William Thornton v. Arnold Schwarzeneggar, et al

Filing

Filed order and amended opinion (MYRON H. BRIGHT, SUSAN P. GRABER and SANDRA S. IKUTA). The opinion and dissenting opinion, filed on July 31, 2013, and published at 724 F.3d 1255, are replaced by the amended opinion and amended dissenting opinion filed concurrently with this order. With these amendments, Judges Bright and Graber have voted to deny the petition for panel rehearing, and Judge Ikuta has voted to grant it. Judge Graber has voted to deny the petition for rehearing en banc, and Judge Bright has so recommended. Judge Ikuta has voted to grant it. The full court has been advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for panel rehearing or petitions for rehearing en banc shall be entertained. ; Amending Disposition Opinion REVERSED AND REMANDED. [8980498]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM CECIL THORNTON,
Plaintiff-Appellant,
v.
EDMUND G. BROWN, JR.,* Governor
of California; MATTHEW CATE,
Secretary of Corrections; LEWIS,
John Doe, Parole Unit Supervisor;
MARK JOSEPH, Parole Agent;
CHRISTINE CAVALIN, Parole Agent;
JOHN DOE #1, Parole Agent,
Defendants-Appellees.

No. 11-56146
D.C. No.
3:10-cv-01583RBB

ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Southern District of California
Ruben B. Brooks, Magistrate Judge, Presiding
Argued and Submitted
November 9, 2012—Pasadena, California
Filed July 31, 2013
Amended February 18, 2014

*

The Honorable Edmund G. Brown, Jr., is substituted for his
predecessor, The Honorable Arnold Schwarzenegger, as Governor of
California. Fed. R. App. P. 43(c)(2).

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THORNTON V. BROWN
Before: Myron H. Bright,** Susan P. Graber,
and Sandra S. Ikuta, Circuit Judges.
Order;
Dissent to Order by Judge O’Scannlain
Opinion by Judge Graber;
Dissent by Judge Ikuta

SUMMARY***

Civil Rights
The panel replaced the opinion and dissenting opinion,
filed on July 31, 2013, and published at 724 F.3d 1255, with
an amended opinion and amended dissenting opinion, denied
a petition for panel rehearing, denied a petition for rehearing
en banc on behalf of the court, and ordered that no further
petitions shall be entertained.
In the amended opinion, the panel reversed the district
court’s order dismissing, pursuant to Fed. R. Civ. P. 12(b)(6),
a civil rights action involving a constitutional challenge to the
imposition and enforcement of two conditions of plaintiff’s
parole: a residency restriction and a requirement that plaintiff
submit to electronic monitoring using a Global Positioning
System device. The panel held that because plaintiff
challenged two parole conditions, which were imposed

**

The Honorable Myron H. Bright, Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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through a discretionary decision of the Department of
Corrections and Rehabilitation, his success would neither
result in speedier release from parole nor imply, either
directly or indirectly, the invalidity of the criminal judgments
underlying that parole term. Therefore Heck v. Humphrey,
512 U.S. 477, 487 (1994), did not bar plaintiff from
proceeding under 42 U.S.C. § 1983. Dissenting, Judge Ikuta
stated that as a matter of California law, plaintiff’s
challenges, if successful, would necessarily demonstrate that
a portion of his underlying sentence was invalid.
Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Bybee, Callahan, Bea and
Ikuta, stated that the panel misapplied Supreme Court
precedent and created a split with the Seventh Circuit, as
described in Judge Ikuta’s dissent. He wrote that as a result
of the panel’s decision, state decisions about parole
conditions will now be subject to far-reaching and searching
review by federal courts in this circuit. He emphasized the
important federalism and practical concerns that warranted
rehearing this case en banc.

COUNSEL
Karen Gal-Or (argued) and Craig E. Stewart, Jones Day, San
Francisco, California, for Plaintiff-Appellant.
Jose A. Zelidon-Zepeda (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Jonathan
L. Wolff, Senior Assistant Attorney General; Thomas S.
Patterson, Supervising Deputy Attorney General, San
Francisco, California, for Defendants-Appellees.

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ORDER

The opinion and dissenting opinion, filed on July 31,
2013, and published at 724 F.3d 1255, are replaced by the
amended opinion and amended dissenting opinion filed
concurrently with this order. With these amendments, Judges
Bright and Graber have voted to deny the petition for panel
rehearing, and Judge Ikuta has voted to grant it. Judge
Graber has voted to deny the petition for rehearing en banc,
and Judge Bright has so recommended. Judge Ikuta has
voted to grant it.
The full court has been advised of the petition for
rehearing en banc. A judge of the court called for a vote on
whether to rehear the matter en banc. On such vote, a
majority of the nonrecused active judges failed to vote in
favor of en banc rehearing.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for panel
rehearing or petitions for rehearing en banc shall be
entertained.

O’SCANNLAIN, Circuit Judge, joined by BYBEE,
CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting
from the denial of rehearing en banc:
Today, a panel of our Court disregards the “strong
considerations of comity” between federal courts and the
States, grasping power for itself where it is “difficult to
imagine . . . a State has a stronger interest.” Preiser v.
Rodriguez, 411 U.S. 475, 491–92 (1973). To reach this

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result, the panel misapplies Supreme Court precedent and
creates a split with the Seventh Circuit, as described in Judge
Ikuta’s compelling dissent. I write to emphasize the
important federalism and practical concerns that warranted
rehearing this case en banc.
I
The central question in this appeal is whether William
Cecil Thornton may challenge his parole conditions under
42 U.S.C. § 1983 or whether he must instead petition for a
writ of habeas corpus. To a casual observer, this issue may
appear trivial, but as the relevant statutory framework and
Supreme Court precedents make clear, the answer to this
question directly implicates our constitutional system’s
respect for state sovereignty and the limitations Congress has
placed on federal judicial power.
As the Supreme Court has observed, federal habeas
review “frustrates both the States’ sovereign power to punish
offenders and their good-faith attempts to honor
constitutional rights.” Calderon v. Thompson, 523 U.S. 538,
555–56 (1998) (internal quotation marks omitted). When a
federal court has authority to review state criminal matters, it
“intrudes on state sovereignty to a degree matched by few
exercises of federal judicial authority.” Harrington v.
Richter, 131 S. Ct. 770, 787 (2011) (quoting Harris v. Reed,
489 U.S. 255, 282 (1989) (Kennedy, J., dissenting)).
In order to “confirm that state courts are the principal
forum for asserting constitutional challenges” to state
confinement, Congress has dramatically restricted federal
habeas review. Id. A petitioner seeking a writ from a federal
court must “first attempt to present his claim in state court.”

