Clark v. Prichard

ROBERT MADDEN HILL, Circuit Judge, concurring:

I agree with the majority that Barbara Clark is not entitled to relief from the conditions of her probation. I also agree with the majority’s conclusion that her children should not be granted any relief. I write separately, however, because I am not convinced that Clark can challenge her probation conditions through a section 1983 civil rights action.

First, Clark’s action seeking suspension of a condition of her probation should be *997 characterized as a habeas corpus action and, accordingly, dismissed for her failure to exhaust her state remedies. The ,majority by-passes the crucial threshold issue of whether Clark’s action is best considered as a section 1983 action or a habeas corpus proceeding. 1 By failing to confront the characterization issue, the majority implicitly assumes that a probationer may challenge the condition(s) of her probation by way of a section 1983 action. Since the majority does not explain if or why Clark’s challenge is particularly unique, I can discern no reason why the next probationer should not also be entitled to same assumption. Thus, the majority’s opinion is a quiet yet open invitation to state probationers to use a federal court as the initial forum to challenge and complain about the conditions of their probations. I cannot join such a broad and unexplained invitation.

In her complaint Clark requested the district court enjoin or suspend the condition of her probation which limits her ability to apply for and obtain public welfare assistance. Pursuant to Miss. Code Ann. § 47-7-35 (Supp.1986), 2 the state court judge had required that Clark use. “maximum effort” to find and maintain employment so as, to support herself and her seven children. As a supplemental condition the judge explained to Clark that she could not apply for or obtain welfare benefits unless she first requested permission to do so from the court. Clark challenges this condition as being violative of her constitutional rights. As for me, the initial issue that must be addressed is what is the nature of the'.challenge Clark is making in her attempt to be relieved of her probation condition.

I begin by recognizing that a person on-probation and subject to conditions of probation is “in custody” for purposes of the federal habeas corpus statute, 28 U.S.C. § 2254 . See Jones v. Cunningham, 371 U.S. 236, 243 , 83 S.Ct. 373, 377 , 9 L.Ed.2d 285 (1963); Hensley v. Municipal Court, 411 U.S. 345, 351 , 93 S.Ct. 1571, 1574 , 36 L.Ed.2d 294 (1973); Caldwell v. Line, 679 F.2d 494, 497 (5th Cir.1982). While a probationer is not physically imprisoned, a condition of probation significantly restricts a probationer’s otherwise apparent freedom. The probationer remains subject to government control throughout the term of probation and may be actually imprisoned if the conditions of probation are violated. Clark *998 as a current probationer is therefore in custody for habeas corpus purposes.

In light of Clark’s custodial status, I turn to the issue of the proper method by which she may challenge a condition of her probation. This question is answered by deciding what Clark is actually challenging.

If a person in custody is challenging the fact, length, or terms of her sentence then habeas corpus is the appropriate avenue of attack. See Preiser v. Rodriguez, 411 U.S. 475, 499 , 93 S.Ct. 1827, 1841 , 36 L.Ed.2d 439 (1973); Wolff v. McDonnell, 418 U.S. 539, 554 , 94 S.Ct. 2963, 2973 , 41 L.Ed.2d 935 (1974); Hernandez v. Spencer, 780 F.2d 504, 505 (5th Cir.1986); Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir.1984); Jackson v. Torres, 720 F.2d 877, 879 (5th Cir.1983). If however a person in custody is challenging the conditions, i.e. environment, of her confinement as unconstitutional then a section 1983 action may be used to carry out that attack. See Preiser, 411 U.S. at 499 , 93 S.Ct. at 1841 ; Alexander v. Ware, 714 F.2d 416, 418-19 (5th Cir.1983). 3

These two rules developed in the context of prisoner rights litigation. The rules rest upon the distinction, extant in the prison context, between the fact or terms of a sentence and the conditions of life experienced while serving that sentence. As an example, to allow a prisoner to challenge through a section 1983 action the overcrowding of prison cells or prison disciplinary procedures does not undermine the fact that the prisoner is serving a ten year sentence. Thus, in the prison context a proper section 1983 action does not allow the prisoner to circumvent the habeas corpus procedures and challenge the fact, length, or terms of his sentence.

The same, however, cannot be said outside the prison context because the distinction between fact of confinement and conditions of confinement is lost. This case is illustrative of the fading distinction. See also Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir.1977).

