XVI. Humphrey, Notice of Claim, and Ripeness)

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XVI. EXHAUSTION OF STATE REMEDIES (INCLUDING HECK V. HUMPHREY, NOTICE OF CLAIM, AND RIPENESS)

A. State Judicial Remedies

State judicial remedies generally need not be exhausted in order to bring a § 1983 action. In its landmark decision in Monroe v. Pape,³⁵³ the Supreme Court stated: "The federal [§ 1983] remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." In fact, a litigant who pursues a state judicial remedy before commencing a § 1983 action in federal court will likely be faced with a preclusion defense. (See Part XVII, infra.) Despite the generally applicable rule that a § 1983 plaintiff need not exhaust state judicial remedies, the availability of a state judicial remedy may be important for (1) certain procedural due process claims (2) prisoners seeking either immediate or speedier release from confinement; , and (3) the § 1983 takings claimant who must satisfy Supreme Court ripeness requirements. We turn to these issues below.

1. Procedural Due Process: The Parratt-Hudson Doctrine

Under the Parratt-Hudson³⁵⁴ doctrine, when a deprivation of liberty or property results from "random and unauthorized" official conduct, the availability of an adequate post-deprivation judicial remedy satisfies procedural due process. The Parratt-Hudson doctrine does not apply when the deprivation results from enforcement of an established state procedure³⁵⁵ or from actions by officials with authority to both cause deprivations and provide pre-deprivation process.³⁵⁶Parratt-Hudson is not an exhaustion doctrine: when the Parratt-Hudson doctrine is applicable, it results in rejection of the procedural due process claim on the merits, not for failure to exhaust. A post-deprivation remedy may be adequate under Parratt-Hudson even if it does not afford all of the relief available under § 1983, such as an award of attorneys' fees.³⁵⁷

2. The Preiser-Heck Doctrine

In Preiser v. Rodriguez,³⁵⁸ the Supreme Court held that a prisoner's constitutional claim that challenges the fact or duration of her confinement and seeks immediate or speedier release must be brought under federal habeas corpus, following exhaustion of state remedies, even though the claim may come within the literal terms of § 1983. In these circumstances, federal habeas corpus is the exclusive remedy. The Court in Preiser reasoned that the more specific federal habeas remedy should prevail over the more general § 1983 remedy and that prisoners should not be allowed to evade the federal habeas exhaustion requirement by filing the claim under § 1983.

The decision in Preiser, however, does not preclude prisoners from utilizing § 1983 to either challenge the conditions of their confinement or to enforce procedural due process protections. In Wilkinson v. Dotson,³⁵⁹ the Supreme Court held that the prisoners' challenge to parole release procedures could be asserted under § 1983 because the prisoners sought only enhanced process. They did not challenge either the fact or length of their confinement and did not seek immediate or speedier release from confinement. If successful, the plaintiffs at most could obtain new parole release hearings. Relying on Wilkinson, the Supreme Court in Skinner v. Switzer³⁶⁰ held that a convicted prisoner seeking access to evidence for the purpose of post-conviction DNA testing may assert a procedural due process claim under § 1983. The Court reasoned that the prisoner's procedural due process claim will not necessarily lead to immediate or speedier release because "[s]uccess in the suit gains the prisoner only access to DNA evidence, which may prove exculpatory, inculpatory, or inconclusive."³⁶¹

In Nelson v. Campbell,³⁶² the Supreme Court held that a death-row inmate may assert a § 1983 challenge to the constitutionality of a medical procedure that would be employed by the state as a precursor to lethal injection.³⁶³ The Court viewed the claim as a condition of confinement medical-treatment claim but did not decide whether a challenge to the method of execution itself (e.g., lethal injection) may be asserted under § 1983.

Under the doctrine of Heck v. Humphrey,³⁶⁴ a § 1983 plaintiff who seeks damages on a § 1983 claim that necessarily implicates the constitutionality of the claimant's conviction or sentence must show that the conviction or sentence has been overturned, either judicially or by executive order. Strictly speaking, Heck is not an exhaustion doctrine. In fact, the Heck doctrine is more onerous than an exhaustion requirement because, unless and until the conviction or sentence is overturned, the § 1983 claim is not cognizable. Lower courts often experience difficulties determining whether a § 1983 claim "necessarily implicates" the validity of a conviction.³⁶⁵ The Heck doctrine has implications for the date of accrual for the purpose of the statute of limitations because a § 1983 claim that necessarily implicates the validity of a conviction or sentence is not cognizable and thus does not accrue until the conviction has been overturned.

In Edwards v. Balisok,³⁶⁶ the Supreme Court held that the doctrine of Heck v. Humphrey applies to...