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Id. Moreover, a federal court can issue a writ of habeas
corpus only where a state court’s judgment “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. §2254(d)(1)–(2). In this way,
Congress has curtailed federal judicial interference with a
State’s “sovereign power to punish offenders.” Thompson,
523 U.S. at 555.
By contrast, the power of federal courts in § 1983 suits is
far greater—and the intrusion on state sovereignty far more
significant. Unlike a habeas petitioner, a plaintiff suing under
§ 1983 bypasses the state court system and goes directly to
federal court. Patsy v. Bd. of Regents, 457 U.S. 496, 500–01
(1982); Steffel v. Thompson, 415 U.S. 452, 472–73 (1974).
Absent is the notion that “state proceedings are the central
process,” as they are in the habeas context. Richter, 131 S.
Ct. at 787. And whereas federal habeas review entails
deference to a state court judgment unless that judgment is
“beyond any possibility for fairminded disagreement,” id., no
such deference to the States exists in § 1983 suits. For these
and other reasons, § 1983 suits involve “a basic problem of
American federalism,” Monroe v. Pape, 365 U.S. 167, 222
(1961) (Frankfurter, J., dissenting), and this is especially true
in the context of state penal systems. Cf. Thompson, 523 U.S.
at 555.
Against this background, the implications of the panel’s
decision for state sovereignty are obvious. State decisions
about parole conditions will now be subject to far-reaching
and searching review by federal courts in our circuit. Rather

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than reserving federal judicial intervention for cases of
“extreme malfunctio[n]” of state penal systems, as is the case
with habeas review, Burt v. Titlow, 134 S. Ct. 10, 16 (2013)
(alteration in original) (quoting Richter, 131 S. Ct. at 786),
federal judicial involvement in the setting of parole
conditions will now become routine. As Judge Ikuta’s dissent
convincingly argues, challenges to parole conditions fall
within the purview of the federal habeas statute, with all its
attendant limitations on our power. By instead permitting
such challenges to be brought under § 1983, the panel has
worked “a major new intrusion into state sovereignty under
our federal system,” Maine v. Thiboutot, 448 U.S. 1, 33
(1980) (Powell, J., dissenting), something Congress expressly
sought to avoid.
II
The consequences of the panel’s decision go beyond its
disregard of fundamental federalism principles. One of the
key differences between habeas and § 1983 actions is that the
latter holds out the prospect of attorney’s fees for a prevailing
plaintiff. See 42 U.S.C. § 1988(b). As federal courts have
observed on numerous occasions, awarding attorney’s fees in
§ 1983 litigation encourages would-be plaintiffs to bring suits
that might otherwise never make it into court because counsel
have a financial incentive to undertake such cases. See, e.g.,
Dennis v. Chang, 611 F.2d 1302, 1306–07 (9th Cir. 1980).
That incentive is conspicuously lacking in habeas actions,
which means that the likely effect of the panel’s decision will
be a rush of parolees to the federal courthouse steps.
Given the predictable increase in § 1983 litigation the
panel’s opinion will produce, one would expect the panel to
articulate how litigants and district courts will determine

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when a challenge must be brought in habeas. But the panel
remains coy, offering only hints at what may or may not be
relevant considerations in future cases. The panel’s proffered
standard is a mystery, one that the district courts of this
circuit must struggle now to solve.
I respectfully dissent from our regrettable decision not to
rehear this case en banc.

OPINION
GRABER, Circuit Judge:
In this civil rights action under 42 U.S.C. § 1983, Plaintiff
William Cecil Thornton brings a constitutional challenge to
the imposition and enforcement of two conditions of his
parole: a residency restriction and a requirement that he
submit to electronic monitoring using a Global Positioning
System (“GPS”) device. Citing Preiser v. Rodriguez,
411 U.S. 475, 489–90 (1973), and Heck v. Humphrey,
512 U.S. 477, 487 (1994), the district court concluded that
habeas corpus provided the exclusive federal remedy for
Plaintiff’s claims and dismissed the action under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim.
The Supreme Court has not directly considered the
application of the Heck doctrine to § 1983 actions that
challenge conditions of parole. Among the courts of appeals,
only the Seventh Circuit has done so, in Drollinger v.
Milligan, 552 F.2d 1220 (7th Cir. 1977), which considered
conditions of probation, and Williams v. Wisconsin, 336 F.3d
576 (7th Cir. 2003), which considered conditions of parole.

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Consistent with Supreme Court precedent and that of our
sister circuit, we hold that such an action is not barred by
Heck if it is not a collateral attack on either the fact of a
parolee’s confinement as a parolee or the parolee’s
underlying conviction or sentence. Because we conclude that
Plaintiff’s action is not such an attack, we reverse and
remand.
BACKGROUND
California’s Sex Offender Registration Act requires
certain convicted sex offenders to register with law
enforcement officials in the communities in which they
reside. Cal. Penal Code §§ 290(c), 290.005(a). California’s
Sexual Predator Punishment and Control Act of 2006—also
known as Jessica’s Law or Proposition 83—imposes several
requirements that apply to parolees who, as sex offenders, are
subject to that duty to register. One of those requirements is
a residency restriction according to which a person who is
required to register may not “reside within 2000 feet of any
public or private school, or park where children regularly
gather.” Id. § 3003.5(b). Another requirement is that any
person who is convicted of a “registerable sex offense” as
defined by section 290(c)—a section which enumerates
various sex offenses under California law—must submit to
electronic monitoring by a GPS device, either for the duration
of that person’s parole or for life. Id. §§ 3000.07(a), 3004(b).
The state’s Department of Corrections and Rehabilitation
(“the Department”) also has discretionary authority to require
any parolee to submit to electronic monitoring. See id.
§ 3010(a) (providing that “the [Department] may utilize
continuous electronic monitoring to electronically monitor
the whereabouts of persons on parole”).

