Argued and Submitted November 9, 2012 —Pasadena, California
Appeal from the United States District Court for the Southern District of California Ruben B. Brooks, Magistrate Judge, Presiding D.C. No. 3:10-cv-01583-RBB
Karen Gal-Or (argued) and Craig E. Stewart, Jones Day, San Francisco, California, for Plaintiff-Appellant.
Jose A. Zelidon-Zepeda (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Jonathan L. Wolff, Senior Assistant Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General, San Francisco, California, for Defendants-Appellees.
Before: Myron H. Bright, Susan P. Graber, and Sandra S. Ikuta, Circuit Judges.[*]
The panel reversed the district court's order dismissing, pursuant to Fed.R.Civ.P. 12(b)(6), a civil rights action involving a constitutional challenge to the imposition and enforcement of two conditions of plaintiff's parole: a residency restriction and a requirement that plaintiff submit to electronic monitoring using a Global Positioning System device.
The district court, citing Preiser v. Rodriguez, 411 U.S. 475, 489–90 (1973), and Heck v. Humphrey, 512 U.S. 477, 487 (1994), concluded that habeas corpus provided the exclusive federal remedy for plaintiff's claims. The panel held that an action which challenges the conditions of parole 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. The panel held that because in this case plaintiff challenged just two parole conditions, which were imposed through a discretionary decision of the Department of Corrections and Rehabilitation, his success would neither result in speedier release from parole nor imply, either directly or indirectly, the invalidity of the criminal judgments underlying that parole term. Therefore Heck did not bar him from proceeding under 42 U.S.C. § 1983.
Dissenting, Judge Ikuta stated that as a matter of California law, plaintiff's challenges, if successful, would necessarily demonstrate that a portion of his underlying sentence was invalid. Judge Ikuta stated that because the Supreme Court has held such challenges must be brought in a habeas petition, not under § 1983, she would affirm the district court.
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 (1973), and Heck v. Humphrey, 512 U.S. 477, 487 (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 2011, a California trial court ruled that section 3003.5(b)'s residency restriction, when applied to all registered sex offenders as a "blanket" parole condition, was unconstitutional. In re Taylor, 147 Cal.Rptr.3d 64, 67–68 (Ct. App. 2012). The appellate court affirmed the lower court's order, which prohibited the "blanket enforcement of the residency restriction"; but the court also held that the Department "may, after consideration of a parolee's particularized circumstances, impose a special parole ...