” that a prisoner would not be transferred unless he suffered from a mental illness that could not be adequately treated in prison. This objective expectation gave the prisoners a liberty interest entitling them to appropriate procedures in determining the conditions
The Court also noted that one of the historic liberties protеcted by the Due Process Clause is the right to be free from unjustified intrusions on personal security. Id. quoting Ingraham v. Wright, 430 U.S. 651 (1977). The compelled treatment through mandatory behavior modification programs, to which the prisoners in Vitek were exposed, was a proper factor to be considered by the district court. Id. The Court concluded that “the stigmatizing consequences of a transfer tо a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.” Id. at 494, 100 S.Ct. at 1264.
Likewise, in this case, the stigmatizing effect of being classified as a sex offender constitutes a deprivation of liberty under the Due Process Clause. As noted by the Ninth Circuit, “[w]e can hardly conceive of a state‘s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender.” A.J. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997). An inmate who has never been convicted of a sex crime is entitled to due process before the state declares him to bе a sex offender. Having concluded that Edmond has a protected liberty interest in not being classified as a sex offender, the question becomes whether he received due process in conjunction with the deprivation of that interest. As noted above, the factual record is insufficient for us to decide this question. Accordingly, we remand
this case to the district court for further proceedings consistent with this opinion. We affirm the district court with respect to Edmond‘s other claims.
IV. CONCLUSION
In Case No. 98-6236, the judgment of the district court is AFFIRMED. In Case No. 98-6672, the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART. The case is REMANDED to the district court for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED in part.