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In 2011, a California trial court ruled that section
3003.5(b)’s residency restriction, when applied to all
registered sex offenders as a “blanket” parole condition, was
unconstitutional. In re Taylor, 147 Cal. Rptr. 3d 64, 67–68
(Ct. App. 2012). The appellate court affirmed the lower
court’s order, which prohibited the “blanket enforcement of
the residency restriction”; but the court also held that the
Department “may, after consideration of a parolee’s
particularized circumstances, impose a special parole
condition that mirrors section 3003.5(b) or one that is more
or less restrictive.” Id. at 83–84.1
In 1987, Plaintiff pleaded guilty in Tennessee to sexual
battery. In 2006, he was convicted in California of buying or
receiving stolen property and was sentenced to a 16-month
term of imprisonment. California law requires a period of
parole or supervised release following such a prison term,
Cal. Penal Code § 3000, and when Plaintiff was released in
June 2008, he received a three-year parole term. Citing
Plaintiff’s previous Tennessee offense, the Department
imposed, as parole conditions, a GPS monitoring requirement
(pursuant to section 3010 of the Penal Code) and a residency
restriction prohibiting him from living within 2000 feet of
schools or parks where children gather (pursuant to section
3003.5(b)). Plaintiff was later convicted of robbery and was
sentenced to a three-year prison term for that offense,
pursuant to California Penal Code section 1170. Again,
California law required a term of parole to follow his
sentence. Cal. Penal Code § 3000. While he was in prison,
the Department issued new parole conditions that would

1

The California Supreme Court has granted the state’s petition for
review of that ruling. In re Taylor, 290 P.3d 1171 (Cal. 2013).

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apply upon his release. Those conditions included the same
GPS monitoring requirement and residency restriction.
During his second prison term, Plaintiff filed this action
under 42 U.S.C. § 1983, seeking both monetary and
injunctive relief. He alleges that the Department violated his
constitutional rights by imposing the GPS monitoring
requirement and residency restriction as parole conditions and
by enforcing those conditions in an arbitrary or
discriminatory manner. The district court reasoned that, as a
parolee, Plaintiff was “in custody” within the meaning of the
federal habeas corpus statute, 28 U.S.C. § 2254. It further
reasoned that, under the Heck doctrine, a habeas petition is
the exclusive means by which Plaintiff can challenge a
condition of his parole. Accordingly, the district court
dismissed the claim.
Plaintiff timely appeals. We review de novo the legal
issues presented here. Barker v. Riverside Cnty. Office of
Educ., 584 F.3d 821, 824 (9th Cir. 2009).
DISCUSSION
A. Immunity
Plaintiff’s claims against the Governor, the Secretary of
Corrections, and a Parole Unit Supervisor are limited to
injunctive relief. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989) (citing Eleventh Amendment
considerations and holding that § 1983 does not permit suits
for damages against states); Doe v. Lawrence Livermore Nat’l
Lab., 131 F.3d 836, 839 (9th Cir. 1997) (holding that “state
officials sued in their official capacities are not ‘persons’
within the meaning of § 1983” except when “sued for

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prospective injunctive relief”). Neither absolute nor qualified
immunity bars Plaintiff’s claims against those defendants.
See, e.g., Buckwalter v. Nev. Bd. of Med. Exam’rs, 678 F.3d
737, 747 (9th Cir. 2012) (“Absolute immunity is not a bar to
injunctive or declaratory relief.”); Vance v. Barrett, 345 F.3d
1083, 1091 n.10 (9th Cir. 2003) (“[A] defense of qualified
immunity is not available for prospective injunctive relief.”).
Absolute immunity does bar Plaintiff’s claims for
damages against his parole officers for imposing allegedly
unconstitutional parole conditions. We have held that
absolute immunity “extend[s] to parole officials for the
‘imposition of parole conditions’” because that task is
“integrally related to an official’s decision to grant or revoke
parole,” which is a “quasi-judicial” function. Swift v.
California, 384 F.3d 1184, 1189 (9th Cir. 2004) (quoting
Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983)). Both
parole conditions currently in effect were imposed through
particularized and discretionary decisions by parole officers.
The GPS condition was imposed pursuant to the
Department’s discretionary authority under section 3010 of
the California Penal Code,2 and the residency restriction
“mirrors” section 3003.5(b), which, as interpreted by the
California courts, permits such a condition only “after
consideration of a parolee’s particularized circumstances.”
Taylor, 147 Cal. Rptr. 3d at 83–84. Accordingly, the parole
officers are absolutely immune with respect to Plaintiff’s

2

Although sections 3000.07(a) and 3004(b) of the Penal Code require
the Department to impose a GPS monitoring condition for any parolee
convicted of a “registerable sex offense” under section 290(c), that
subsection lists only crimes under California law. Thus, Plaintiff’s
condition, which relates to a conviction under Tennessee law, reflects an
exercise of the Department’s discretion under section 3010.

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claims for damages arising from the imposition of those
conditions.
Absolute immunity does not extend, though, to Plaintiff’s
claim that the parole officers enforced the conditions of his
parole in an unconstitutionally arbitrary or discriminatory
manner. Parole officers’ “immunity for conduct arising from
their duty to supervise parolees is qualified.” Anderson,
714 F.2d at 910. Plaintiff’s allegation that the officers
enforced the residency restriction against him but not against
similarly situated parolees relates to the manner in which
Defendants implemented that condition—an element of their
supervisory function. Absolute immunity therefore does not
apply to Plaintiff’s enforcement-based claim. However, the
district court also dismissed this claim as barred by qualified
immunity. On appeal, Plaintiff does not challenge that ruling
except to the extent that it bars him from pursuing injunctive
relief. Because qualified immunity does not bar injunctive
relief, Vance, 345 F.3d at 1091 n.10, Plaintiff may assert his
non-monetary claim arising from the allegedly discriminatory
enforcement of his parole conditions.
B. Heck Doctrine
With respect to his claims for injunctive relief, the
question remains whether Plaintiff appropriately brought
those claims under § 1983 instead of through a petition for
habeas corpus.
Persons subject to state custody generally “have two
potential avenues to remedy violations of their federal
constitutional rights: a habeas petition under 28 U.S.C.
§ 2254, and a civil suit under 42 U.S.C. § 1983.” Osborne v.
Dist. Attorney’s Office, 423 F.3d 1050, 1053 (9th Cir. 2005)

