GRABER, Circuit Judge:
In this civil rights action under 42 U.S.C. § 1983, Plaintiff William Cecil Thornton brings a constitutional challenge to the imposition and enforcement of two conditions of his parole: a residency restriction and a requirement that he submit to electronic monitoring using a Global Positioning System ("GPS") device. Citing Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the district court concluded that habeas corpus provided the exclusive federal remedy for Plaintiff's claims and dismissed the action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
The Supreme Court has not directly considered the application of the Heck doctrine to § 1983 actions that challenge conditions of parole. Among the courts of appeals, only the Seventh Circuit has done so, in Drollinger v. Milligan, 552 F.2d 1220 (7th Cir.1977), and Williams v. Wisconsin, 336 F.3d 576 (7th Cir.2003). Consistent with Supreme Court precedent and that of our sister circuit, we hold that such an action is not barred by Heck if it is not a collateral attack on either the fact of a parolee's confinement as a parolee or the parolee's underlying conviction or sentence. Because we conclude that Petitioner's action is not such an attack, we reverse and remand.
California's Sex Offender Registration Act requires certain convicted sex offenders to register with law enforcement officials in the communities in which they reside. Cal.Penal Code §§ 290(c), 290.005(a). California's Sexual Predator Punishment and Control Act of 2006 — also known as Jessica's Law or Proposition 83 — imposes several requirements that apply to parolees who, as sex offenders, are subject to that duty to register. One of those requirements is a residency restriction according to which a person who is required to register may not "reside within 2000 feet of any public or private school, or park where children regularly gather." Id. § 3003.5(b). Another requirement is that any person who is convicted of a "registerable sex offense" as defined by section 290(c) — a section which enumerates various sex offenses under California law — must submit to electronic monitoring by a GPS device, either for the duration of that person's parole or for life. Id. §§ 3000.07(a), 3004(b). The state's Department of Corrections and Rehabilitation ("the Department") also has discretionary authority to require any parolee to submit to electronic monitoring. See id. § 3010(a) (providing that "the [Department] may utilize continuous electronic monitoring to electronically monitor the whereabouts of persons on parole").
In 1987, Plaintiff pleaded guilty in Tennessee to sexual battery. In 2006, he was convicted in California of buying or receiving stolen property and was sentenced to a 16-month term of imprisonment. California law requires a period of parole or supervised release following such a prison term, Cal.Penal Code § 3000, and when Plaintiff was released in June 2008, he received a three-year parole term. Citing Plaintiff's previous Tennessee offense, the Department imposed, as parole conditions, a GPS monitoring requirement (pursuant to section 3010 of the Penal Code) and a residency restriction prohibiting him from living within 2000 feet of schools or parks where children gather (pursuant to section 3003.5(b)). Plaintiff was later convicted of robbery and was sentenced to a three-year prison term for that offense, pursuant to California Penal Code section 1170. Again, California law required a term of parole to follow his sentence. Cal.Penal Code § 3000. While he was in prison, the Department issued new parole conditions that would apply upon his release. Those conditions included the same GPS monitoring requirement and residency restriction.
During his second prison term, Plaintiff filed this action under 42 U.S.C. § 1983, seeking both monetary and injunctive relief. He alleges that the Department violated his constitutional rights by imposing the GPS monitoring requirement and residency restriction as parole conditions and by enforcing those conditions in an arbitrary or discriminatory manner. The district court reasoned that, as a parolee, Plaintiff was "in custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2254. It further reasoned that, under the Heck doctrine, a habeas petition is the exclusive means by which Plaintiff can challenge a condition of his parole. Accordingly, the district court dismissed the claim.
Plaintiff timely appeals. We review de novo the legal issues presented here. Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 824 (9th Cir.2009).
