FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 AUGUST 4, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11144

________________________

D. C. Docket No. 08-01421-CV-LSC-S

SIDNEY GIPSON,

WILLIAM MCGUIRK,

TIMOTHY GUTHERY, and other

similarly situated individuals,

JAMES SASSER,

Plaintiffs-Appellants,

versus

JEFFERSON COUNTY SHERIFF'S OFFICE,

MIKE HALE, Jefferson County Sheriff,

in his official capacity,

STATE OF ALABAMA,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(August 4, 2010)
Before EDMONDSON, BARKETT, and ROTH, Circuit Judges.

*

BARKETT, Circuit Judge:

Sidney Gipson, William McGuirk, Timothy Guthery, and James Sasser

(“Plaintiffs”) appeal the dismissal of their 42 U.S.C. § 1983 suit against Mike Hale,

the Sheriff of Jefferson County, and the State of Alabama. Plaintiffs are civil

detainees who have been convicted of a sex offense and have completed their terms

of imprisonment but nonetheless are kept in state custody. The State keeps them

detained pursuant to Alabama’s Community Notification Act (the “Act”), which

requires individuals convicted of a sex offense to provide a residential address

before the expiration of their sentence or else be “remanded to [] custody at the

time of release.” Ala. Code § 15-20-22(a)(1)(a). Plaintiffs failed to provide the

State with a residential address and, thus, have been kept in custody past the

completion of their sentences.

Plaintiffs allege that they are unable to comply with the Act because they are

indigent and therefore have no residential address. Proceeding under § 1983, they

claim violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments,

the Ex Post Facto Clause, and wrongful imprisonment. Specifically, Plaintiffs

allege that the State is violating their constitutional rights by, inter alia,

 Honorable Jane R. Roth, United States Circuit Judge for the Third Circuit, sitting by *

designation.

2
“automatically imposing incarceration because of indigent status and doing so

without a hearing.” As relief they seek: (1) a procedure to determine whether they

are indigent and if so, how they can comply with the Act without being indefinitely

detained; and (2) a declaration that the Act which keeps them detained is

unconstitutional because it fails to provide a hearing that addresses their indigency.

The district court held that, because 28 U.S.C. § 2254 is the exclusive

remedy for claims where success for the plaintiffs necessarily means “either

immediate release from that confinement or the shortening of its duration,” see

Preiser v. Rodriguez, 411 U.S. 475, 489 (1973), Plaintiffs were precluded from

bringing their claim under § 1983, and dismissed the case. Because the district

court erroneously applied Preiser to Plaintiffs’ claims, we reverse and remand.

DISCUSSION

Although the district court correctly recognized that § 2254 is the exclusive

remedy for claims where success for the plaintiffs would necessarily demonstrate

the invalidity of a conviction or shortening of a sentence imposed by a state court,

see Preiser, 411 U.S. at 487-89, that is not the claim that Plaintiffs are making here.

The essence of Plaintiffs’ case is a claim for procedural due process. The district

court failed to appreciate that this claim, if successful, would not affect the validity

of their conviction nor the resulting sentence imposed, and would not necessarily

3
result in immediate release. Indeed, the Supreme Court has specifically held that,

1

under these circumstances, such a claim is not precluded by § 2254 and can

properly be asserted under § 1983. Wilkinson v. Dotson, 544 U.S. 74 (2005).

In Wilkinson, state prisoners brought an action under § 1983 seeking

declaratory and prospective injunctive relief, claiming that state parole procedures

were unconstitutional. The district court in Wilkinson, as did the district court

here, dismissed the inmates’ claims, ruling that the claims were only cognizable in

a petition for habeas corpus under § 2254. The Supreme Court disagreed, holding

“that § 1983 remains available for procedural challenges where success in the

action would not necessarily spell immediate or speedier release for the prisoner.”

Id. at 81 (emphasis in original). Thus, the Court reasoned, § 2254 did not preclude

the pursuit of such a procedural claim in a § 1983 action. Id. at 82. The Court in

Wilkinson recognized that success for the plaintiffs could eventually lead to their

release, but concluded that § 2254 did not preclude their § 1983 action because the

result of success in their § 1983 action would be an entitlement to a process, not

immediate release. Id. The Supreme Court also permitted the prisoners to seek

2

 Indeed, all the parties now agree that § 2254 does not have any bearing in this case 1

because Plaintiffs have completed their criminal sentences and therefore could not file a petition

under § 2254. In order to file a habeas petition under § 2254, a person must be “in custody

pursuant to the judgment of a State court . . . .” 28 U.S.C. § 2254(b)(1). 

 See also Bradley v. Pryor, 305 F.3d 1287, 1291 (11th Cir. 2002) (holding § 1983 2

available where plaintiff was seeking to compel the government to produce evidence for DNA

4
declaratory relief – similar to the declaratory relief sought by Plaintiffs in this case

– that the parole procedures were unconstitutional. Id. at 79-82. Under Wilkinson,

there is no question that Plaintiffs’ claims for due process and declaratory relief in

this case were properly asserted under § 1983.