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(citing Heck, 512 U.S. at 480). In Preiser, the Supreme Court
addressed “‘the extent to which § 1983 is a permissible
alternative to the traditional remedy of habeas corpus,’”
Docken v. Chase, 393 F.3d 1024, 1027 (9th Cir. 2004)
(quoting Preiser, 411 U.S. at 500), and held that § 1983
implicitly excludes from its coverage claims that lie “within
the core of habeas corpus,” Preiser, 411 U.S. at 487–88.3
Thus, a person who is in state custody may not use § 1983 to
challenge “the very fact or duration of . . . confinement” by
seeking “a determination that he is entitled to immediate
release or a speedier release from that imprisonment”—for
example, an injunction requiring prison officials to grant
good-time credits that would shorten his prison term. Id. at
499–500. In Heck, the Court elaborated on the exception set
forth in Preiser, holding that a state prisoner may not
maintain a § 1983 claim for damages if “a judgment in favor
of the plaintiff would necessarily imply the invalidity of his
conviction or sentence” with respect to a prior judgment that
has not been nullified previously. Heck, 512 U.S. at 484,
487.
Not all claims that are cognizable in habeas are precluded
from § 1983’s scope under that standard; rather, there are
“instances where the same constitutional rights might be
redressed under either form of relief.” Wolff v. McDonnell,
418 U.S. 539, 579 (1974); see also Osborne, 423 F.3d at 1055
(rejecting “the notion that a claim which can be brought in

3

The Supreme Court rested this conclusion on its observation that “the
language of the habeas statute is more specific, and the writ’s history
makes clear that it traditionally ‘has been accepted as the specific
instrument to obtain release from [unlawful] confinement.’” Wilkinson v.
Dotson, 544 U.S. 74, 79 (2005) (alteration in original) (quoting Preiser,
411 U.S. at 486–87).

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habeas must be brought in habeas”).4 Thus, the fact that a
§ 1983 plaintiff is “in custody” and therefore may file a
habeas petition challenging the unlawfulness of that custody
does not, by itself, determine whether the § 1983 claim is
available. Instead, a claim that meets the statutory criteria of
§ 1983 may be asserted unless its success would release the
claimant from confinement or shorten its duration, Preiser,
411 U.S. at 500, or would necessarily imply the invalidity of
the conviction or sentence, Heck, 512 U.S. at 487. See also
Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (explaining that
Preiser and Heck bar a § 1983 claim only if that claim will
either result in a “speedier release” from custody or “a
judicial determination that necessarily implies the
unlawfulness of the State’s custody”).5
A state parolee is “in custody” for purposes of the federal
habeas statute, Jones v. Cunningham, 371 U.S. 236, 243
(1963), and may challenge parole conditions imposed by a
state correctional department through a habeas petition under
28 U.S.C. § 2241, Bagley v. Harvey, 718 F.2d 921, 922–23
(9th Cir. 1983). But neither we nor the Supreme Court has
addressed previously whether, or under what circumstances,
4

See also Preiser, 411 U.S. at 499 (noting that habeas and § 1983 may
provide alternative means to challenge prison conditions); Skinner v.
Switzer, 131 S. Ct. 1289, 1299 (2011) (raising, without deciding, the
question whether “habeas [is] the sole remedy, or even an available one,”
for certain types of claims).
5

We discern little, if any, disagreement between our and the dissent’s
understandings of these governing principles. The dissent discusses the
facts of Dotson in some detail, but we do not find those facts particularly
relevant to this case. In Dotson, the plaintiffs were prisoners who sought,
in a § 1983 action, relief that would have entitled them to a new parole
hearing. They did not challenge any parole conditions that might
accompany their eventual release from prison.

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Heck’s implicit exception to § 1983 applies to such a claim.
Here, we hold that Plaintiff’s claims, which challenge two
parole conditions, do not fall within that exception, because
a judgment enjoining enforcement of his GPS monitoring
requirement and residency restrictions will neither affect the
“fact or duration” of his parole nor “necessarily imply” the
invalidity of his state-court conviction or sentence.
The only federal court of appeals to have decided how
Heck applies to the conditions of a non-physical form of
custody is the Seventh Circuit, which addressed the issue in
Drollinger, 552 F.2d 1220.
In dismissing a state
probationer’s § 1983 claim challenging a condition of her
probation, that court identified the crux of the issue:
“Because probation is by its nature less confining than
incarceration, the distinction between the fact of confinement
and the conditions thereof is necessarily blurred.”6 Id. at
1225. However “blurred” this line might appear at first blush,
in California a parolee’s status is legally and factually distinct
from his conditions of parole. “In California, parolee status
carries distinct disadvantages when compared to the situation
of the law-abiding citizen.” People v. Lewis, 88 Cal. Rptr. 2d
231, 236 (Ct. App. 1999). A parolee remains a “prisoner”
under California law and is subject at all times to the
jurisdiction of the Department, which may impose or alter

6

It bears noting that Drollinger involved a challenge to a condition of
probation, a status that the Supreme Court has held to be less akin to
imprisonment than parole. Samson v. California, 547 U.S. 843, 850 & n.2
(2006) (“As we noted in [United States v. Knights, 534 U.S. 112, 119
(2001)], parolees are on the ‘continuum’ for state-imposed punishments.
On this continuum, parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation
is to imprisonment.”

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conditions at will for the duration of the term of parole.7 Id.
The conditions imposed by the Department, like those
challenged here, are simply an exercise of that jurisdiction,
which remains unaffected by even a successful challenge to
particular conditions placed on the parolee.8
Moreover, the distinction between the “fact” and
“duration” of imprisonment, on the one hand, and the
“conditions” of imprisonment, on the other hand, is a
distinction that Supreme Court precedent has created: a
prisoner may challenge the “fact” or “duration” of
imprisonment only through a habeas proceeding, but may
challenge “conditions” of confinement in an action under
§ 1983. Heck, 512 U.S. at 480–81; Preiser, 411 U.S. at 500.
Nor is it difficult to apply that distinction in most cases. See,
e.g., Roles v. Maddox, 439 F.3d 1016, 1017–18 (9th Cir.
2006) (holding that a challenge to the confiscation of
magazines in prison pertains to a condition of confinement,
which is properly brought under § 1983, and collecting
cases); Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002)
(“It has been clear for over thirty years that a state prisoner
seeking injunctive relief against the denial or revocation of

7

See, e.g., California Department of Corrections and Rehabilitation
Operations Manual 81010.16.1–19.1 (Jan. 1, 2013) (providing that a
parole agent has the authority to modify or impose new special conditions
orally, at any time, as long as written notice is provided to the parolee
within five days).
8

Indeed, a contrary view would lead to an arbitrary incongruity in the
scope of available remedies: Prisoners would have two potential means
to challenge aspects of their custody, whereas parolees would have only
one. We see no need to allow the Preiser exception to swallow the rule
that § 1983’s broad text provides a remedy for unlawful conditions of
confinement.