Plaintiff's claims against the Governor, the Secretary of Corrections, and a Parole Unit Supervisor are limited to injunctive relief. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citing Eleventh Amendment considerations and holding that § 1983 does not permit suits for damages against states); Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir.1997) (holding that "state officials sued in their official capacities are not `persons' within the meaning of § 1983" except when "sued for prospective injunctive relief"). Neither absolute nor qualified immunity bars Plaintiff's claims
Absolute immunity does bar Plaintiff's claims for damages against his parole officers for imposing allegedly unconstitutional parole conditions. We have held that absolute immunity "extend[s] to parole officials for the `imposition of parole conditions'" because that task is "integrally related to an official's decision to grant or revoke parole," which is a "quasi-judicial" function. Swift v. California, 384 F.3d 1184, 1189 (9th Cir.2004) (quoting Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir.1983)). Both parole conditions currently in effect were imposed through particularized and discretionary decisions by parole officers. The GPS condition was imposed pursuant to the Department's discretionary authority under section 3010 of the California Penal Code,
Absolute immunity does not extend, though, to Plaintiff's claim that the parole officers enforced the conditions of his parole in an unconstitutionally arbitrary or discriminatory manner. Parole officers' "immunity for conduct arising from their duty to supervise parolees is qualified." Anderson, 714 F.2d at 910. Plaintiff's allegation that the officers enforced the residency restriction against him but not against similarly situated parolees relates to the manner in which Defendants implemented that condition — an element of their supervisory function. Absolute immunity therefore does not apply to Plaintiff's enforcement — based claim. However, the district court also dismissed this claim as barred by qualified immunity. On appeal, Plaintiff does not challenge that ruling except to the extent that it bars him from pursuing injunctive relief. Because qualified immunity does not bar injunctive relief, Vance, 345 F.3d at 1091, Plaintiff may assert his non-monetary claim arising from the allegedly discriminatory enforcement of his parole conditions.
With respect to his claims for injunctive relief, the question remains whether Plaintiff appropriately brought those claims under § 1983 instead of through a petition for habeas corpus.
Persons subject to state custody generally "have two potential avenues to remedy violations of their federal constitutional rights: a habeas petition under 28 U.S.C. § 2254, and a civil suit under 42 U.S.C. § 1983." Osborne v. Dist. Atty's Office, 423 F.3d 1050, 1053 (9th Cir.2005) (citing Heck, 512 U.S. at 480, 114 S.Ct. 2364).
Not all claims that are cognizable in habeas are precluded from § 1983's scope under that standard; rather, there are "instances where the same constitutional rights might be redressed under either form of relief." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see also Osborne, 423 F.3d at 1055 (rejecting "the notion that a claim which can be brought in habeas must be brought in habeas").
A state parolee is "in custody" for purposes of the federal habeas statute, Jones v. Cunningham, 371 U.S. 236, 243,
The only federal court of appeals to have decided how Heck applies to a non-physical form of custody is the Seventh Circuit, which addressed the issue in Drollinger, 552 F.2d 1220. In dismissing a state probationer's § 1983 claim challenging a condition of her probation, that court identified the crux of the issue: "Because probation is by its nature less confining than incarceration, the distinction between the fact of confinement and the conditions thereof is necessarily blurred." Id. at 1225. The same is true of parole. See Williams, 336 F.3d at 579 ("For parolees,... the `conditions' of parole are the confinement."). But that does not mean that no distinction exists in the parole context between conditions of confinement and the fact of confinement. Not all parole conditions are essential to the "fact" of a parolee's confinement; and a parolee's challenge to parole terms that are more analogous to "conditions" in the prison context will not speed the parolee's release from parole.
Here, Plaintiff does not challenge his status as a parolee or the duration of his parole, and even if he succeeds in this action, nearly all of his parole conditions will remain in effect. Those conditions include drug and alcohol testing and treatment; psychiatric and behavioral counseling; limitations on travel, employment, association with certain individuals, patronage of certain businesses, and the use of motor vehicles; a curfew; numerous sex-offender registration requirements; a duty not to contact his robbery victim; and other restrictions. In these circumstances, we hold that his challenge to the two conditions does not threaten his "confinement" as a parolee. See Jones, 371 U.S. at 242-43, 83 S.Ct. 373 (explaining that the fact of a parolee's custody consists of the cumulative effect of its conditions in "significantly confin[ing] and restrain[ing] his freedom"). Thus, even if the line between conditions of confinement and the fact thereof may be "blurred" in some cases, it is clear that Plaintiff's claims in this case do not seek "speedier release" from his confinement within the meaning of Preiser's exception to § 1983.
552 F.2d at 1224-25 (citations omitted).
This case is distinguishable from Drollinger, though, because the conditions that Plaintiff challenges were not imposed as part of a court judgment. Rather, the Department imposed the GPS monitoring requirement pursuant to its discretionary authority under section 3010 of the Penal Code, and the Department imposed the residency restriction pursuant to the individualized assessment permitted by section 3000.5(b), as interpreted in Taylor, 147 Cal.Rptr.3d at 67-68. Even if successful, Plaintiff's claims will have no effect on his criminal sentence (a prison term that he has already served), or on the duration of his parole. Because Plaintiff challenges only the discretionary decisions of an administrative body, it is unlike the Indiana probation condition considered in Drollinger.
