William Thornton v. Edmund G. Brown, Jr

v. Union Green See benefits. denial of (8th Cir. Ins., F.3d

Sec. reviewing for abuse role

Our “weigh evidence is

discretion 1053. Id. at a decision. render

anew” and person a reasonable whether only ask

We Medtronic decision reach

could sup was the decision and whether

reached the rec evidence

ported substantial at 897. Under Midgett,

ord. See district standard, agree with we its did not abuse Medtronic

court that for claim Waldoch’s denying

discretion LTD benefits.

“any occupation”

III. court district

The

affirmed. THORNTON, Cecil

William

Plaintiff-Appellant, BROWN, Jr.,* Governor

Edmund G. Secretary Cate,

California; Matthew Doe, Corrections; Lewis, Pa John Joseph, Supervisor; Mark

role Unit Cavalin, Pa Agent; Christine

Parole 1, Parole Agent; Doe # John

role Defendants-Appellees.

Agent, 11-56146.

No. Appeals, States Court

United

Ninth Circuit. 9, 2012. Nov.

Argued and Submitted July

Filed 18, 2014.

Amended Feb. * of Cali- Brown, Jr., Schwarzenegger, as Governor sub- Arnold G. Edmund Honorable The 43(c)(2). R.App. P. Fed. fornia. predecessor, Honorable stituted (argued)

Karen Craig Gal-Or E. Stewart, Day, Francisco, CA, Jones San for Plaintiff-Appellant. Zelidon-Zepeda (argued), Jose A. Depu- ty General; Attorney Harris, Kamala D. Attorney California; General of Jonathan Wolff, L. Senior Assistant Attorney Gener- al; Patterson, Thomas S. Supervising Dep- uty Attorney General, Francisco, CA, San for Defendants-Appellees. L.Ed.2d 439 result, panel To reach this precedent misapplies BRIGHT,** H. MYRON Before: Circuit, as with the Seventh split creates a GRABER, and S. SANDRA P.

SUSAN compelling dis- Judge Ikuta’s described IKUTA, Judges. Circuit emphasize important I write to sent. concerns practical and federalism by Judge to Dissent Order en banc. rehearing this case warranted O’SCANNLAIN; by Judge Opinion GRABER; by Judge IKUTA. Dissent I O’SCANNLAIN, Judge, joined Circuit question appeal The central BEA, CALLAHAN, and BYBEE, by may chal- Thornton whether William Cecil dissenting from IKUTA, Judges, Circuit conditions under U.S.C. lenge his banc: rehearing en of the denial petition he must instead or whether To a casual corpus. of habeas for a writ ORDER trivial, observer, but appear this issue dissenting opinion, filed and opinion The statutory and framework as the relevant published at 724 F.3d July on clear, the precedents make Supreme Court opinion by the amended replaced are directly implicates question to this answer filed con- dissenting opinion amended for system’s respect our constitutional these this order. With currently with the limitations Con- sovereignty and state amendments, Judges Bright and Graber judicial power. gress placed has on federal panel for deny petition voted to have observed, Supreme Court has As the Ikuta has voted to Judge rehearing, and “frustrates both federal habeas review deny has to Judge voted it. Graber grant banc, punish offend rehearing sovereign power en for States’ petition Judge to honor good-faith attempts so recommended. their Bright has ers and Judge grant it. voted to rights.” Ikuta has Calderon constitutional 538, 555-56, 118 S.Ct. Thompson, 523 U.S. has been advised of full court The (1998) (internal L.Ed.2d 728 rehearing judge en A of banc. for petition omitted). a feder marks When quotation for a vote on whether court called authority to review state al court has vote, en bane. On such the matter rehear matters, it “intrudes on state sov criminal judges active majority the nonrecused of matched few exer ereignty degree to a rehearing. in favor of en banc failed to vote authority.” Har judicial cises of federal rehearing and panel for petition — -, Richter, U.S. rington rehearing banc are DE- for en petition (2011) 770, 787, 178 L.Ed.2d 624 S.Ct. re- petitions panel further for NIED. No 255, 282, Reed, Harris v. (quoting rehearing for en banc hearing petitions or L.Ed.2d 308 entertained. shall be J., dissenting)). (Kennedy, Today, panel disregards of our Court that state courts to “confirm In order “strong comity” be- considerations asserting for con- forum principal are the States, grasp- federal courts and the tween confine- to state challenges” stitutional it is “difficult ing power itself where dramatically restricted ment, Congress has stronger inter- imagine ... a State has a petitioner AId. habeas review. federal Rodriguez, est.” Preiser v. ** Judge for the United Bright, cuit Myron Senior Cir- The Honorable H. a writ from a federal

seeking ereignty court must are obvious. State decisions attempt present “first claim state about parole subject conditions will now be Moreover, court.” Id. a federal court can to far-reaching and searching review by corpus only issue a writ of habeas where federal in our circuit. courts Rather than state court’s “resulted in a deci- reserving judicial federal intervention for to, sion contrary that was or involved an cases of “extreme malfunctio[n]” state of, application clearly unreasonable estab- penal systems, as is the case with habeas — lished Federal as determined review, Titlow, U.S. -, Burt v. the United States” (2013) (alter “resulted in a decision that was based on Richter, ation in original) (quoting unreasonable an determination the facts 786), judicial S.Ct. at federal involvement in light of the presented evidence in the in the setting conditions will now State court proceeding.” 28 U.S.C. become As Judge routine. Ikuta’s dissent 2254(d)(l)-(2). § way, Congress this convincingly argues, challenges judicial has curtailed federal interference conditions fall within the purview of the “sovereign power with State’s punish statute, federal habeas with all its attend Thompson, offenders.” 523 U.S. ant on our power. By limitations instead S.Ct. permitting such challenges to be brought § under contrast, panel the By has worked “a power the of federal courts major § new in intrusion into state greater sovereignty 1988 suits is far the —and intrusion on under our sovereignty system,” state far more federal Maine v. Thi boutot, significant. 1, 33, Unlike a petitioner, U.S.