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good-time credits must proceed in habeas corpus, and not
under § 1983.”); Bennett v. King, 293 F.3d 1096, 1098 (9th
Cir. 2002) (holding that a claim concerning harassment by
prison guards is a challenge to a condition of confinement,
which is properly brought under § 1983). The same line must
be drawn for parole as for incarceration because, as explained
above, in California parole is simply a less onerous form of
imprisonment and the parolee is still considered a prisoner.
Here, Plaintiff does not challenge his status as a parolee
or the duration of his parole and, even if he succeeds in this
action, nearly all of his parole conditions will remain in
effect. Those conditions include drug and alcohol testing and
treatment; psychiatric and behavioral counseling; limitations
on travel, employment, association with certain individuals,
patronage of certain businesses, and the use of motor
vehicles; a curfew; numerous sex-offender registration
requirements; a duty not to contact his robbery victim; and
other restrictions. In these circumstances, we hold that his
challenge to two parole conditions does not threaten his
“confinement” as a parolee. See Jones, 371 U.S. at 242–43
(explaining that a parolee’s “release” into the custody and
control of the Parole Board “involves significant restraints on
[the parolee’s] liberty because of his conviction and sentence,
which are in addition to those imposed by the State upon the
public generally”). Thus, even if the line between conditions
of confinement and the fact thereof may be “blurred” in some
cases, it is clear that Plaintiff’s claims in this case do not seek
“speedier release” from his confinement within the meaning
of Preiser’s exception to § 1983.9

9

We need not and do not decide whether we would reach a different
result were Plaintiff challenging all or a substantial portion of his parole
conditions. The dissent declares our holding “unworkable” because a

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Moreover, because Plaintiff challenges only the
discretionary decisions of the Department in imposing the
GPS monitoring and residency restrictions, his success would
not imply the invalidity of his conviction or sentence. The
focus of the Supreme Court’s inquiry in Heck was whether a
plaintiff’s success on a § 1983 claim would call into question
a state court’s judgment. See Heck, 512 U.S. at 484–86 & n.4
(relying on a common-law rule against “collateral attack on
[a criminal] conviction through the vehicle of a civil suit” and
determining that Ҥ 1983, which borrowed general tort
principles, was not meant to permit such collateral attack”
(internal quotation marks omitted)). We have held that a
claim does not “necessarily imply” the invalidity of a
conviction or sentence under Heck unless its success will
“inevitably” call into question the state court judgment that
led to the plaintiff’s custody. Osborne, 423 F.3d at 1055
(citing Dotson, 544 U.S. at 78–82). Consistent with this
view, the Seventh Circuit, in Drollinger, concluded that
habeas relief was the exclusive relief available to challenge
a probation condition imposed under Indiana law only after
determining that, under state law, the challenged condition
was part of the sentence imposed by the state court:
Our analysis of the Indiana statutes
authorizing the granting of probation
demonstrates [that] . . . [i]n placing a
defendant on probation the trial court is
parolee’s challenge to 5, 7, or more parole conditions arguably could
amount to a challenge to the fact of his or her parole itself. Like the
dissent, we eschew a numerical approach, and we do not rely on the
number of conditions challenged to reach our holding. We merely note
that Plaintiff’s challenge is quite narrow and is focused on the nature of
specific conditions of parole, rather than on his parole’s existence or its
duration.

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required to impose conditions concerning the
manner in which the defendant must conduct
himself. . . . [The plaintiff’s] challenge to the
conditions of her probation is, therefore, an
attack on the sentence of the trial court.

552 F.2d at 1224–25 (citations omitted).10
This case is distinguishable from Drollinger, though,
because the parole conditions that Plaintiff challenges were
not imposed as part of a court judgment. Rather, the
Department imposed the GPS monitoring requirement
pursuant to its discretionary authority under section 3010 of
the Penal Code, and the Department imposed the residency
restriction pursuant to the individualized assessment
permitted by section 3000.5(b), as interpreted in Taylor,
147 Cal. Rptr. 3d at 67–68. Even if successful, Plaintiff’s
claims will have no effect on his criminal sentence, including
the duration of his parole. Because Plaintiff challenges only
the discretionary decisions of an administrative body, it is
unlike the Indiana probation condition considered in
Drollinger.11 And because a judgment in Plaintiff’s favor
10

Drollinger was decided before the Supreme Court issued Heck, so the
Seventh Circuit did not have the benefit of that later decision, which
explained Preiser in light of a policy of preventing implicit collateral
attack on state criminal judgments. But the Seventh Circuit limited its
holding to probation conditions that, under state law, were part of the
sentencing court’s judgment. Thus, Drollinger is consistent with Heck.
11

The Seventh Circuit’s statement in Williams that Preiser probably
barred a § 1983 challenge to numerous parole conditions extended
Drollinger’s rule for probation conditions to the parole context without
explaining why that extension was justified. Williams, 336 F.3d at
579–80. In particular, in Williams, the court concluded without discussion
that under the state law in question, parole did not exist apart from its

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would neither shorten nor alter any sentence or judgment of
a state court, it is unlike the administrative proceedings
relating to good-time credits that were at issue in Preiser. Cf.
Dotson, 544 U.S. at 82 (holding that Preiser’s exception does
not bar a § 1983 claim seeking “relief that will render invalid
the state procedures” that relate to a prisoner’s custody but
would not necessarily require early release from the prison
sentence). Because his challenge to discretionary decisions
of the Department will not affect his court-imposed prison
term or result in release from parole, Plaintiff’s possible
success in this action would not “necessarily imply” the
invalidity of any state-court judgment.12 We need not and do

conditions. But as noted, under California law, the status of parole does
exist, and has legal consequences, wholly apart from conditions imposed
by the Department. Moreover, the court in Williams did not address
whether the conditions that the parolee challenged were part of the state
court’s judgment or were instead, as in this case, discretionary conditions
imposed by an executive authority. To the extent that our holding is in
tension with the Seventh Circuit’s decisions in Drollinger and Williams,
we simply are not persuaded by them.
12