Furthermore, because Plaintiff's claim, had it been brought in habeas, likely would proceed under § 2241, see Bagley, 718 F.2d at 922-23, it is a type of habeas claim to which no court has previously extended Preiser's implicit exception to the text of § 1983.
The dissent asserts that our decision will "muddle the clear line Heck and Dotson drew," contrary to Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1298 n. 12, 179 L.Ed.2d 233 (2011). What the dissent neglects is that the "clear line" that the Supreme Court referred to in Skinner is the rule that Heck bars a § 1983 action only if the action's success will necessarily imply the invalidity of a state court's judgment. Id. at 1298-99 (permitting a prisoner's § 1983 claim that sought potentially exonerating DNA testing because success would not "necessarily" imply the invalidity of the prisoner's conviction); see also Nelson v. Campbell, 541 U.S. 637, 647, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) ("[W]e were careful in Heck to stress the importance of the term `necessarily.'"). Here, we adhere to the Supreme Court's "clear line." Because his success in this action would not necessarily imply the invalidity of either his conviction or sentence, Plaintiff may proceed under § 1983.
In sum, we hold that a state parolee may challenge a condition of parole under § 1983 if his or her claim, if successful, would neither result in speedier release from parole nor imply, either directly or indirectly, the invalidity of the criminal judgments underlying that parole term. Because Plaintiff challenges just two parole conditions, which were imposed through a discretionary decision of the Department, his success would do neither, and Heck does not bar him from proceeding under § 1983.
IKUTA, Circuit Judge, dissenting:
As a matter of California law, Thornton's challenges, if successful, would necessarily demonstrate that a portion of his underlying sentence was invalid. Because the Supreme Court has held such challenges must be brought in a habeas petition, not under § 1983, I would affirm the district court. In holding otherwise, the majority misunderstands California law, misapplies Supreme Court precedent, and creates a circuit split with the Seventh Circuit.
In 2010, Thornton was convicted of robbery in California state court. He was sentenced under California's determinate sentencing law, Cal.Penal Code § 1170, to a two-year sentence for the robbery offense and a one-year consecutive term for a prior offense. See Cal.Penal Code §§ 211, 213 (robbery), 667.5(b) (consecutive term). As required by California law, Cal.Penal Code § 3000(b)(7), the California Department of Corrections and Rehabilitation (the CDCR) defined the term and conditions of Thornton's parole, which included a GPS monitoring requirement and a residency restriction. Thornton challenged these conditions under 42 U.S.C. § 1983 on the grounds that they violated his First, Eighth and Fourteenth Amendment rights, and sought damages and injunctive relief.
Section 1983 provides that: "Every person who, under color of [state law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
But beginning with Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court carved out "an implicit exception from § 1983's otherwise broad scope for actions that lie `within the core of habeas corpus.'" Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser, 411 U.S. at 487, 93 S.Ct. 1827). In Preiser, the Court reasoned that "even though the literal terms of § 1983 might seem to cover" a claim, "because Congress has passed a more specific act," namely the federal habeas statute, to cover state prisoners' constitutional challenges to their convictions and sentences, prisoners bringing such claims are limited to habeas relief. 411 U.S. at 489, 93 S.Ct. 1827. The Court concluded that any prisoner complaint lying at "the core of habeas corpus" cannot be pursued under § 1983. Id.
Following Preiser, the Court decided a series of cases spelling out what actions lie within the "core of habeas corpus" and therefore cannot be brought in a § 1983 action. Dotson, 544 U.S. at 81-82, 125 S.Ct. 1242. Among other limitations, relief under § 1983 is not available for actions that would "necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence" or of "state confinement." Id. at 81, 125 S.Ct. 1242 (citing Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)). Summing up, Dotson held that "a state prisoner's § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82, 125 S.Ct. 1242. Applying these considerations in the parole context, Dotson then analyzed whether the prisoners' challenges to certain parole procedures would necessarily challenge the fact or duration of their confinement. Id. Because the prisoners' lawsuits, if successful, would, at most, give them a new parole hearing, Dotson determined their challenges did not necessarily imply the invalidity of their sentence or confinement under Heck, and therefore could proceed under § 1983. Id. at 82-84, 125 S.Ct. 1242.