plaintiff suing (Powell, under 1983 bypasses J., the L.Ed.2d 555 dissenting), system goes state court directly to something Congress expressly sought to Patsy federal court. Regents, Bd. 457 avoid. 496, 500-01, U.S. 102 S.Ct. II (1982); L.Ed.2d 172 Thompson, Steffel 452, 472-73,

415 U.S. The consequences of the panel’s decision L.Ed.2d 505 Absent is notion the go beyond its disregard of fundamental proceedings “state are the central principles. federalism key One the dif- process,” they are in the habeas con ferences habeas and between 1983 ac- Richter, text. 131 S.Ct. at 787. And tions is that the latter holds out pros- federal whereas habeas review entails def pect attorney’s fees for a prevailing erence to a state court unless 1988(b). plaintiff. 42 U.S.C. See As that judgment “beyond any possibility federal courts have observed on numerous id., disagreement,” fairminded no such occasions, awarding attorney’s fees in deference to the States exists in 1983 § litigation encourages would-be reasons, For suits. these and other plaintiffs bring might suits that other- § 1983 suits involve “a problem basic of wise never make into court because federalism,” Pape, American Monroe v. counsel have a financial incentive to under- L.Ed.2d See, take e.g., such cases. Dennis v. (1961) (Frankfurter, J., dissenting), (9th Chang, 611 F.2d 1306-07 Cir. especially and this is true context 1980). That incentive is conspicuously systems. state penal Thompson, 523 Cf. actions, lacking in habeas which means 555, 118 S.Ct. 1489. that the effect likely panel’s decision Against background, this implica- will be a of parolees rush to the federal panel’s tions decision for sov- steps. state courthouse if it is by Heck is not barred an action increase predictable Given the fact on either attack produce, will collateral opinion panel’s litigation or as a confinement parolee’s to articulate panel expect would one sen- underlying conviction or will deter- parolee’s courts district litigants and how Plain- brought in we conclude must be Because tence. mine when attack, re- coy, offer- we remains not such an panel But the tiffs action habeas. may not be what or hints at remand. ing only verse cases. future considerations relevant BACKGROUND mys- is a standard proffered panel’s of this the district courts tery, one Registration Offender Sex California’s now to struggle solve. must circuit offend- convicted sex certain requires Act offi- law enforcement register with ers to regretta- dissent from our respectfully I they in which in the communities case en cials not to rehear ble decision 290(c), §§ Code reside. Cal.Penal banc. 290.005(a). Predator Sexual California’s OPINION Act of 2006—also and Control Punishment Proposition as Jessica’s Law known GRABER, Judge: Circuit ap- requirements that imposes several 83— rights action In this civil offenders, who, are as sex ply parolees Cecil Plaintiff William U.S.C. of register. One duty that subject to brings a constitutional Thornton residency restric- is a requirements those of two and enforcement imposition to the who is person which a according to tion residency re- parole: a of his within may not “reside register required to that he submit requirement and a striction school, or any public private or of 2000 feet using a Global monitoring to electronic regularly gather.” where children park (“GPS”) Cit- System device. Positioning 3003.5(b). requirement Another Id. 475, Rodriguez, 411 ing Preiser v. who is convicted any person that 36 L.Ed.2d 93 S.Ct. by as defined sex offense” “registerable 512 U.S. (1973), Humphrey, and Heck 290(c) which enumerates section section —a 477, 487, 129 L.Ed.2d under California offenses various sex that (1994), court the district concluded monitoring submit to electronic law—must fed- the exclusive provided corpus habeas device, of the duration either for by a GPS and dis- Plaintiffs claims remedy for eral life. Id. parole or person’s that Rule of under Federal the action missed 3004(b). De- 3000.07(a), The state’s §§ 12(b)(6) to state for failure Civil Procedure Rehabilitation partment of Corrections a claim. discretionary (“the also has Department”) directly has not Court The to submit any parolee authority require Heck doc- application considered the 3010(a) monitoring. See id. to electronic challenge con- actions that trine may uti- [Department] that “the (providing courts of Among the parole. of ditions monitoring to electronic lize continuous has done only the Seventh Circuit appeals, of electronically monitor the whereabouts Milligan, 552 F.2d so, Drollinger v. parole”). on persons (7th Cir.1977), con- which considered court ruled trial In a California v. Wis- and Williams probation, ditions 3003.5(b)’s residency restric- (7th Cir.2003), section consin, which F.3d 576 sex tion, registered applied all when Consis- parole. considered conditions condition, as a “blanket” offenders precedent with Supreme tent Taylor, re In was unconstitutional. circuit, that such we hold our that of sister Cal.Rptr.3d (Ct.App.2012). 67-68 enforcing those conditions in an arbi- appellate court affirmed the trary lower court’s or discriminatory manner. The dis- order, prohibited the “blanket en- that, trict court reasoned parolee, as a restriction”; residency forcement of the Plaintiff custody” was “in within the mean- but the court also Depart- held ing of statute, the federal habeas corpus “may, ment after parol- consideration of a U.S.C. 2254. It that, further reasoned circumstances, particularized ee’s impose a doctrine, under the Heck petition special parole condition that mirrors sec- the exclusive means which Plaintiff 3003.5(b) tion or one is more or less can a condition of parole. restrictive.” Id. 83-84.1 Accordingly, the district court dismissed the claim. pleaded guilty