The dissent interprets California law, as we do, to provide the
Department with the discretionary authority to choose and impose parole
conditions. Amended dissent at 27–28; see also Kevin R. v. Superior
Court, 120 Cal. Rptr. 3d 549, 554 (Ct. App. 2010) (“The power to grant
parole, including setting parole conditions, is vested in the board, not the
courts.”). Unlike us, though, the dissent concludes that in challenging
those discretionarily selected parole conditions, Plaintiff “is challenging
a statutorily-mandated component of his sentence.” Amended dissent at
28. We do not agree that such a conclusion follows. Just as authority is
vested in the Department to administer prisons and set prison conditions,
so, too, the Department has the authority to administer the parole system,
including the imposition and modification of parole conditions. This
authority is wholly distinct from the sentencing authority of a state court
and does not per se implicate any state court judgment. See In re Coca,
149 Cal. Rptr. 465, 471 (Ct. App. 1978) (noting that a court would usurp

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not decide whether we would reach a different result had the
Department merely implemented a parole condition that was
required by statute as a direct consequence of a court’s
judgment of conviction or sentence.
Furthermore, because Plaintiff’s claim, had it been
brought in habeas, likely would proceed under § 2241, see
Bagley, 718 F.2d at 922–23, it is a type of habeas claim to
which no court has previously extended Preiser’s implicit
exception to the text of § 1983.13 We do not rely on this
technical distinction between § 2241 and § 2254 of the habeas
statute in reaching our decision, but we note that the same
consideration drives our reasoning: that Plaintiff does not
challenge a judgment of conviction or a sentence. Compare
28 U.S.C. § 2254(a) (providing habeas relief for unlawful
“custody pursuant to the judgment of a State court”) with id.
§ 2241(c) (providing relief for other forms of unlawful

the Department’s administrative authority to require, for example, new
prison facilities to be built).
13

Generally, decisions in which courts have applied Preiser to bar a
§ 1983 claim have specifically noted the applicability of 28 U.S.C. § 2254.
See, e.g., Heck, 512 U.S. at 480 (“This case lies at the intersection of . . .
42 U.S.C. § 1983[] and . . . 28 U.S.C. § 2254.”); Preiser, 411 U.S. at 477
(“[T]he federal habeas corpus statute, 28 U.S.C. § 2254, clearly provides
a specific federal remedy.”); Osborne, 423 F.3d at 1053 (noting that the
claim at issue was cognizable under § 2254); Ramirez v. Galaza, 334 F.3d
850, 854 (9th Cir. 2003) (same); Neal v. Shimoda, 131 F.3d 818, 823 (9th
Cir. 1997) (same); Fierro v. Gomez, 77 F.3d 301, 304 (9th Cir. 1996)
(same); see also McQuillion v. Schwarzenegger, 369 F.3d 1091, 1094 (9th
Cir. 2004) (noting the plaintiff’s concurrent § 2254 habeas action).

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custody).14 We need not and do not decide whether the
availability of a § 2241 claim may ever bar a parolee from
proceeding under § 1983. It is sufficient that, here, the same
reasons that would place Plaintiff’s claim within the scope of
§ 2241 also demonstrate that it is not “a collateral attack on
[a] conviction [or sentence] through the vehicle of a civil
suit,” Heck, 512 U.S. at 484, and is therefore different in kind
from the types of habeas claims for which the Supreme Court
has determined that habeas relief is exclusive.
The dissent asserts that our decision will “muddle the
clear line Heck and Dotson drew,” and run contrary to
Skinner v. Switzer, 131 S. Ct. 1289, 1298 n.12 (2011).
Amended dissent at 31 (internal quotation marks omitted).
What the dissent neglects is that the “clear line” that the
Supreme Court referred to in Skinner is the rule that Heck
bars a § 1983 action only if the action’s success will
necessarily imply the invalidity of a state court’s judgment.
Id. at 1298–99 (permitting a prisoner’s § 1983 claim that
sought potentially exonerating DNA testing because success
would not “necessarily” imply the invalidity of the prisoner’s
conviction); see also Nelson v. Campbell, 541 U.S. 637, 647
(2004) (“[W]e were careful in Heck to stress the importance
of the term ‘necessarily.’”). Here, we adhere to the Supreme

14

We have drawn a similar distinction between habeas claims by federal
prisoners against federal parole determinations and those that challenge
the original sentence. See Izsak v. Sigler, 604 F.2d 1205, 1206 n.1 (9th
Cir. 1979) (“Habeas corpus, an attack on the legality of incarceration and
not a collateral attack on judgment, is the proper vehicle for attacking
Parole Commission action. Andrino v. United States Board of Parole,
550 F.2d 519 (9th Cir. 1977) [(per curiam)]. A collateral attack on the
sentence imposed brought under 28 U.S.C. § 2255 will not lie.”); Andrino,
550 F.2d at 520 (holding that a habeas petition under § 2241 is the
appropriate vehicle for such attacks).

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Court’s “clear line.” Because his success in this action would
not necessarily imply the invalidity of either his conviction or
sentence, Plaintiff may proceed under § 1983.
In sum, we hold that a state parolee may challenge a
condition of parole under § 1983 if his or her claim, if
successful, would neither result in speedier release from
parole nor imply, either directly or indirectly, the invalidity
of the criminal judgments underlying that parole term.
Because Plaintiff challenges two parole conditions, which
were imposed through a discretionary decision of the
Department, his success would do neither, and Heck does not
bar him from proceeding under § 1983.
REVERSED AND REMANDED.

IKUTA, Circuit Judge, dissenting:
As a matter of California law, Thornton’s challenges, if
successful, would necessarily demonstrate that a portion of
his underlying sentence was invalid. Because the Supreme
Court has held such challenges must be brought in a habeas
petition, not under § 1983, I would affirm the district court.
In holding otherwise, the majority misunderstands California
law, misapplies Supreme Court precedent, and creates a
circuit split with the Seventh Circuit.
I
In 2010, Thornton was convicted of robbery in California
state court. He was sentenced under California’s determinate
sentencing law, Cal. Penal Code § 1170, to a two-year