In a similar situation, the Sixth Circuit likewise held that § 1983 was

available for a suit challenging the lack of indigency hearings for non-payment of

court fines. Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592 (6th

Cir. 2007). The court in that case held that § 2254 did not preclude the plaintiff

from asserting his claim under § 1983 because the plaintiff “challenge[d] the

flawed procedures used to incarcerate him – that is, the lack of an inquiry into his

ability to pay the court-ordered fine – and not his underlying conviction,” citing to

Wilkinson. Id. at 599, 604. Just as in this case, success for the plaintiff in Powers

“mean[t] only that the failure to grant [him] an indigency hearing was wrongful,”

and therefore the case was properly brought under §1983. Id. at 604-05.

For the same reasons, the district court improperly dismissed Plaintiffs’

claims in this case. Plaintiffs’ core claim is that they are entitled to a proceeding to

address the Act and their indigency which, under Wilkinson, was properly asserted

under § 1983. Contrary to the district court’s conclusion, Plaintiffs are not

testing even if the evidence might lead to the prisoner challenging his conviction and eventually

being released).

5
challenging their sex offense convictions or their (already served) terms of

imprisonment. Therefore, as conceded by the parties, § 2254 is completely

inapplicable in this case and cannot bar this § 1983 action. For these reasons, the

3

district court’s order dismissing this case is REVERSED and the case is

REMANDED for consideration of Plaintiffs’ claims under § 1983.

 The State argues for the first time in its appellate response brief that 28 U.S.C. § 2241, a 3

different habeas corpus statute, requires Plaintiffs to have brought their claims under that statute

and to have exhausted their claims before filing suit in federal court. However, the State fails to

indicate what possible type of exhaustion would be appropriate in a case such as this one

involving civil detainees and no state court judgment or pending state proceeding, as in the cases

cited by the dissent. Regardless, the State never presented this argument to the district court and

therefore waived it on appeal. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d

1298, 1303-04 (11th Cir. 2009) (“By failing to raise the issue to the district court, Appellants

have waived their right to [present their] argu[ment] on appeal . . . .”). 

6
EDMONDSON, Circuit Judge, dissenting:

I believe that the District Court correctly dismissed this case.

Plaintiffs are confined in the custody of Alabama. They, in this civil action,

attack the validity of their confinement; and, along with asking for money damages

and other things, Plaintiffs ask to “be released.” They attack the constitutionality

of the very statute (Ala. Code. § 15-20-22) under which they are held. The District

Court dismissed the action.

I believe the action is barred by Preiser v. Rodriguez, 93 S. Ct. 1827, 1841

(1973), and its progeny, including Heck v. Humphrey, 114 S. Ct. 2364 (1994).

The so-called procedural claim is for the creation of a procedure (the pertinent state

statute on its face has none) by which they could show -- by a defense that the

statute does not seem to recognize -- that the statute’s terms (again the statute

under which they are held) cannot properly apply to them so that they must be set

free. All the relief Plaintiffs seek in their complaint -- including the recognition of

the supposed procedural defect of which they complain -- would necessarily imply

the invalidity of their present detention. This case seems hardly at all like

Wilkinson v. Dotson, 125 S. Ct. 1242 (2005), to me.

Defendants in District Court raised Preiser and so on and claimed that

habeas corpus relief was the sole available federal remedy, given that Plaintiffs

7
attacked the constitutionality of their confinement. To the District Court,

Defendants also specifically mention 28 U.S.C. § 2241 and 28 U.S.C. § 2254.

Citing Preiser and Wilkinson, the District Court concluded that the action was

barred and wrote that habeas relief would need to be pursued. The District Court

did not reference either 28 U.S.C. § 2254 or 28 U.S.C. § 2241 specifically in its

dismissal order.

Defendants’ raising, in District Court, Preiser and its progeny and the need

first for habeas relief seems enough to preserve for appeal the Preiser bar and the

necessity of Plaintiffs’ pursuing habeas relief -- even if 28 U.S.C. § 2241, and not §

2254, is the correct vehicle for federal habeas in the circumstances.

I also believe that 28 U.S.C. § 2241 requires exhaustion of state remedies in

a case like this one. For background, see Hughes v. Attorney Gen. of Fla, 377 F.3d

1258, 1262 & n. 4 (11th Cir. 2004); Fain v. Duff, 488 F.2d 218, 223 (5th Cir.

1973); Ex parte Royall, 6 S. Ct. 734, 741 (1886). So, we cannot just treat the

section 1983 action as a habeas petition and go forward. For reasons of federalstate comity, the Alabama courts -- which, like us, are responsible for upholding

the Federal Constitution -- should be given a chance to act first. I maintain that

Defendants have done nothing to this point to waive an insistence upon Plaintiffs’

exhausting their state remedies.

8
I would affirm the decision of the District Court.

9