In Plaintiff in Ten- battery. nessee to sexual he was Plaintiff timely appeals. We review de convicted in of buying or receiv- legal novo the presented issues here. ing property stolen and was sentenced to a Barker v. Cnty. Educ., Riverside Office of 16-month term of imprisonment. Califor- (9th Cir.2009). requires nia law a period supervised following release such a DISCUSSION term, CaLPenal Code and when Immunity A. Plaintiff was released in June he Plaintiffs against claims the Gover three-year parole received a Citing term. nor, the Secretary Corrections, and a previous offense, Plaintiffs Tennessee Supervisor Parole Unit are limited to in Department imposed, parole conditions, junctive relief. See Dep’t Will Mich. monitoring requirement GPS (pursuant Police, State Code) to section 3010 of the Penal (citing Elev prohibiting restriction him from enth Amendment considerations and hold living within 2000 feet of parks schools or ing that permit 1983 does not suits for where gather (pursuant children to section states); damages against Doe v. Lawrence 3003.5(b)). Plaintiff was later convicted Lab., 836, Livermore Nat’l 131 F.3d 839 robbery three-year and was sentenced to a (9th Cir.1997) (holding that “state officials prison offense, term for that pursuant sued their official capacities are not California Penal Code section 1170. ‘persons’ within meaning 1983” Again, California law required a term of except when “sued for prospective injunc parole to follow his sentence. CaLPenal relief”). tive Neither absolute nor quali Code he was in prison, While immunity fied bars Plaintiffs claims Department parole issued new conditions See, against those defendants. e.g., Buck apply upon that would his release. Those Exam’rs, walter v. Nev. Bd. Med. 678 conditions included the same GPS monitor- (9th Cir.2012) (“Absolute F.3d ing requirement restriction. immunity is injunctive not a bar to During term, his second Plaintiff relief.”); Barrett, declaratory Vance filed this action under 42 U.S.C. (9th Cir.2003) (“[A] F.3d 1091 n. 10 seeking monetary injunctive both re- qualified defense of immunity is not avail lief. alleges Department He that the vio- relief.”). injunctive able for prospective lated his rights by imposing constitutional monitoring the GPS requirement immunity and resi- Absolute does bar Plain dency parole restriction as damages conditions and tiffs claims for against parole his Supreme granted 1. The Taylor, Court has Cal.Rptr.3d In re 290 P.3d petition ruling. state's for review that that condition—an implemented fendants allegedly unconstitu- imposing for officers supervisory of their function. Ab- element We have held conditions. parole tional apply immunity solute therefore does immunity pa- “extend[s] absolute enforcement-based claim. to Plaintiffs ‘imposition parole for role officials ” However, the district court also dismissed “integral- that task is conditions’ immunity. qualified this claim as barred grant decision to to an official’s ly related Plaintiff does not appeal, On “quasi-judi- which is parole,” or revoke him ruling except to the extent that bars California, 384 cial” function. Swift Cir.2004) (9th injunctive Because pursuing from relief. (quoting F.3d (9th immunity injunctive qualified does not bar Boyd, Anderson v. Vance, relief, Cir.1983)). F.3d at 1091 n. Plain- cur- Both non-monetary tiff assert his claim through par- were rently in effect discriminatory arising allegedly from the discretionary decisions ticularized parole conditions. enforcement of his The GPS condition was officers. dis- Department’s imposed pursuant Heck B. Doctrine authority under section 3010 of cretionary Code,2 Penal and the resi- in respect the California to his claims for With “mirrors” section dency relief, restriction junctive question remains which, 3003.5(b), interpreted by the Cal- appropriately brought Plaintiff whether courts, permits such a condition ifornia those claims under 1983 instead of of a parolee’s consideration corpus. “after through petition Taylor, circumstances.” particularized subject custody to state Persons Accordingly, at 83-84. Cal.Rptr.3d generally potential “have two avenues to absolutely are immune officers remedy violations of their federal constitu to Plaintiffs claims for dam- respect with rights: petition tional a habeas under 28 imposition from the of those ages arising under 42 U.S.C. and a civil suit conditions. § 1983.” v. Dist. Attor U.S.C. Osborne (9th immunity does not ex Absolute ney’s Office, 423 F.3d Cir. tend, 2005) Heck, to Plaintiffs claim that the though, (citing Preiser, enforced the conditions of officers “ unconstitutionally in an arbi to which Court addressed ‘the extent discriminatory manner. Parole trary or alternative to the permissible 1983 is “immunity arising for conduct remedy corpus,”’ officers’ traditional of habeas (9th duty supervise parolees Chase, 1024, to is from their Docken v. 393 F.3d 1027 Anderson, Cir.2004) Preiser, 500, 714 F.2d at 910. qualified.” (quoting 411 U.S. at allegation 1827), that the implic § Plaintiffs officers en that 93 S.Ct. held 1983 residency against coverage restriction claims that itly forced excludes from its against similarly corpus,” him pa but situated lie “within the core of habeas Preiser, 487-88, 411 rolees relates to the manner in which De- U.S. at 93 S.Ct. 1827.3 3000.07(a) 3004(b) Although Department’s under sec- sections cise of the discretion require Penal Department Code tion 3010. impose monitoring a GPS condition for parolee "registerable convicted of a of- Supreme sex Court rested this conclusion 3. The 290(c), fense” under language section that subsection “the of the on its observation that Thus, only specific, lists crimes under and the writ’s California law. habeas statute is more condition, traditionally history 'has Plaintiff’s which relates to a con- makes clear that accepted specific viction as the instrument under Tennessee an exer- been reflects

841 may may § asserted unless its success Thus, custody in state 1983 be who is person claimant very fact would release the from confine- § “the not use Preiser, duration, or its by seeking ment shorten of ... confinement” or duration 500, 1827, to im 93 S.Ct. or would neces- that he is entitled U.S. “a determination sarily imply invalidity of the conviction release from speedier release or a mediate Heck, sentence, an in 512 U.S. at example, imprisonment” that —for Dotson, also grant officials to S.Ct. 2364. See Wilkinson junction requiring prison 74, 81, his 544 U.S. 125 S.Ct. that would shorten good-time credits (explaining that Preis- 1827. L.Ed.2d 253 term. Id. at S.Ct. § if Heck, the ex er and Heck bar a 1983 claim elaborated on In the Court Preiser, in a re- holding “speedier in that a claim will either result set forth ception custody judicial from or “a determi- may not maintain a 1983 lease” prisoner state necessarily implies if in favor nation that the unlaw- damages judgment for “a claim custody”).5 necessarily imply the fulness of the State’s plaintiff would invalidity of his conviction or sentence” “in custody” A state judgment that has respect prior with to a statute, of the federal purposes habeas Heck, 512 previously. nullified not been 236, 243, Cunningham, Jones v. 371 U.S. 487, 114 S.Ct. 2364. U.S. (1963), and 83 S.Ct. 9 L.Ed.2d 285 cognizable may challenge parole claims that are

