Young v. Kenny

• Decision Date: 11 October 1989
• Docket Number: No. 88-3995.,88-3995.
• Citation: 907 F.2d 874
• Parties: Robert H. YOUNG, Plaintiff-Appellant, v. Phyllis KENNY, Thomas Manning, Henry Rose, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

907 F.2d 874

Robert H. YOUNG, Plaintiff-Appellant, v. Phyllis KENNY, Thomas Manning, Henry Rose, Defendants-Appellees.

No. 88-3995.

United States Court of Appeals, Ninth Circuit.

Submitted July 25, 1989.^*

Decided October 11, 1989.

As Amended on Denial of Rehearing June 25, 1990.

Rehearing Denied June 25, 1990.

Robert H. Young, Shelton, Wash., in pro per.

Richard R. Wiebe, Brobeck, Phleger & Harrison, San Francisco, Cal., for plaintiff-appellant.

Aaron K. Owada, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Before BROWNING, KOZINSKI and RYMER, Circuit Judges.

Rehearing En Banc Denied June 25, 1990.

ORDER

The opinion filed on October 11, 1989, 887 F.2d 237 is amended as reflected in the attached revised opinion.

With these amendments the petition for rehearing is denied. The full court has been advised of the suggestion for en banc rehearing and no judge has requested a vote thereon. The suggestion for rehearing en banc is therefore rejected. Fed.R. App.P. 35(b).

OPINION

KOZINSKI, Circuit Judge:

Robert Young, a Washington state prisoner, filed a complaint for damages pursuant to 42 U.S.C. § 1983 (1982), claiming that state officials had unconstitutionally failed to apply jail-time credits to his prison sentence. The district court dismissed his complaint; we modify the district court's order to stay rather than dismiss the claim.

1. Where a state prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 500, 93 S.Ct. 1827, 1836-37, 1841, 36 L.Ed.2d 439 (1973).¹ This is largely because, while a habeas petitioner must exhaust state remedies, Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982), a section 1983 plaintiff need not. Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274 (1975). The exhaustion requirement in federal habeas actions "is rooted in considerations of federal-state comity." Preiser, 411 U.S. at 491, 93 S.Ct. at 1837. It is well-established that the states have a substantial interest in the administration of their prisons, and in the correction of any problems that may arise therein. "The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." Id. at 492, 93 S.Ct. at 1837-38.

If habeas were not the exclusive federal method for challenging the length of a state prison sentence, the exhaustion requirement could be undermined by a section 1983 plaintiff who obtains a federal court's ruling that his sentence is too long. A prevailing section 1983 plaintiff in an action seeking release from jail or other prospective relief could obtain a judgment against state officials in their official capacities. See Will v. Michigan Dep't of State Police, ___ U.S. ___, 109 S.Ct. 2304, 2311 n. 10, 105 L.Ed.2d 45 (1989). Such a judgment might preclude the state from relitigating the issue in a subsequent state habeas proceeding, frustrating the exhaustion requirement and the important considerations of federal-state comity it protects.

Federal-state comity is a concern even where, as here, the prisoner does not specifically request the reduction of his sentence in the section 1983 complaint. Before a district court could award damages to Young, it would have to determine that his jail-time credits were unconstitutionally withheld. Such a ruling would not bar a state from relitigating the issue in a subsequent state habeas proceeding because "neither a State nor its officials acting in their official capacity are `persons' under § 1983" when the relief requested is damages. Will, 109 S.Ct. at 2312. Nevertheless, should a federal court find a term of imprisonment unlawful without first giving the state court system an opportunity to correct its own constitutional errors, it may result in "unnecessary friction between the federal and state court systems." Preiser, 411 U.S. at 490, 93 S.Ct. at 1836. Were the state court then to uphold the sentence, the prisoner would be entitled to bring federal habeas, perhaps in the same district court that had earlier ruled that the sentence was unlawful. The purpose of the exhaustion requirement — to give the state courts the first opportunity to rule on the claims of state prisoners — would accordingly be frustrated. As a result, habeas must be the exclusive federal remedy not just when a state prisoner requests the invalidation or reduction of his sentence, but whenever the requested relief requires as its predicate a determination that a sentence currently being served is invalid or unconstitutionally long.