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sentence for the robbery offense and a one-year consecutive
term for a prior offense. See id. §§ 211, 213 (robbery),
667.5(b) (consecutive term). As required by California law,
id. § 3000(b)(7), the California Department of Corrections
and Rehabilitation (the CDCR) defined the term and
conditions of Thornton’s parole, which included a GPS
monitoring requirement and a residency restriction. Thornton
challenged these conditions under 42 U.S.C. § 1983 on the
grounds that they violated his rights under the First, Eighth,
and Fourteenth Amendments, and sought damages and
injunctive relief.
A
Section 1983 provides that: “Every person who, under
color of [state law], subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
Because Thornton claims that the CDCR, under color of
California law, deprived him of his constitutional rights, the
plain language of the statute seems applicable.
But beginning with Preiser v. Rodriguez, 411 U.S. 475
(1973), the Supreme Court carved out “an implicit exception
from § 1983’s otherwise broad scope for actions that lie
‘within the core of habeas corpus.’” Wilkinson v. Dotson,
544 U.S. 74, 79 (2005) (quoting Preiser, 411 U.S. at 487). In
Preiser, the Court reasoned that “even though the literal terms
of § 1983 might seem to cover” a claim, “because Congress
has passed a more specific act,” namely the federal habeas
statute, to cover state prisoners’ constitutional challenges to
their convictions and sentences, prisoners bringing such

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claims are limited to habeas relief. 411 U.S. at 489. The
Court concluded that any prisoner complaint lying at “the
core of habeas corpus” cannot be pursued under § 1983. Id.
Following Preiser, the Court decided a series of cases
spelling out what actions lie within the “core of habeas
corpus” and therefore cannot be brought in a § 1983 action.
Dotson, 544 U.S. at 81–82. Among other limitations, relief
under § 1983 is not available for actions that would
“necessarily imply the unlawfulness of a (not previously
invalidated) conviction or sentence” or of “state
confinement.” Id. at 81 (citing Heck v. Humphrey, 520 U.S.
477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997)).
Summing up, Dotson held that “a state prisoner’s § 1983
action is barred (absent prior invalidation)—no matter the
relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings)—if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration.” Id. at 81–82. Applying these
considerations in the parole context, Dotson then analyzed
whether the prisoners’ challenges to certain parole procedures
would necessarily challenge the fact or duration of their
confinement. Id. at 82. Because the prisoners’ lawsuits, if
successful, would, at most, give them a new parole hearing,
Dotson determined their challenges did not necessarily imply
the invalidity of their sentence or confinement under Heck,
and therefore could proceed under § 1983. Id. at 82–84.
B
Here, if Thornton were successful in his challenge to the
parole conditions imposed by the CDCR, it would necessarily
imply the invalidity of a portion of his sentence.

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We must look to California law to determine what
constitutes Thornton’s “sentence.” “States are independent
sovereigns with plenary authority to make and enforce their
own laws,” including the definition of crimes and
punishments, “as long as they do not infringe on federal
constitutional guarantees.” Danforth v. Minnesota, 552 U.S.
264, 280 (2008); see also Muhammad v. Close, 540 U.S. 749,
754–55 (2004) (looking to state laws governing the effect of
prison disciplinary proceedings on good-time credits to
determine whether a § 1983 claim was barred under Heck).
Under section 3000 of the California Penal Code, every
sentence imposed on a defendant convicted under
California’s determinate sentencing law, Cal. Penal Code
§ 1170, must include a period of parole. Id. § 3000(a)(1) (“A
sentence resulting in imprisonment in the state prison
pursuant to Section 1168 or 1170 shall include a period of
parole supervision or postrelease community supervision,
unless waived, or as otherwise provided in this article.”)
(emphasis added). To effectuate this statutory requirement,
the CDCR “shall provide . . . the conditions of parole and the
length of parole up to the maximum period of time provided
by law.” Id. § 3000(b)(7);1 see also Kevin R. v. Super. Ct.,
1

Cal. Penal Code § 3000(b)(7) states, in pertinent part:
The Department of Corrections and Rehabilitation shall
meet with each inmate at least 30 days prior to his or
her good time release date and shall provide, under
guidelines specified by the parole authority or the
department, whichever is applicable, the conditions of
parole and the length of parole up to the maximum
period of time provided by law.

Thus, the CDCR has a mandatory statutory obligation to define the
conditions and length of parole “under guidelines specified by the parole
authority or the department.”

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191 Cal. App. 4th 676, 684 (2010) (stating that “[t]he
[CDCR] has expansive authority to impose any parole
conditions deemed proper” in determining this part of a
defendant’s sentence).2
Because Thornton was sentenced under section 1170 for
his 2010 robbery offense, his sentence necessarily included
the term and conditions of parole set by the CDCR, Cal.
Penal Code § 3000(a)(1), (b)(7). In challenging his parole
conditions, then, Thornton is challenging a statutorilymandated component of his sentence, and if he is successful,
it would necessarily imply the invalidity of a portion of his
sentence. Therefore, under the rules explained in Dotson, he
may not bring this challenge under § 1983. See 544 U.S. at
81–83.
C
Accordingly, the majority errs in concluding that the
discretionary conditions imposed by the CDCR are not part
of Thornton’s sentence. Am. maj. op. at 20–22. The root of
the majority’s error is its ill-founded attempt to distinguish
between the status of parole and its conditions. The majority
analogizes the distinction between the “status” and

2

The majority observes that the CDCR “may impose or alter conditions
at will for the duration of the term of parole,” citing the CDCR’s
operations manual. Am. maj. op. at 17 n.7. While it is true that, pursuant
to a regulation promulgated under the authority granted by sections 3052
and 5076.2 of the Penal Code, the CDCR must “establish and impose the
special conditions of parole” for prisoners sentenced under the determinate
sentencing law, like Thornton, Cal. Code Regs. tit. 15, § 2510, that is
irrelevant to whether, if successful, his challenges to some of his parole
conditions would necessarily imply the invalidity of a portion of his
sentence.

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“conditions” of parole to the distinction between the status of
being a prisoner and the conditions of confinement, and
asserts that a parolee’s “status” exists regardless whether the
CDCR has imposed or altered conditions. Am. maj. op. at
17–18. Merely restating this argument shows its flaw: A
prisoner is confined in prison regardless of any particular
condition of confinement, while a parolee is not confined or
restricted at all in the absence of parole conditions. Rather,
due to the nature of parole, “[t]he elimination or substitution”
of one condition would free the parolee “substantially from
[his] confinement; figuratively speaking, one of the ‘bars’
would be removed from [the parolee’s] cell.” Drollinger v.
Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977). A person’s
technical “status” as a parolee has little or no meaning if all
the prison bars have been removed.
More important, California courts have not recognized a
distinction between the status and conditions of parole.
Under California law, a parolee in California is confined and
“constructively a prisoner” because of the conditions of
parole. People v. Lewis, 74 Cal. App. 4th 662, 669 (1999).
The California Supreme Court has explained that “[a]lthough
a parolee is no longer confined in prison his custody status is
one which requires . . . restrictions which may not be imposed
on members of the public generally.” People v. Burgener,
41 Cal. 3d 505, 531 (1986) (in bank). The United States
Supreme Court views the requirement that “the prisoner abide
by certain rules” while released from physical custody as
“[t]he essence of parole,” Samson v. California, 547 U.S.
843, 850 (2006) (quoting Morrissey v. Brewer, 408 U.S. 471,
477 (1972)) (internal quotation marks omitted), because the
conditions of parole “significantly confine and restrain” a
parolee’s freedom to the point where a parolee is “in custody”
for habeas purposes like a person confined by prison walls.

