                                                                    [PUBLISH]
                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         ______________________________        FILED
                                                     U.S. COURT OF APPEALS
                                  No. 98-6236          ELEVENTH CIRCUIT
                       _______________________________     11/17/99
                           D.C. Docket No. 98-D-357-N   THOMAS K. KAHN
                                                               CLERK
JEFFERY POWELL KIRBY,

                                                             Plaintiff-Appellant,
                                          versus
FOB JAMES, 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.

                         ______________________________

                                   No. 98-6672
                         ______________________________
                            D.C. Docket No. 98-A-153-N

ROBERT EDMOND,
                                                             Plaintiff-Appellant,
                                          versus

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.
                       -------------------------------------------
               Appeals from the United States District Court for the
                            Middle District of Alabama
                        ------------------------------------------
                                (November 17, 1999)

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 determined that Edmond’s challenge

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


                                          -2-
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.



      1
       Kirby appeals only the district court’s dismissal of his ex post facto and double
jeopardy challenges.
                                          -3-
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 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.




                                           -4-
      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


                                          -5-
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.

      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




      2
       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.
                                          -6-
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).

                                III.        DISCUSSION

                                       A.     KIRBY




                                              -7-
      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


      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.
                                          -8-
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.

      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. 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


                                          -9-
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


                                           -10-
      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 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


                                         -11-
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 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


                                          -12-
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.


                                         -13-
      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 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.


                                          -14-
Id. quoting Ingraham v. Wright, 430 U.S. 651 (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




                                         -15-
this case to 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.




                                          -16-