Not all department state correctional precluded are from 1983’s habeas rather, standard; through petition under 28 U.S.C. there habeas scope under Bagley Harvey, the same constitu are “instances where Cir.1983). (9th But neither we nor might be redressed under 922-23 rights tional previ has addressed v. McDon either form of relief.” Wolff whether, nell, ously or under what circum Osborne, stances, (1974); implicit exception Heck’s see also L.Ed.2d 935 Here, to such a claim. we (rejecting applies “the notion that a F.3d at 1055 claims, that Plaintiffs brought can be hold claim which habeas”).4 conditions, Thus, fall within two do not brought must be enjoin custody” exception, “in plaintiff fact that a monitoring of his GPS re petition ing file a habeas enforcement and therefore restrictions will challenging quirement the unlawfulness of that custo itself, the “fact or duration” of his not, whether neither affect dy does determine Instead, “necessarily imply” nor the invalidi claim is available. or sentence. statutory ty criteria of of his state-court conviction claim that meets the little, any, disagreement if be- confine- 5. We discern [unlawful] obtain release from ” Dotson, understandings ment.' Wilkinson v. tween our and the dissent’s (2005) (alter- governing principles. dissent dis- these Preiser, original) (quoting ation in 486-87, 411 U.S. at detail, the facts of Dotson in some but cusses particularly those facts rele- we do not find Dotson, plaintiffs vant to this case. Preiser, 499, S.Ct. 4. See also 411 U.S. at § prisoners sought, a ac- were who in may § (noting that habeas tion, entitled them to a relief that would have challenge prison provide means to alternative challenge parole hearing. They new did not Switzer,- U.S. -, conditions); Skinner v. might accompany any parole that conditions 1299, 1289, 131 S.Ct. 179 L.Ed.2d 233 prison. from their eventual release question (raising, deciding, without remedy, or even whether “habeas the sole [is] one,” claims). types for certain an available hand, the one and the “conditions” of im only appeals federal court of to have hand, prisonment, to the conditions a distinc applies decided how Heck on the other is custody form of is the non-physical Supreme precedent tion that has Circuit, which addressed the issue prisoner may challenge Seventh created: a Drollinger, in 552 F.2d 1220. In dismiss- only or imprisonment “fact” “duration” of ing probationer’s a state 1983 claim chal- a through proceeding, habeas but lenging probation, a condition of her challenge “conditions” of confinement in an court the crux of the issue: “Be- Heck, identified action under 1983. 512 U.S. at by nature con- probation cause is its less 2364; Preiser, incarceration, fining than the distinction 500, at 93 S.Ct. 1827. Nor is it difficult to fact between the of confinement and the See, in apply that distinction most cases. necessarily conditions thereof is blurred.”6 Maddox, 1016, e.g., Roles 439 F.3d Id. at 1225. However “blurred” this line (9th Cir.2006) (holding challenge 1017-18 that a blush, might at in appear first California magazines to the confiscation of in parolee’s legally factually status is dis- confinement, pertains to a condition of parole. tinct from his “In conditions 1983, properly brought which is California, parolee status carries distinct cases); Small, collecting Nonnette v. disadvantages compared when to the situa- (9th Cir.2002) (“It 872, has law-abiding People tion of the citizen.” thirty years been clear for over that a Lewis, Cal.App.4th Cal.Rptr.2d injunctive prisoner seeking state relief parolee A remains a against good- the denial or revocation of “prisoner” under California law and is sub- proceed time credits must cor ject jurisdiction at all times to the 1983.”); pus, and not under Bennett v. Department, may impose or alter (9th Cir.2002) King, 293 F.3d conditions will for the duration of the (holding that a claim concerning harass parole.7 term of Id. The conditions im- by prison guards challenge ment to posed Department, like those chal- confinement, condition of properly which is here, lenged simply are an exercise of that brought under The same line jurisdiction, which remains unaffected must be drawn for as for incarcera particular even a successful because, above, explained tion as in Cali placed parolee.8 conditions on the simply fornia a less onerous form Moreover, imprisonment parolee the distinction between the and the is still “fact” imprisonment, and “duration” of on a prisoner. considered (Jan. 2013) noting Drollinger 6. It (providing bears involved a 81010.16.1-19.1 probation, to a condition of a status parole agent authority modify has the that the Court has held to be less impose special orally, new imprisonment parole. akin to than Samson v. time, long provided as written notice is California, 547 U.S. 850 & n. days). within five (2006) ("As 165 L.Ed.2d 250 we noted Knights, States v. [United 8.Indeed, contrary view would lead to an (2001))], arbitrary incongruity scope of available parolees are on the 'continuum' for state- potential remedies: Prisoners would have two continuum, imposed punishments. On this challenge aspects custody, means to of their parolees expectations privacy have fewer parolees We whereas would have one. probationers, than is more exception see no need to allow the Preiser imprisonment probation akin to than is to pro- swallow the rule that 1983's broad text imprisonment.” remedy vides a for unlawful conditions of See, e.g., Department Correc- confinement. Operations tions and Rehabilitation Manual on a claim Here, challenge plaintiffs his er a success Plaintiff does not question call into a would state court’s the duration of his as a or status Heck, 512 & judgment. See 484-86 and, in this if he succeeds even (relying on a common- n. S.Ct. 2364 action, parole conditions nearly all of his against rule “collateral attack on [a law in effect. Those conditions remain will through the vehicle of conviction criminal] and testing alcohol drug include “ determining a civil suit” and treatment; psychiatric and behavioral general principles, which borrowed tort travel, employ- limitations on counseling; permit not meant to such collateral was individuals, ment, with certain association (internal quotation marks omit- attack” businesses, and the of certain patronage ted)). have held that a claim does not We vehicles; curfew; numer- motor use of “necessarily imply” invalidity the of a con- require- registration ous sex-offender under Heck unless its viction sentence ments; robbery to contact his duty not “inevitably” question success will call into victim; restrictions. In these and other the state court that led to the circumstances, challenge we hold that his Osborne, plaintiffs custody. 423 F.3d at threaten conditions does not to two Dotson, 78-82, (citing 544 U.S. at a parolee. his “confinement” as See view, Consistent with this Jones, 83 S.Ct. 373 Circuit, in Drollinger, concluded Seventh into (explaining parolee’s that a “release” that habeas relief the exclusive relief was custody control of the Parole challenge probation available to condition significant Board “involves restraints on imposed under Indiana law after de- of his con- parolee’s] liberty because [the that, termining the chal- state sentence, are in addition viction and lenged part condition was of the sentence imposed by upon the State to those by the state court: Thus, even if the line public generally”). au- analysis Our of the Indiana statutes of confinement and between conditions granting probation thorizing the in some the fact thereof be “blurred” placing ... [that] [i]n demonstrates cases, clear that Plaintiffs claims it is trial court is probation defendant on “speedier release” this case do not seek impose conditions concern- required to meaning from his confinement within the defendant ing the manner which § exception of Preiser’s 1983.9 plain- must conduct himself.... [The challenge to the conditions of her tiffs] Moreover, challenges Plaintiff is, therefore, an attack on probation discretionary of the De- only the decisions the trial court. sentence of monitoring partment imposing GPS (citations omitted).10 F.2d at 1224-25 restrictions, his success imply invalidity of his con- would not distinguishable from Drol- This case The focus of the Su- linger, though, viction or sentence. because the condi- not challenges tions that Plaintiff were inquiry in Heck was wheth- preme Court’s rely condi- and we on the number of We not and do not decide whether we do 9. need holding. We challenged to reach our tions would reach a different result were Plaintiff challenge quite merely Plaintiff’s note that challenging portion of his all or a substantial specif- is focused on the nature of narrow and our conditions. The dissent declares parole, rather than on ic conditions parolee’s holding "unworkable” because parole’s existence or its duration. parole conditions or more arguably to a to the could amount Drollinger was decided before the fact her itself. Like the of his or Heck, dissent, Circuit did approach, so the Seventh we eschew a numerical Court issued 844 Dotson, in judgment. of a court that were at issue Preiser.

