    17-465-cv
    Dyous v. Psychiatric Sec. Review Bd.
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 10th day of January, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             CHRISTOPHER F. DRONEY,
                             Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X

    Anthony Dyous,
             Plaintiff-Appellant,

                 -v.-                                          17-465

    Psychiatric Security Review Board, an
    independent agency of the State of
    Connecticut,
             Defendant-Appellee.

    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                         Robert E. Byron, Robert E.
                                           Byron, LLC, Hartford,
                                           Connecticut.




                                              1
FOR APPELLEE:              Jo Anne Sulik, Office of the
                           Chief State’s Attorney, Rocky
                           Hill, Connecticut.

     Appeal from a judgment of the United States District
Court for the District of Connecticut (Chatigny, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Anthony Dyous appeals from the judgment of the United
States District Court for the District of Connecticut
dismissing the case. 1 We assume the parties’ familiarity
with the underlying facts, the procedural history, and the
issues presented for review.

     Dyous was committed to a mental institution in
Connecticut on March 22, 1985, for a term not to exceed 25
years, having been declared insane after he hijacked a bus
in Hartford to spread the gospel of an impending nuclear
conflagration. The state moved to continue Dyous’
commitment beyond his original term, and the court granted
multiple extensions on the basis of Dyous’ clinical
condition. Dyous remains institutionalized. He challenges
his detention as unlawful and seeks a declaratory judgment
that his continued confinement by the Psychiatric Security
Review Board (“the Board”) violates his constitutional
rights. The district court granted the Board’s motion to
dismiss on the ground that Dyous could not contest his
confinement by way of an action for declaratory judgment.

     The single issue raised on appeal is whether Dyous can
pursue a declaratory judgment action contesting his
continued confinement as a violation of his constitutional
rights or whether he must seek relief via a writ of habeas
corpus.


1 While the district court did not specify whether its
dismissal was pursuant to Federal Rule of civil Procedure
12(b)(1) or (6), we construe the dismissal as without
prejudice to Dyous’ ability to subsequently file a habeas
petition under 28 U.S.C. § 2554.
                             2
     Whenever an individual attacks the “very fact or
duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus.” Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973). In Preiser, the
respondents alleged that deprivation of good conduct time
credits “was causing or would cause them to be in illegal
physical confinement.” Id. at 487. The Court held that
the allegation “fell squarely within th[e] traditional
scope of habeas corpus.” Id.

     Following Preiser, a number of circuits have directly
held that the Declaratory Judgment Act may not be used as a
substitute for a petition for a writ of habeas corpus.
See, e.g., Rooney v. Secretary of the Army, 405 F.3d 1029,
1031 (D.C. Cir. 2005); United States v. Guitierrez, 116
F.3d 412, 415 (9th Cir. 1997); see also Mills v. Poole,
2008 WL 141729, 06-cv-842A, at *4 (W.D.N.Y. Jan. 14, 2008)
(“Where, as here, an alternative remedy was expressly
created by statute to provide the relief sought, a
declaratory judgment should not be granted.”). This result
is also mandated by Wilkinson v. Dotson, where the Supreme
Court emphasized that habeas corpus is the only avenue
available to confined individuals who “seek to invalidate
the duration of their confinement—either directly through
an injunction compelling speedier release or indirectly
through a judicial determination that necessarily implies
the unlawfulness of the State’s custody.” 544 U.S. 74, 81
(2005).

     Rather, a declaratory judgment action may only lie
where the plaintiff seeks monetary damages or other relief
that would not directly impact his or her sentence or
duration of commitment. See Wolff v. McDonnell, 418 U.S.
539, 554-55 (1974) (holding that declaratory judgment as a
predicate to a damages award would not be barred, but that
a civil rights claim that would affect the duration of
incarceration is foreclosed by Preiser); see also Burnell
v. Whidden, 3:05CV825(MRK), 2005 WL 2739085, at *3-4 (D.
Conn. Oct. 19, 2005).

     Because each of Dyous’ constitutional claims would
impact his confinement if adjudicated in his favor on the
                             3
merits, a writ of habeas corpus is his only potential
avenue of relief. The prayer for relief in Dyous’
complaint seeks a declaration that “the continuing
confinement of the plaintiff by the defendant violates the
rights of the plaintiff guaranteed” by the Constitution.
J. App’x at 15. His causes of action under the due process
and equal protection clauses can only be construed as
contentions that his detention in the mental facility is
“contrary to the Constitution or fundamental law.”
Preiser, 411 U.S. at 485; cf. Griffin v. Alexander, 9:09-
CV-1334(PJM/DEP), 2011 WL 4402119, at *8, *13 (N.D.N.Y.
Aug. 25, 2011)(determining that civil rights claims
requesting order directing defendant’s release to parole
supervision not appropriate for resolution by declaratory
judgment but must be brought by habeas petition), report
and recommendation adopted by 2011 WL 4343199 (N.D.N.Y.
Sep. 14, 2011); Curro v. Myers, CV-86-1304, 1987 WL 12032,
at *3 (E.D.N.Y. May 5, 1987)(“[I]nsofar as plaintiff seeks
a declaration that his conviction was obtained without due
process of law, he challenges the fact of his
confinement.”).

     The distinctions Dyous draws between “equity” and “law”
or “writ” and “judgment” are of no moment. Dyous is not
pursuing monetary damages; he seeks a judicial ruling that
his confinement is contrary to law. No matter how narrowly
Dyous now asks us to construe his claims, he is directly
and unambiguously challenging his confinement. See Judge,
2009 WL 928134, at *8 (declaratory judgment relief that
would “necessarily invalidate Plaintiff’s current
confinement” barred). This rule is not just a formality.
Congress “clearly required exhaustion of adequate state
remedies as a condition precedent to the invocation of
federal judicial relief” for a confined individual and it
would “wholly frustrate explicit congressional intent to
hold that [Dyous] could evade this requirement by the
simple expedient of putting a different label on [his]
pleadings.” Preiser, 411 U.S. at 489-490.




                             4
     For the foregoing reasons, and finding no merit in
Dyous’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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