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Jones v. Cunningham, 371 U.S. 236, 243 (1963). A parolee
possesses “not . . . the absolute liberty to which every citizen
is entitled, but only . . . the conditional liberty properly
dependent on observance of special parole restrictions.”
Lewis, 74 Cal. App. 4th at 670 (quoting Morrissey, 408 U.S.
at 477, 480) (internal quotation marks omitted). In sum,
California considers parole to be “custody” because of the
conditions imposed on the parolee, so there is no basis to
conclude that the “status” of being a parolee is part of a
defendant’s sentence but parole conditions are not. See id.
Perhaps recognizing that the “status” of parole necessarily
evaporates if a released prisoner is no longer subject to any
“conditions” of parole, the majority offers a second and
inconsistent reason that Thornton’s challenge to two
conditions may proceed under § 1983: such an action is
permissible because “nearly all of [Thornton’s] parole
conditions will remain in effect” even if Thornton is
successful. Am. maj. op. at 18; see also am. maj. op. at 16
(emphasizing that Thornton “challenge[s] two parole
conditions”); am. maj. op. at 24 (same). Indeed, the majority
hints it might “reach a different result were [Thornton]
challenging all or a substantial portion of his parole
conditions.” Am. maj. op. at 18 n.9. Yet logically, if the
“status” of parole is distinct from the conditions of parole, it
should be irrelevant how many conditions Thornton
challenges. See Am. maj. op. at 16–17 (indicating that it is the
CDCR’s “jurisdiction” that makes the parolee a prisoner,
regardless whether the parolee has successfully challenged
any or all of the conditions of parole). Moreover, the
majority’s focus on the number of challenged parole
conditions is entirely arbitrary. Would Thornton have been
barred from bringing a § 1983 action if he had challenged
five parole conditions, instead of only two?

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Alternatively, the majority suggests that Thornton’s
§ 1983 action is permissible because Thornton’s “challenge
is quite narrow and is focused on the nature of specific
conditions of parole.” Am. maj. op at 19 n.9. But the
majority fails to explain what differences in the “nature of
specific conditions” are important, and how courts should
weigh the import of these differences. Here, for instance,
Thornton challenges the conditions allowing the CDCR to
monitor all of his movements by means of a GPS tracker, and
barring him from living in certain geographical areas. These
constraints on Thornton’s physical movements are akin to the
fact of actual confinement, Am. maj. op at 17, yet the
majority asserts that Thornton’s success on these claims
“would not imply the invalidity” of his sentence, Am. maj.
op. at 19.
District courts will have no idea what to make of the
majority’s Delphic guidance as they confront § 1983 suits
challenging various kinds and permutations of parole
conditions. Indeed, the majority’s ruling will require the sort
of case-by-case analysis that the Supreme Court recently
rejected in Skinner v. Switzer, where it advised courts not “to
muddle the clear line Heck and Dotson drew” between
challenges that could be brought under § 1983, and those that
could not. 131 S. Ct. 1289, 1298 n.12 (2011).
Finally, the majority’s holding is inconsistent with the
only other circuit to have considered this issue. See Williams
v. Wisconsin, 336 F.3d 576, 579–80 (7th Cir. 2003);
Drollinger, 552 F.2d at 1224–25. In Williams, the Seventh
Circuit held that a parolee could not bring a § 1983 action to
challenge a travel restriction imposed as a condition of his
parole. 336 F.3d at 579–80. According to the court, because
“the ‘conditions’ of parole are the confinement,” the

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parolee’s challenge to the travel restriction constituted a
collateral attack on his parole, and had to be brought in a
petition for habeas corpus. Id. at 579. In so holding, the
Seventh Circuit relied on its earlier opinion in Drollinger,
which held that a plaintiff in a § 1983 action could challenge
her probation conditions (which under state law were part of
her sentence) only by means of a habeas petition. 552 F.2d
at 1225.
The majority attempts to distinguish Drollinger because
the conditions in that case were imposed “as part of a court
judgment.” Am. maj. op. at 20; see also am. maj. op. at 21
n.12. But the Supreme Court has not indicated that it makes
any difference under Heck whether an agency, rather than a
court, establishes the parole conditions that are imposed as
part of a sentence under state law, and the majority does not
explain why this is significant. Moreover, Drollinger itself
did not rely on this factor or deem it relevant in its analysis.3
The Seventh Circuit’s reasoning is directly on point here, and
to be consistent with our sister circuit, we should apply the
California parole statutes at face value and hold that

3

Nor is there any merit to the majority’s statement that the Seventh
Circuit “extended Drollinger’s rule for probation conditions to the parole
context without explaining why that extension was justified,” Am. maj.
op. at 20 n.11. The majority ignores the obvious reason behind the
extension: the essence of both probation and parole is that, in exchange for
freedom from the physical confinement of prison, an offender must
comply with conditions restricting his liberty. Williams, 336 F.3d at 579
(“For parolees, . . . the ‘conditions’ of parole are the confinement.”);
Drollinger, 552 F.2d (explaining that a probationer was “in custody”
under Jones, 371 U.S. at 243, which addressed parole as “custody,”
because “we can discern no significant difference between the statutes of
parole and probation with regard to the question of custody”).

Case: 11-56146

02/18/2014

ID: 8980498

THORNTON V. BROWN

DktEntry: 64

Page: 33 of 33

33

Thornton’s challenges to the GPS requirement and residency
restriction are likewise cognizable only in habeas.
II
In sum, Thornton’s challenges to his parole conditions
would necessarily imply the partial invalidity of his sentence
because parole is a required part of a determinate sentence in
California. Therefore, his challenge cannot be brought under
§ 1983. I respectfully dissent from the majority’s conclusion
to the contrary, which conflicts with Supreme Court
precedent and sister circuit authority.