imposed part as Cf. Rather, (holding the GPS 544 U.S. Department the pursuant exception to its Preiser’s does not bar a monitoring requirement section claim “relief that authority seeking under will render inval- discretionary Code, Department procedures” and the id the state that relate to a of the Penal pursuant prisoner’s custody restriction but would not necessari- imposed the permitted ly require early prison assessment release from the to the individualized sentence). 3000.5(b), in interpreted Tay- as Because his to dis- section lor, if cretionary Department at 67-68. Even decisions of the Cal.Rptr.3d successful, claims will have no will not affect his court-imposed prison Plaintiffs sentence, including criminal term or result in release from parole, effect on his in parole. possible the duration of his Because Plain- Plaintiffs success this action challenges only discretionary “necessarily imply” tiff the deci- would not the invalidi- body, ty any judgment.12 sions of an administrative it is unlike state-court We need the Indiana condition considered not and do not decide probation whether we would Drollinger.11 judgment in And because a Depart- reach different result had the in merely implemented Plaintiffs favor would neither shorten ment a parole condi- judgment nor alter sentence or of a tion that required by was statute as a court, state unlike the consequence judgment is administrative direct of a court’s good-time to proceedings relating credits of conviction or sentence. decision, Williams, simply persuaded that later not have the benefit of we are not light explained policy in them. Preiser preventing implicit attack collateral on state judgments. law, But the Seventh Circuit criminal interprets 12. The dissent do, holding probation provide Department limited we its the with that, law, discretionary authority impose part were to choose and state sen- Thus, parole conditions. Amended tencing dissent 847- judgment. Drollinger court’s is 48; Court, Superior see also Kevin R. v. consistent with Heck. Cal.App.4th Cal.Rptr.3d (2010) (“The power grant parole, including

