Jeffery Powell KIRBY, Plaintiff-Appellant,
v.
Don SIEGELMAN, 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.
Robert Edmond, Plaintiff-Appellant,
v.
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.
Nos. 98-6236, 98-6672.
United States Court of Appeals,
Eleventh Circuit.
Nov. 17, 1999.
Appeals from the United States District Court for the Middle District of Alabama. (No. CV 98-A-153-N),
Harold Albritton, III, Judge.
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
*
Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
determined that Edmond's challenge 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. 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
1
Kirby appeals only the district court's dismissal of his ex post facto and double jeopardy challenges.
2
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.
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 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.
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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 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).
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.
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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, 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 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, 87 S.Ct. 1507.
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.
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.
5
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 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.
B. EDMOND
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
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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
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
7
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 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.
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
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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. Id. quoting Ingraham v. Wright, 430 U.S. 651,
97 S.Ct. 1401, 51 L.Ed.2d 711 (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 this case to
9
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.
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