Following her plea of guilty, Clark was subject to imprisonment or, in the court’s discretion, probation. See Cobb v. State, 437 So.2d 1218, 1221 (Miss.1983) (“Instead of being a matter of right, it is by grace that probation is granted a defendant, and within his sound judicial discretion the trial judge may fix reasonable conditions of parole and probation.”); see also Miss.Code Ann. § 47-7-33 (Supp.1986). 4 The court’s selection of probation and the conditions imposed thereunder was her sentence. Unlike the prisoner who is sent to jail for a term of ten years and who subsequently complains about the prison environment, Clark is complaining about a specific term of her sentence and not an independent factor which develops during “incarceration.” By challenging one of her probation conditions Clark is in essence attempting to *999 alter a term of her sentence. I believe such an attack can be undertaken only through the habeas corpus route with its attendant exhaustion requirements.

An earlier case involving a probationer’s challenge to her probation conditions reached a similar conclusion. In Drollinger v. Milligan, supra, a probationer challenged the conditions of her probation one of which included a requirement that she maintain employment and financially support her child. In also concluding that the challenge was a habeas corpus action, the Seventh Circuit stated:

However, the nature of custody while in prison differs significantly from that experienced while on probation. For [the probationer] the terms of her custody encompass not only the length of time she must spend on probation, but also the specific activities of her daily routine. Because probation is by its nature less confining than incarceration, the distinction between the fact of confinement and the conditions thereof is necessarily blurred. The elimination or substitution, for example, of one of the conditions of [the] probation would free her substantially from her confinement; figuratively speaking, one of the “bars” would be removed from her cell. The release from such custody, even if only partial, is the traditional function of the writ of habeas corpus.

552 F.2d at 1225 (citations omitted). The court concluded:

Habeas corpus, as we have already noted, is the appropriate remedy for a defendant seeking release from custody or expansion of the parameters of his confinement. [The probationer’s] constitutional challenge to the conditions and terms of probation is an attempt to obtain such relief, and therefore, must be brought as a petition for habeas corpus.

Id.

As the Seventh Circuit has held, I would also hold that a probationer’s challenge to a condition of probation must be sought in habeas corpus proceedings. Accord, Drollinger, 552 F.2d at 1225 ; Hanson v. Heckel, 791 F.2d 93, 96 (7th Cir.1986). This bright line rule recognizes the special nature of a probationary sentence and prevents the circumvention of the habeas corpus statute.

As for the action by Clark on behalf of her children I agree that they are not entitled any relief. They lack standing to contest the conditions of their mother’s probation. See Drollinger, 552 F.2d at 1227 n. 5.

. The majority acknowledges the existence of the characterization issue, see supra n. 8, but declines to address the matter because it limits its inquiry to the merits of Clark’s allegations. Such reasoning seems self-fulfilling, i.e., the issue is not addressed because the majority chooses not to address it.

The characterization issue is the threshold matter in this appeal for its resolution decides whether the district court had subject matter jurisdiction to entertain Clark’s action. If Clark may challenge her probation conditions through a section 1983 action then the district court certainly would have subject matter jurisdiction to consider this case, including her request for a temporary injunction. If however Clark can attack the conditions of her probation only through a habeas corpus petition, the district court was without authority to take any action in this case because Clark has failed to exhaust her state remedies, the prerequisite to federal court subject matter jurisdiction in habeas matters. Thus, regardless of whether Clark is or is not entitled to temporary relief, we must first decide whether she can or cannot bring her action in federal court at this time.

. Section 47-7-35 states:

The courts referred to in Section 47-7-33 shall determine the terms and conditions of probation and may, at any time during the period of probation, alter or modify the conditions and may include among them the following or any other:

(a) Commit no offense against the laws of this or any other state of the United States, or of the United States;

(b) Avoid injurious or vicious habits;

(c) Avoid persons or places of disreputable or harmful character;

(d) Report to the probation and parole officer as directed;

(e) Permit the probation and parole officer to visit him at home or elsewhere;

(f) Work faithfully at suitable employment so far as possible;

(g) Remain within a specified area;

(h) Pay his fine in one (1) or several sums;

(i) Support his dependents;

(j) Submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.

. The Supreme Court has also indicated that a person in custody may challenge the conditions of his confinement through a habeas corpus proceedings. See Preiser, 411 U.S. at 499 n. 14, 93 S.Ct. at 1841 n. 14; accord Alexander, 714 F.2d at 418-19 .

. Section 47-7-33 states:

When it appears to the satisfaction of any circuit court or county court in the state of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the department of corrections.

When an circuit court or county court places a person on probation in accordance with the provisions of this section and that person is ordered to make any payments to his family, if any member of his family whom he is ordered to support is receiving public assistance through the state department of public welfare, the court shall order him to make such payments to the county welfare officer of the county rendering public assistance to his family, for the sole use and benefit of said family.