Here, if Thornton were successful in his challenge to the parole conditions imposed by the CDCR, it would necessarily imply the invalidity of a portion of his sentence.
We must look to California law to determine what constitutes Thornton's "sentence." "States are independent sovereigns with plenary authority to make and enforce their own laws," including the definition of crimes and punishments, "as long as they do not infringe on federal constitutional guarantees." Danforth v. Minnesota, 552 U.S. 264, 280, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); see also Muhammad v. Close, 540 U.S. 749, 754, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (looking to state laws governing the effect of prison disciplinary proceedings on good-time credits to determine whether a § 1983 claim was barred under Heck). Under section 3000
Because Thornton was sentenced under § 1170 for his 2010 robbery offense, his sentence necessarily included the term and conditions of parole set by the CDCR, Cal.Penal Code §§ 3000(a)(1), (b)(7). In challenging his parole conditions, then, Thornton is challenging a statutorily-mandated component of his sentence, and if he is successful, it would necessarily imply the invalidity of a portion of his sentence. Therefore, under the rules explained in Dotson, he may not bring this challenge under § 1983. See Dotson, 544 U.S. at 81-83, 125 S.Ct. 1242.
Accordingly, the majority errs in concluding that the discretionary conditions of the CDCR are not part of Thornton's sentence. Maj. op. at 1262. The root of the majority's error is its ill-founded attempt to distinguish between the fact of parole and its conditions. This is not a distinction that California courts have recognized. Under California law, a parolee in California is confined and "constructively a prisoner" because of the conditions of parole. People v. Lewis, 74 Cal.App.4th 662, 670, 88 Cal.Rptr.2d 231 (1999). The California Supreme Court has explained that "[a]lthough a parolee is no longer confined in prison his custody status is one which requires... restrictions which may not be imposed on members of the public generally." People v. Burgener, 41 Cal.3d 505, 531, 224 Cal.Rptr. 112, 714 P.2d 1251 (1986) (in bank). A parolee possesses "not... the absolute liberty to which every citizen is entitled, but only ... the conditional liberty properly dependent on observance of special parole restrictions." Lewis, 74 Cal.App.4th at 670, 88 Cal.Rptr.2d 231 (quoting Morrissey v. Brewer, 408 U.S. 471, 477, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)) (internal quotation marks omitted). In sum, California considers parole to be "custody" because of the conditions imposed on the parolee, so there is no basis to conclude that the fact of parole is part of a parolee's sentence but parole conditions are not. See id.
Moreover, the majority's attempted distinction is unworkable. The majority
District courts will have no idea what to make of the majority's Delphic guidance as they confront § 1983 suits challenging various kinds and permutations of parole conditions. Indeed, the majority's ruling will require the sort of case-by-case analysis that the Supreme Court recently rejected in Skinner v. Switzer, where it advised courts not "to muddle the clear line Heck and Dotson drew" between challenges that could be brought under § 1983, and those that could not. ___ U.S. ___, 131 S.Ct. 1289, 1298 n. 12, 179 L.Ed.2d 233 (2011).
Finally, the majority's holding is inconsistent with the only other circuit to have considered this issue. See Williams v. Wisconsin, 336 F.3d 576, 578-79 (7th Cir. 2003); Drollinger v. Milligan, 552 F.2d 1220 (7th Cir.1977). In Williams, the Seventh Circuit held that a parolee could not bring a § 1983 action to challenge a travel restriction imposed as a condition of his parole. 336 F.3d at 578-79. According to the court, because "the `conditions' of parole are the confinement," the parolee's challenge to the travel restriction constituted a collateral attack on his parole, and had to be brought in a petition for habeas corpus. Id. at 579. In so holding, the Seventh Circuit relied on its earlier opinion in Drollinger, which held that a plaintiff in a § 1983 action could challenge her probation conditions (which under state law were part of her sentence) only by means of a habeas petition. Drollinger,
In sum, Thornton's challenges to his parole conditions would necessarily imply the partial invalidity of his sentence because parole is a required part of a determinate sentence in California. Therefore, his challenge cannot be brought under § 1983. I respectfully dissent from the majority's conclusion to the contrary, which conflicts with Supreme Court precedent and sister circuit authority.
Thus, the CDCR has a mandatory statutory obligation to define the conditions and length of parole "under guidelines specified by the parole authority or the department."
