*

Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by

designation. 

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.

United States Court of Appeals,

Eleventh Circuit.

Nov. 17, 1999.

Appeals from the United States District Court for the Middle District of Alabama. (No. CV 98-A-153-N),

Harold Albritton, III, Judge.

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
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Kirby appeals only the district court's dismissal of his ex post facto and double jeopardy challenges. 

2

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
3

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.
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Defendants filed a special report with the Magistrate Judge asserting that Edmond failed to state a claim

under 42 U.S.C. § 1983. The Magistrate Judge construed the special report as a motion for summary

judgment and recommended that summary judgment be granted for Defendants on all claims. 

4

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).
 3

We note that Alabama's Community Notification Act contains both a registration and a notification

component. Kirby challenges only the notification provision of the Act. 

5

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 the issues for judicial review. Id. at 139, 87 S.Ct. 1507.

In Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3rd Cir.1996), the Third Circuit

thoroughly examined the ripeness requirement as applied to New Jersey's community notification law.

Artway involved a convicted sex offender who sought an injunction against the enforcement of a New Jersey

statute requiring certain convicted sex offenders to register with local law enforcement officials.
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Additionally, the statute provided for community notification upon the release of certain sex offenders. The

district court upheld the registration component of the statute, but enjoined enforcement of the community

notification provision. On appeal, the Third Circuit held that the challenge to the notification aspects of the

statute was not ripe. We agree with the reasoning of the Third Circuit, and follow its analysis in considering

the State's argument that Kirby's ex post facto and double jeopardy challenges are not ripe.

 To begin with, the court must consider whether Kirby has suffered injury or come into immediate

danger of suffering injury. Artway, 81 F.3d at 1246. This factor inquires whether a credible threat of injury

exists, or rather a mere speculative threat insufficient for Article III purposes. See Babbitt v. United Farm

Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). While pre-enforcement

review is the exception rather than the rule, "[w]hen the plaintiff has alleged an intention to engage in a course

of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder, he should not be required to await and undergo a criminal

prosecution as the sole means of seeking relief." Id. (internal quotations omitted).

 Kirby's challenge to the notification provision of the Act cannot meet this element of the ripeness

requirement. For the notification provision to affect Kirby, there exists a "crucial contingency," Artway, 81

F.3d at 1248, in that the Act must remain in effect and unamended until 30 days prior to Kirby's release from

prison in the year 2005. Whether this contingency will occur is a matter of speculation. The Court may not

pass upon hypothetical matters. Moreover, Kirby faces no hardship from denying review of his notification

challenge at this point; he is not going anywhere and his prior arrest and conviction record is not going to

change. Accordingly, we affirm the district court's dismissal of Kirby's claim on ripeness grounds.

B. EDMOND

Edmond claims that the procedures by which he was classified as a sex offender were insufficient

to satisfy the requirements of the Fourteenth Amendment's Due Process Clause. We agree that the
7

classification implicates a liberty interest, but cannot determine from the record whether the procedures

afforded satisfy constitutional requirements.

 With any procedural due process challenge, we must first determine whether the injury claimed by

the plaintiff is within the scope of the Due Process Clause. Bass v. Perrin, 170 F.3d 1312, 1318 (11th

Cir.1999). The Due Process Clause protects against deprivations of "life, liberty, or property without due

process of law." U.S. Const. Amend. XIV. As Edmond was clearly not deprived of life or property, he is

entitled to due process only if he was deprived of "liberty" within the meaning of the Fourteenth Amendment.

Determining whether one was deprived of liberty presents a unique challenge with prisoners, who are already

deprived of their liberty in the ordinary understanding of the word. The Supreme Court has identified two

situations in which a prisoner can be further deprived of his liberty such that due process is required. The first

is when a change in the prisoner's conditions of confinement is so severe that it essentially exceeds the

sentence imposed by the court. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418

(1995); Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that a prisoner

is entitled to due process prior to being transferred to a mental hospital). The second situation is when the

state has consistently bestowed a certain benefit to prisoners, usually through statute or administrative policy,

and the deprivation of that benefit "imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; Wolff v. McDonnell, 418 U.S.

539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (prisoners may not be deprived of statutory "good-time

credits" without due process). In the first situation, the liberty interest exists apart from the state; in the

second, the liberty interest is created by the state. Bass, 170 F.3d at 1318.

 In this case, the state has not created a liberty interest. It is beyond dispute that state statutes and

regulations may create liberty interests that are entitled to the procedural protections of the Due Process

Clause. See Vitek, 445 U.S. at 488, 100 S.Ct. at 1261. For example, there is no constitutional right to parole.

