Kirby v. FOB James

• Decision Date: 17 November 1999
• Docket Number: Nos. 98-6236,98-6672,s. 98-6236
• Citation: 195 F.3d 1285
• Parties: (11th Cir. 1999) 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
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1285

195 F.3d 1285 (11th Cir. 1999)

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

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Nov. 17, 1999

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Middle District of Alabama

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 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 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.

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).

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...