11. The Seventh Circuit’s statement conditions, setting parole vested in the probably barred Williams Preiser board, courts.”). us, though, not the Unlike parole to numerous condi challenging the dissent concludes that Drollinger's probation tions extended rule for discretionarily those selected condi- conditions to the context without ex tions, challenging statutorily- Plaintiff "is plaining justified. why that extension was component mandated of his sentence.” Williams, particular, 336 F.3d at 579-80. agree Amended dissent at 848. We do not Williams, the court concluded without dis that such a conclusion follows. Just as au- question, cussion that under the state law in thority Department is vested in the to admin- apart did not exist from its conditions. conditions, so, prisons prison ister and set noted, But as under California the status too, Department authority has to ad- exist, legal does and has conse parole system, including minister the the im- quences, wholly apart from conditions im position and modification of condi- Moreover, posed by Department. authority wholly tions. This distinct from court in Williams did not address whether sentencing authority aof state court and parolee challenged conditions that the were per implicate any does not se state court part of the state court’s or were Coca, judgment. Cal.App.3d See In re instead, case, discretionary inas condi Cal.Rptr. (noting that a imposed by authority. tions an executive To usurp Department’s court would adminis- holding the extent that our is in authority require, example, tension with trative new built). Drollinger the Seventh Circuit’s decisions in facilities to be claim, Furthermore, The dissent asserts that our decision will Plaintiffs habeas, likely in would the clear line Heck and brought it “muddle Dotson had been 2241, Bagley, drew,” § see contrary under run proceed to Skinner v. — claim type a of habeas Switzer, -, F.2d at 1289, previously court has extended to which no 1298 n. 179 L.Ed.2d 233 exception to the text implicit Preiser’s (internal quotation at Amended dissent rely § on this technical 1983.13 We do omitted). marks What the dissent ne- § § 2241 and 2254 of distinction between glects is that the “clear line” that the reaching in our deci- the habeas statute referred to -in Supreme Court Skinner is sion, that the same consider- but we note § the rule that Heck bars a 1983 action reasoning: that Plaintiff ation drives our necessarily the action’s success will if judgment of convic- challenge does not a imply invalidity judg- the of a state court’s Compare 28 U.S.C. tion or sentence. (permitting prison- ment. at 1298-99 Id. 2254(a) for un- (providing § habeas relief § sought potentially er’s 1983 claim that to the “custody pursuant lawful exonerating testing DNA because success 2241(c) court”) § (pro- with id. of a State “necessarily” imply would not the invalidi- relief for other forms of unlawful viding conviction); ty prisoner’s see also need not and do not decide custody).14 We Campbell, Nelson v. 541 U.S. § 2241 claim availability whether (2004) (“[W]e proceeding from may parolee ever bar a impor- in Heck to stress the were careful here, that, § 1983. It is sufficient under ”). Here, ‘necessarily.’ term tance of the place that would Plain- the same reasons Supreme “clear we adhere to Court’s § 2241 scope within the also tiffs claim action line.” Because his success “a it is not collateral demonstrate necessarily invalidity imply would not [or sentence] attack on conviction [a] sentence, Plain- of either his conviction or Heck, suit,” a civil through the vehicle of § may tiff under 1983. proceed and is 512 U.S. sum, hold that a state we types different kind from therefore a condition of under claims for which the of habeas claim, successful, § if 1983 if his or her has determined that habeas relief speedier result release would neither exclusive. be 14. We have drawn a similar distinction Generally, decisions in which courts have 13. prisoners § have applied Preiser to bar a 1983 claim tween habeas claims federal applicability specifically noted the of 28 against federal determinations See, Heck, e.g., § U.S.C. 480, original sentence. those ("This 114 S.Ct. 2364 case lies at the Sigler, v. 604 F.2d 1206 n. 1 See Izsak § 1983[] intersection of ... 42 U.S.C. ("Habeas (9th 1979) corpus, attack on an Cir. Preiser, 2254.”); 411 U.S. at ... 28 U.S.C. legality and not a collat of incarceration (“[T]he 93 S.Ct. 1827 federal habeas judgment, proper on is the vehicle eral attack statute, 2254, clearly pro- corpus 28 U.S.C. attacking action. An Parole Commission Osborne, specific remedy.”); federal vides Parole, Board drino v. United States (noting that the claim at 423 F.3d at 1053 curiam)]. (9th Cir.1977) [(per A F.2d 519 2254); cognizable was under issue Ramirez collateral attack on the sentence Galaza, (9th Cir.2003) F.3d will not brought under 28 U.S.C. Shimoda, (same); 131 F.3d Neal v. Andrino, lie.”); (holding that 550 F.2d at 520 Gomez, (same); (9th 1997) Cir. Fierro v. appro petition under 2241 is (9th 1996) (same); Cir. see also F.3d attacks). priate vehicle for such McQuillion Schwarzenegger, Cir.2004) (9th (noting plaintiff's con- action). current 2254 habeas directly or A imply, either from nor invalidity of the criminal indirectly, the “Every provides per- Section 1983 that: underlying term. judgments who, law], son under color of sub- [state two challenges Plaintiff Because jects, subjected, any citizen or causes to be conditions, imposed through were person of the United States or other with- discretionary Department, decision of the jurisdiction depriva- in the thereof to the neither, do and Heck any rights, privileges, his success would tion of or immunities laws, secured the Constitution and shall proceeding him from does not bar injured.” 42 party be liable to the U.S.C. § 1983. § 1983. Because Thornton claims that the REMANDED. AND REVERSED CDCR, law, under color de- of California him prived rights, of his constitutional IKUTA, Judge, dissenting: Circuit plain language appli- of the statute seems law, a matter of California Thorn- cable. As successful, if challenges, ton’s would neces- beginning But with Preiser v. Rodri- that a sarily portion demonstrate of his 475, 1827, 411 guez, U.S. 93 S.Ct. 36