See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d
8

668 (1979). Nevertheless, once a state grants a prisoner the conditional liberty dependent on the observance

of special parole restrictions, due process protections attach to parole revocation. Vitek, 445 U.S. at 488, 100

S.Ct. at 1261. This case is different. Alabama has not created a liberty interest in not being classified as a

sex offender absent a conviction for a sex related crime. Indeed, the ADOC regulations specifically declare

otherwise. In pertinent part, the regulations provide that "inmates with two or more arrests of record for sex

crimes for which the disposition is unknown or given as dismissed, no billed, nolle prossed, etc., will be

construed as sex offenders for the purpose of classification. Cases adjudicated as not guilty will not be

counted." [R. 13, p. 4]. Thus, Edmond did not "possess any right or justifiable expectation" based on state

law that he would not be classified as a sex offender. Vitek, 445 U.S. at 489, 100 S.Ct. at 1261.

We conclude, however, that Edmond does have a liberty interest in not being branded a sex offender.

The Supreme Court has held that when a change in the prisoner's conditions of confinement is so severe that

it essentially exceeds the sentence imposed by the court, a prisoner is entitled to some procedural protections.

Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; Vitek, 445 U.S. at 492-93, 100 S.Ct. at 1263-64. "There is no

iron curtain drawn between the Constitution and the prisons of this country" and "a prisoner is not wholly

stripped of constitutional protections when he is imprisoned for crime." Wolff, 418 U.S. at 555-56, 94 S.Ct.

at 2974-75. Even after Edmond's conviction for attempted murder, he retains a "residuum of liberty" that

would be infringed by classification as a sex offender without complying with minimum requirements of due

process. Vitek, 445 U.S. at 491, 100 S.Ct. at 1263.

We find support for our conclusion in Vitek v. Jones, supra. There, prisoners challenged a Nebraska

statute authorizing prison officials to classify inmates as "mentally ill" without a hearing and transfer them

to hospitals for involuntary confinement. Vitek, 445 U.S. at 483-86, 100 S.Ct. at 1259-60. The Supreme

Court undertook a thorough examination of the liberty interest implicated by the statute. The Court first held

that the state law created an "objective expectation" that a prisoner would not be transferred unless he suffered

from a mental illness that could not be adequately treated in prison. This objective expectation gave the
9

prisoners a liberty interest entitling them to appropriate procedures in determining the conditions which would

warrant a transfer to a mental hospital. Vitek, 445 U.S. at 489-90, 100 S.Ct. at 1261-62. Additionally, and

important to this case, the Court found that the prisoners had a liberty interest in not being transferred to a

mental hospital independent of state law. Id. at 491, 100 S.Ct. at 1263. The Court concluded that the liberty

interest encompassed both the labeling of the inmate as mentally ill as well as the transfer to the mental

hospital. Id. at 487-88, 100 S.Ct. at 1260-61. Moreover, the Court recognized that the prisoners also faced

the significant stigma associated with mental illness. Id. at 492, 100 S.Ct. at 1263.

The Court also noted that one of the historic liberties protected by the Due Process Clause is the right

to be free from unjustified intrusions on personal security. Id. quoting Ingraham v. Wright, 430 U.S. 651,

97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). The compelled treatment through mandatory behavior modification

programs, to which the prisoners in Vitek were exposed, was a proper factor to be considered by the district

court. Id. The Court concluded that "the stigmatizing consequences of a transfer to a mental hospital for

involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior

modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires

procedural protections." Id. at 494, 100 S.Ct. at 1264.

 Likewise, in this case, the stigmatizing effect of being classified as a sex offender constitutes a

deprivation of liberty under the Due Process Clause. As noted by the Ninth Circuit, "[w]e can hardly

conceive of a state's action bearing more 'stigmatizing consequences' than the labeling of a prison inmate as

a sex offender." A.J. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir.1997). An inmate who has never been

convicted of a sex crime is entitled to due process before the state declares him to be a sex offender. Having

concluded that Edmond has a protected liberty interest in not being classified as a sex offender, the question

becomes whether he received due process in conjunction with the deprivation of that interest. As noted

above, the factual record is insufficient for us to decide this question. Accordingly, we remand this case to
10

the district court for further proceedings consistent with this opinion. We affirm the district court with respect

to Edmond's other claims.

IV. CONCLUSION

In Case No. 98-6236, the judgment of the district court is AFFIRMED. In Case No. 986672, the

judgment of the district court is AFFIRMED IN PART and REVERSED IN PART. The case is REMANDED

to the district court for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED in part.