823 F.2d 1256 (8th Cir. 1987), 86-5209, Offet v. Solem

Docket Nº:86-5209.
Citation:823 F.2d 1256
Party Name:Gary OFFET, for himself and all others similarly situated, Appellant, v. Herman SOLEM, Robert Hansen, Greg Lanners, Brian Curtin, Henry Van Burkum, Val Stokke, Phil Davenport, Dennis Northdurth, Lloyd Stivers, George Milous, Dan Jacobson, Tom Sonnenfeld, and the past and present members of the South Dakota Board of Charities and Corrections, all su
Case Date:July 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1256

823 F.2d 1256 (8th Cir. 1987)

Gary OFFET, for himself and all others similarly situated, Appellant,


Herman SOLEM, Robert Hansen, Greg Lanners, Brian Curtin,

Henry Van Burkum, Val Stokke, Phil Davenport, Dennis

Northdurth, Lloyd Stivers, George Milous, Dan Jacobson, Tom

Sonnenfeld, and the past and present members of the South

Dakota Board of Charities and Corrections, all sued in their

individual and official capacities, Appellees.

No. 86-5209.

United States Court of Appeals, Eighth Circuit

July 13, 1987

Submitted June 10, 1987.

Page 1257

A. Thomas Pokela, Sioux Falls, S.D., for appellant.

John W. Bastian, Pierre, S.D., for appellees.

Before ARNOLD, FAGG, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Gary Offet appeals pro se from a decision of the District Court dismissing his complaint. We affirm.

Offet is an inmate at the South Dakota State Penitentiary. He was convicted in November 1979 of first degree robbery and obstruction of justice, and was sentenced to consecutive terms of nine and three years, respectively. At that time, S.D. Codified Laws Ann. Sec. 24-5-1 (1979) provided that, subject to the provisions of S.D. Codified Laws Ann. Secs. 24-2-17 and 24-2-18 (1979), every convict sentenced for less than a life term was entitled to a deduction from his sentence of a certain number of months for each year served. Sections 24-2-17 and 24-2-18 provided that the warden could recommend full or partial reduction of time for good conduct (good time credit) based on an inmate's record of disciplinary infractions. These statutes remain in effect in essentially the same form.

In 1981, the South Dakota legislature amended the forfeiture provision. S.D. Codified Laws Ann. Sec. 24-2-12 (Supp.1986) now provides that every prisoner receiving punitive confinement for violation of the penitentiary's rules, regulations or policies automatically forfeits one day of good time for each day served under punitive confinement. Offet brought an action under 42 U.S.C. Sec. 1983 on the ground that, as applied to him, Sec. 24-2-12 is an ex post facto law. Offet alleges that the statute was applied against him to withhold 270 days of good time credit. He seeks compensatory and punitive damages as well as declaratory relief and an injunction prohibiting the prison from withholding his good time credits and ordering the prison to restore credits forfeited.

The District Court held that Offet failed to state a cognizable claim under 42 U.S.C. Sec. 1983, and that the action must be construed as a petition for a writ of habeas corpus. Because Offet's ex post facto claim had not been litigated in state court, the District Court dismissed the action without prejudice.

To the extent that Offet directly is attacking the length of his confinement and is seeking restoration of his good time credits, the District Court was correct in finding that the appropriate vehicle for asserting these claims would have been a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, which requires exhaustion of state remedies. Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The requirement of exhaustion in such cases has its roots in federalism and in the need both "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors" and to show "a proper respect for state functions." Id. at 490, 491, 93 S.Ct. at 1836, 1837 (quoting Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971)). However, Offet is also seeking declaratory relief and damages. In so doing, he mounts an indirect attack on the length of his state confinement, but one that directly implicates the policies of federal-state comity requiring exhaustion in a direct attack.

This case requires us to explore the " 'ambiguous borderland' between habeas corpus and section 1983." McKinnis v.

Page 1258

Mosely, 693 F.2d 1054, 1056 (11th Cir.1982) (per curiam) (quoting M. Bator, P. Mishkin, D. Shapiro and H. Wechsler, Hart and, Wechsler's The Federal Courts and the Federal System 415 (Supp.1981)). Our adjudication of the constitutional issue in Offet's claim for damages and declaratory relief under Sec. 1983 could be used as a basis for issue preclusion in a subsequent habeas proceeding in state court. See Dunham v. First National Bank, 260 N.W.2d 375, 379 (S.D.1977) (prior federal ruling collaterally estops state court from adjudicating same issue); see also Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir.1985). The effect of such an indirect proceeding would be exactly the same as one directly seeking restoration of the good time credits. In both cases, premature adjudication by a federal court would deprive a state court system of the first opportunity to address the merits of the underlying constitutional issue.

Our Court has not been consistent in either applying or not applying the exhaustion requirement to such an indirect attack on the length of a state prisoner's confinement. Compare White v. Bloom, 621 F.2d 276 (8th Cir.1980), cert. denied, 449 U.S. 995, 101 S.Ct. 533, 66 L.Ed.2d 292 (1980) and cert. denied, 449 U.S. 1089, 101 S.Ct. 882, 66 L.Ed.2d 816 (1981) and Kelsey v. State of Minnesota, 565 F.2d 503 (8th Cir.1977) (permitting adjudication of damages claims) with Miner v. Brackney, 719 F.2d 954 (8th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 856 (1984) and Franklin v. Webb, 653 F.2d 362 (8th Cir.1981) (requiring exhaustion of state proceedings before adjudicating damages claims). 1 Accordingly, we approach this case as one in which our decision will establish the rule for this Circuit. Because a prisoner who wins a Sec. 1983 action in federal court for damages or declaratory relief for the unconstitutional deprivation of good time credits thereby establishes an irrefutable claim for early or immediate release under habeas, we hold that in such a case the federal court should stay the Sec. 1983 claim until the plaintiff has satisfied the exhaustion requirement with respect to the underlying constitutional issue. 2

We believe it is clear that the question whether exhaustion should be required should not be determined solely by reference to the relief the plaintiff requests. See Franklin v. Webb, 653 F.2d at 364; Hanson v. Heckel, 791 F.2d 93, 96 (7th Cir.1986) (per curiam). Such a facile distinction between habeas and other claims quickly would subvert the policy announced in Preiser. In Offet's case, a federal ruling on the constitutional issue underlying the Sec. 1983 claim effectively would preclude state consideration of the same issue in a subsequent state proceeding. 3 See Preiser,

Page 1259

11 U.S. at 511, 93 S.Ct. at 1847 (Brennan, J., dissenting). As the dissent observes, post at 1261, there is language in Preiser suggesting the availability of Sec. 1983 damages actions, to which the exhaustion requirement...

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