underlying sentence was invalid. Because (1973), Supreme L.Ed.2d 439 Court held such chal- Court has implicit exception carved out “an from lenges brought peti- must be in a habeas § scope 1983’s otherwise broad for actions ” 1983, tion, § I not under would affirm the corpus.’ that lie “withinthe core of habeas otherwise, In holding district court. Dotson, 79, 74, Wilkinson v. 544 U.S. 125 law, majority (2005) misunderstands California (quot- S.Ct. 161 L.Ed.2d 253 Preiser, misapplies Supreme precedent, and 411 ing U.S. at 93 S.Ct. Preiser, split creates a circuit with the Seventh In the Court reasoned that “even § though might the literal terms of 1983 Circuit. claim, Congress seem to cover” a “because act,” passed namely has a specific more I statute, the federal habeas to cover state Thornton was convicted of rob- prisoners’ challenges constitutional to their bery in California state court. He was sentences, convictions and prisoners bring- sentenced under California’s determinate ing such claims are limited to habeas re- law, § sentencing CaLPenal Code 411 lief. U.S. at 93 S.Ct. 1827. The two-year robbery sentence for the of- any prisoner Court concluded that com- one-year fense and consecutive term for plaint lying corpus” at “the core of habeas (rob- prior §§ offense. See id. 213 pursued § cannot be under 1983. Id. 667.5(b) (consecutive term). bery), As re- Preiser, Following the Court decided a 3000(b)(7), quired by id. series of spelling cases out what actions lie Department the California of Corrections corpus” within the “core of habeas (the CDCR) and Rehabilitation defined the cannot brought therefore be parole, term and conditions of Thornton’s Dotson, 81-82, action. monitoring require- which included a GPS limitations, 1242. Among S.Ct. other relief ment and restriction. Thorn- under is not available for actions challenged ton these conditions under “necessarily imply that would the unlaw grounds they 1983 on the U.S.C. (not invalidated) previously fulness of a First, rights Eighth, violated his under the conviction or sentence” or of “state con Amendments, and Fourteenth sought 81,125 (citing finement.” Id. at S.Ct. 1242 477, 114 injunctive damages Humphrey, relief. Heck v. 512 U.S. S.Ct. (1994), plenary authority with to make and eigns and Edwards 2864, 129 L.Ed.2d laws,” including their own the defi- Balisok, enforce S.Ct. 520 U.S. (1997)). punishments, long nition of crimes and “as Summing up, L.Ed.2d they infringe on federal constitu- 1983 as do prisoner’s that “a state held Dotson (absent v. Minneso- guarantees.” invalida tional prior is barred action Danforth (dam ta, tion) sought 552 U.S. matter the relief —no (2008); relief), matter the L.Ed.2d 859 see also Muhammad no ages equitable (state Close, 749, 754-55, 124 suit conduct target prisoner’s (looking to prison conviction or internal leading to the effect of governing in that action state laws success proceedings) —if good-time on disciplinary proceedings the invalidi necessarily demonstrate would its duration.” Id. credits to determine whether a ty of confinement or Heck). these Applying claim was Under barred context, Code, Dot in the of the California Penal considerations section 3000 prisoners’ analyzed whether on a every son then sentence defendant procedures parole to certain challenges convicted under California’s determinate fact or du necessarily challenge law, § the would sentencing CaLPenal Code at their confinement. Id. ration of Id. period parole. must include a of law prisoners’ 3000(a)(1) (“A 1242. Because the S.Ct. resulting § sentence in im- successful, would, most, suits, give at if prison pursuant in the state to prisonment deter parole hearing, a new Dotson them period 1168 or 1170 shall include a Section necessarily not challenges their did mined supervision postrelease com- parole of invalidity of their sentence or imply the waived, munity supervision, unless or as Heck, and therefore under article.”) (em- confinement provided in this otherwise 82-84, under 1983. Id. at proceed could added). phasis To effectuate this statuto- 1242. ry requirement, provide the CDCR “shall parole length ... of and the conditions B of parole up period to the maximum of Here, if successful in his Thornton were 3000(b)(7);1 by Id. provided time law.” imposed parole to the conditions Ct, v.Super. R. 191 Cal. see also Kevin CDCR, necessarily imply by the it would 676, 684, Cal.Rptr.3d App.4th invalidity portion of a of his sentence. has ex- (stating “[t]he [CDCR] authority impose parole pansive law to deter- must look to California We determining in proper” “sen- conditions deemed constitutes Thornton’s mine what sentence).2 of a defendant’s independent part sover- this tence.” “States are states, 3000(b)(7) guidelines specified by the parole perti- "under Code 1. Cal.Penal authority department.” or the part: nent “may majority that the CDCR 2. The observes Department and Reha- of Corrections The at will for the impose or alter conditions with each inmate at bilitation shall meet parole," citing the of the term of duration good days prior her time to his or least maj. op. operations Am. manual. CDCR’s guide- provide, under release date and shall that, pursuant a While it is true 842 n. 7. parole authority specified by the or the lines authority regulation promulgated under the applicable, department, whichever is granted by 3052 and 5076.2 sections length pa- and the conditions Code, the CDCR must "establish Penal period up of time role to the maximum parole” for impose special conditions of by provided law. the determinate prisoners under sentenced Thornton, Thus, law, mandatory statutory Regs, Cal.Code sentencing the CDCR has like whether, 15, 2510, if length that is irrelevant tit. obligation to define the conditions if all the parolee meaning was sentenced under has little or no Because Thornton offense, robbery his 2010 have been removed. prison section 1170 for bars necessarily included the term his sentence courts have important, More California CDCR, set and conditions recognized not a distinction between the (b)(7). 3000(a)(1), Code CaLPenal of parole. status and conditions Under conditions, then, challenging his parolee in California is challenging statutorily-man- Thornton “constructively prisoner” confined and sentence, component of his and if he dated parole. because of the conditions of Peo successful, necessarily imply would Lewis, ple Cal.App.4th invalidity portion of his sentence. Cal.Rptr.2d California Su Therefore, explained under the rules preme explained Court has that “[a]l- Dotson, may bring he though longer is no confined 1983. See 544 U.S. custody is one re status quires ... restrictions which not be public general on members of the C ly.” People Burgener, 41 Cal.3d Accordingly, majority errs in con- 224 Cal.Rptr. 714 P.2d 1251 cluding discretionary (1986) (in bank). The United States Su imposed by part the CDCR are not preme requirement Court views the maj. op. Thornton’s sentence. Am. at 843- prisoner “the abide certain rules” while majority’s 45. The root of the error is its physical custody released from as “[t]he attempt distinguish ill-founded between parole,” California, essence of Samson v. the status of and its conditions. 843, 850, 547 U.S. 126 S.Ct. majority analogizes the distinction be- L.Ed.2d (quoting Morrissey v. pa- tween the “status” and “conditions” of Brewer, 471, 477, 408 U.S. 92 S.Ct. role to the distinction between the status (1972)) (internal 33 L.Ed.2d quotation being prisoner of a and the conditions of omitted), marks because the conditions of confinement, parolee’s and asserts that a parole “significantly confine and restrain” regardless “status” exists of whether the parolee’s a freedom to point the where a CDCR has or altered conditions. parolee custody” is “in purposes maj. Merely Am. op. restating at 842-43. person by prison like a confined walls. argument this A prisoner shows its flaw: 236, 243, Cunningham, Jones v. is confined in prison regardless of (1963). 9 L.Ed.2d 285 A confinement, particular condition of awhile parolee “not .... possesses the absolute parolee is not confined or at all restricted liberty every entitled, to which citizen is parole in the absence conditions. Rath- only but ... liberty proper the conditional er, parole, due to the nature of “[t]he ly dependent special pa on observance of elimination or substitution” of one condi- Lewis, role Cal.App.4th restrictions.” parolee “substantially tion would free the Cal.Rptr.2d at (quoting Mor confinement; figuratively speak- from [his] 2593) sey, ris at U.S. ing, one of the ‘bars’ would be removed (internal omitted). quotation marks In parolee’s] Drollinger from cell.” [the (7th sum, Milligan, parole 552 F.2d California considers to be Cir. person’s “custody” A technical “status” as a im- because of the conditions successful, challenges pa- invalidity portion to some of his aof of his sentence. necessarily imply role the conditions would there is no basis to monitor all of his movements means parolee, on the so posed tracker, being “status” of him barring to conclude that the of GPS from of a defendant’s sentence parolee part living geographical in certain areas. conditions are not. See id. parole but physical These constraints on Thornton’s akin movements are to the fact of actual recognizing that the “status” of Perhaps confinement, maj. op yet Am. at the if a necessarily evaporates released majority asserts that Thornton’s success subject any “con- prisoner longer is no not-imply on these claims “would the inval- majority offers a parole, ditions” of sentence, idity” maj. Am. op. of his at 843. reason that second and inconsistent challenge conditions Thornton’s two no District courts will have idea what to an action proceed under 1983: such majority’s Delphic guidance make “nearly all of permissible they confront challenging 1983 suits var- parole conditions remain will [Thornton’s] ious and permutations kinds con- if in effect” even Thornton is successful. Indeed, majority’s ruling ditions. will 843; maj. maj. op. at also am. op. Am. see require case-by-case analysis the sort of that Thornton “chal- (emphasizing at 841 rejected recently conditions”); maj. am. lenge[s] two Switzer, in Skinner v. where it advised (same). Indeed, op. majority at 846 courts not “to muddle clear line Heck “reach a different result might hints challenges and Dotson drew” between challenging all or a sub- were [Thornton] brought could be and those portion stantial of his conditions.” — -, that could not. maj. logically, n. 9. Yet if op. Am. 1298 n. the “status” of is distinct from the Finally, majority’s holding is incon- parole, it should be irrelevant conditions sistent with the other circuit to have Thornton many challenges. how considered issue. See Williams maj. op. (indicating See Am. 841-42 (7th Wisconsin, 336 F.3d 579-80 Cir. “jurisdiction” that it is the CDCR’s makes 2003); Drollinger, at 1224-25. parolee prisoner, regardless Williams, the Seventh Circuit held that parolee successfully has chal- whether the bring could not 1983 action any pa- or all the conditions of lenged challenge imposed a travel restriction as role). Moreover, majority’s on focus parole. a condition of his 336 F.3d at 579- challenged parole conditions number court, to the because “the According 80. Thornton entirely arbitrary. is Would confinement,” are the ‘conditions’ of bringing have been barred from parolee’s challenge to the travel re- challenged action if he had five attack on striction constituted a collateral conditions, instead two? in a parole, brought his and had to be Alternatively, majority suggests In petition corpus. for habeas Id. at 579. permissible 1983 action is be- Thornton’s on holding, so the Seventh Circuit relied “challenge quite nar- cause Thornton’s is opinion Drollinger, its earlier specific and is focused on the nature of row in a action plaintiff held that a parole.” maj. op conditions of Am. at 843 probation her conditions could majority explain But the fails to what n. 9. (which part state law were of her under specific “nature of condi- differences sentence) peti- only by means of a habeas and how courts important, tions” are tion. 552 F.2d at 1225. weigh import of these differ- should majority attempts distinguish Here, instance, Thornton chal- ences. in that the conditions allowing Drollinger the CDCR lenges the imposed part case were “as court America, 844; UNITED STATES

