[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ______________________________ FILED U.S. COURT OF APPEALS No. 98-6236 ELEVENTH CIRCUIT _______________________________ 11/17/99 D.C. Docket No. 98-D-357-N THOMAS K. KAHN CLERK JEFFERY POWELL KIRBY,
Plaintiff-Appellant, versus FOB JAMES, Hon. in his official capacity as Governor of State of Alabama, BILL PRYOR, Hon. in his official capacity as Attorney General of State of Alabama, et al.,
Defendants-Appellees.
______________________________
No. 98-6672 ______________________________ D.C. Docket No. 98-A-153-N
ROBERT EDMOND, Plaintiff-Appellant, versus
JOE S. HOPPER, Commissioner A.D.O.C. in his individual and official capacities; JOHN SHAVER, Deputy Commissioner in his individual and official capacities, et al., Defendants-Appellees. ------------------------------------------- Appeals from the United States District Court for the Middle District of Alabama ------------------------------------------ (November 17, 1999)
Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.
PER CURIAM:
These cases, consolidated for appeal, involve challenges to Alabama’s
Community Notification Statute (“the Act”), Ala. Code § 15-20-20. Appellant
Jeffery Powell Kirby appeals the district court’s dismissal of his claims that the Act
violates the Ex Post Facto and Double Jeopardy Clauses of the United States
Constitution. The district court dismissed the complaint for failure to state a claim
upon which relief may be granted because it determined that Kirby’s claim was not
ripe. Appellant Edmond appeals the district court’s grant of summary judgment as
to his claims that Defendant Alabama Department of Corrections and its employees
violated his constitutional rights by classifying him as a sex offender although he has
never been convicted of a sex offense. The district court granted summary judgment
because it determined that Edmond did not establish an equal protection claim or a
due process violation. Further, the district court determined that Edmond’s challenge
________________ *Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by designation.
-2- 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 inadequate 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 42 U.S.C. § 1983 claiming that the Act violates the Ex Post
Facto and Double Jeopardy Clauses of the United States Constitution. Additionally,
Kirby alleged that he was denied parole due to the Act, and that this violated the Due
Process and Equal Protection Clauses.1 Kirby’s conviction for first-degree sodomy
constitutes a sex offense as defined by the Act. Ala. Code § 15-20-20, et seq. (1975).
As a convicted sex offender, the Act applies to Kirby upon his release from prison.
1 Kirby appeals only the district court’s dismissal of his ex post facto and double jeopardy challenges. -3- 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 42 U.S.C. § 1983
against ADOC Commissioner Joe Hopper, Deputy Commissioner John Shaver, and
other ADOC officials claiming that he was unlawfully classified in prison as a sex
offender despite never having been convicted of a sex offense. Edmond first claims
this classification violates his equal protection rights because sex offenders are treated
differently in prison. Second, he claims the classification violates his due process
rights because he was labeled a sex offender without being convicted of any sex
crimes. Third, he alleges the classification violates his right against self-incrimination
because he is forced to admit past behavior in sex offender classes. Finally, Edmond
contends his classification will improperly subject him to Alabama’s Community
Notification Act after his release from prison.
-4- 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-release
programs and community custody programs. Moreover, Edmond contends his
classification as a sex offender imposes a stigma that amounts to a significant hardship
-5- 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 contend 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
Magistrate Judge and granted summary judgment to Defendants on all claims. The
court determined that Edmond did not establish an equal protection violation because
he did not allege that the different treatment was based on race, religion, or another
constitutionally protected interest. As to Edmond’s due process claim, the court
granted summary judgment because ADOC regulations clearly provide for sex
offender classification for inmates with two or more arrests for sex crimes regardless
of the disposition of those claims. The court found that Edmond’s claim regarding his
mandatory participation in the sex offender treatment program was meritless because
any admission of guilt required by the program would be privileged communication
not subject to disclosure in a judicial proceeding. Finally, the court found that
2 Defendants filed a special report with the Magistrate Judge asserting that Edmond failed to state a claim under 42 U.S.C. § 1983. The Magistrate Judge construed the special report as a motion for summary judgment and recommended that summary judgment be granted for Defendants on all claims. -6- 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 appropriate 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 court 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
-7- 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, a 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
3 We note that Alabama’s Community Notification Act contains both a registration and a notification component. Kirby challenges only the notification provision of the Act. -8- 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
effective review. Id. Ripeness requires the weighing of two factors: (1) the hardship
to the parties of withholding court consideration; and (2) the fitness of the issues for
judicial review. Id. at 139.
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 statute, 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
-9- 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 proscribed 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.
-10- Edmond claims that the procedures by which he was classified as a sex offender
were insufficient to satisfy the requirements of the Fourteenth Amendment’s Due
Process Clause. We agree that the classification implicates a liberty interest, but
cannot determine from the record whether the procedures afforded satisfy
constitutional requirements.
With any procedural due process challenge, we must 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 process of law.” U.S.
Const. Amend. XIV. As Edmond was clearly not deprived of life or property, he is
entitled to due process only if he was deprived of “liberty” within the meaning of the
Fourteenth Amendment. Determining whether one was deprived of liberty presents
a unique challenge with prisoners, who are already deprived of their liberty in the
ordinary understanding of the word. The Supreme Court has identified two situations
in which a prisoner can be further deprived of his liberty such that due process is
required. The first is when a change in the prisoner’s conditions of confinement is
so severe that it essentially exceeds the sentence imposed by the court. See Sandin v.
Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Vitek v. Jones,
445 U.S. 480, 492-93, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that a prisoner
-11- is entitled to due process prior to being transferred to a mental hospital). The second
situation 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, the 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. at 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
-12- 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 unknown 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 a 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.
-13- We find support for our conclusion in Vitek v. Jones, supra. There, prisoners
challenged a Nebraska statute authorizing prison 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
which would warrant a transfer to a mental hospital. Vitek, 445 U.S. at 489-90, 100
S.Ct. at 1261-62. Additionally, and important to this case, the Court found that the
prisoners had a liberty interest in not being transferred to a mental hospital
independent of state law. Id. at 491, 100 S.Ct. at 1263. The Court concluded that the
liberty interest encompassed both the labeling of the inmate as mentally ill as well as
the transfer to the mental hospital. Id. at 487-88, 100 S.Ct. at 1260-61. Moreover, the
Court recognized that the prisoners also faced the significant stigma associated with
mental illness. Id. at 492, 100 S.Ct. at 1263.
The Court also noted that one of the historic liberties protected by the Due
Process Clause is the right to be free from unjustified intrusions on personal security.
-14- 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 to 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 be 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
-15- 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. 986672, 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.
-16-