All nine federal circuit courts to consider this question have arrived at the same conclusion. See Guerro v. Mulhearn, 498 F.2d 1249, 1251-55 (1st Cir.1974) (request for money damages barred where resolution would require determination that state conviction was invalid); Mack v. Varelas, 835 F.2d 995, 998 (2d Cir.1987) (section 1983 action proper where success would not lead to more speedy release); Brown v. Fauver, 819 F.2d 395, 397-99 (3d Cir.1987) (restoration of good-time credits obtainable only via writ of habeas corpus where sentence still being served); Todd v. Baskerville, 712 F.2d 70, 72-73 (4th Cir.1983) (same); Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir. Unit A July 1981) ("any § 1983 action which draws into question the validity of the fact or length of confinement must be preceded by exhausting state remedies," regardless of the relief sought); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir.1985) (per curiam) (federal court must "`stay its hand where disposition of the damage action would involve a ruling implying that a state conviction is or would be illegal'") (quoting Guerro, 498 F.2d at 1252); Hanson v. Heckel, 791 F.2d 93, 94-97 (7th Cir.1986) (per curiam) (claim of unconstitutional deprivation of good-time credits sounds exclusively in habeas where sentence still being served, despite fact that complaint sought damages but not restoration of credits); Offet v. Solem, 823 F.2d 1256, 1258-61 (8th Cir.1987) (federal court must stay section 1983 action for deprivation of good-time credits until plaintiff has exhausted state remedies); Gwin v. Snow, 870 F.2d 616, 626-27 (11th Cir.1989) (section 1983 claim must be treated as habeas petition if relief requested would "undermine" conviction).

Such a rule is not inconsistent with our prior decisions, which have never expressly addressed the question, but point in the same general direction. See Toussaint v. McCarthy, 801 F.2d 1080, 1102-03 (9th Cir.1986) (habeas not exclusive remedy where prisoners seek only to be moved from one location to another within a prison), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 682 (9th Cir.1984) (federal court may not rule on prisoner's section 1983 claim where "although he does not specifically request release, the finding of such declaratory relief in his favor would show that release was required"); Clutchette v. Procunier, 497 F.2d 809, 812-14 (9th Cir.1974) (prisoner may bring section 1983 action to challenge disciplinary procedures having only "speculative and incidental effect" on length of sentence without first exhausting state remedies), modified, 510 F.2d 613 (9th Cir.1975), rev'd on different grounds sub nom. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). See also Bergen v. Spaulding, 881 F.2d 719, 720, 722 (9th Cir.1989) (permitting section 1983 suit for deprivation of good-time credits to proceed where plaintiff no longer serving prison sentence). We become the tenth circuit court to adopt it.

2. Although we join our sister circuits, we share a concern expressed by many of them. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court observed:

The complaint in this case sought restoration of good-time credits, and the Court of Appeals correctly held this relief foreclosed under Preiser. But the complaint also sought damages; and Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings. Respondent's damages claim was therefore properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time, for flagrant or serious misconduct. Such a declaratory judgment as a predicate to a damages award would not be barred by Preiser ....

Id. at 554-55, 94 S.Ct. at 2973-74 (citation and footnote omitted). We are acutely aware that this language appears to conflict with the rule we have just adopted; this passage from Wolff may suggest that the exclusivity of habeas turns on the type of relief requested by the plaintiff. We are not the first court to worry about this problem: Many of the decisions cited above discuss Wolff at length and attempt to distinguish it, none very persuasively. See, e.g., Offet, 823 F.2d at 1259-61; Todd, 712 F.2d at 72-73; Hanson, 791 F.2d at 95-96. While we, too, are unable to come up with a principled way of distinguishing Wolff, we agree with Judge Bowman, writing for the Eighth Circuit, that "to read Wolff as allowing a state prisoner to avoid the exhaustion requirement by artful pleading is to set Wolff at odds with the rationale of Preiser, and we do not believe that the Court intended such a result." Offet, 823 F.2d at 1260.

We would nevertheless feel bound to follow Wolff, and thereby create a conflict with nine of our sister circuits, were it not for a brief excursion made by the Supreme Court at the end of its opinion in Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984)....