judgment.” maj. op. Am. see also Plaintiff-Appellee, maj. Supreme n. 12. But the op. am. has not indicated that it makes Court agency, Heck whether an difference under Jorge CORTES, Defendant-Appellant. court,

rather than a establishes the part conditions that are No. 12-50137. majority sentence under state and the United Appeals, States Court of why significant. explain does not Ninth Circuit. Moreover, Drollinger rely itself did not on analys this factor or deem it relevant its Argued and Submitted 2013. June reasoning is.3 The Seventh Circuit’s Filed Oct. 2013. here, directly point on and to be consistent circuit, apply with our sister we should Amended March 2014. statutes at face value and challenges hold that Thornton’s to the GPS

requirement restriction are cognizable only

likewise in habeas.

II sum, challenges Thornton’s pa- his necessarily

role conditions would imply the

partial invalidity of his sentence because required part is a of a determinate Therefore,

sentence in California. brought cannot be

I respectfully majority’s dissent from the contrary,

conclusion to the which conflicts precedent

with and sister authority.

circuit Appeals States Court of Circuit, Eighth

for the sitting designa-

tion. Williams, majority's

3. Nor is restricting liberty. there merit to the tions ("For parolees, statement that the Seventh Circuit “extended F.3d at 579 ... the 'condi- Drollinger’s confinement.”); probation rule for conditions to tions' are the Drol- explaining why linger, context without (explaining 552 F.2d at 1224 that a justified,” Jones, maj. op. probationer that extension was custody” Am. was “in majority ignores 844 n. 11. The the obvious 371 U.S. at which ad- reason behind the "custody,” extension: the essence of dressed because "we can that, probation exchange significant both discern no difference between the physical probation regard freedom from the confinement of statutes of with prison, comply question custody”). an offender must with condi- to the

Case Details

Case Name: William Thornton v. Edmund G. Brown, Jr

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 18, 2014

Citation: 757 F.3d 834

Docket Number: 11-56146

Court Abbreviation: 9th Cir.