                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 WILLIAM CECIL THORNTON ,                      No. 11-56146
                Plaintiff-Appellant,
                                                 D.C. No.
                    v.                        3:10-cv-01583-
                                                   RBB
 EDMUND G. BROWN , JR.,* Governor
 of California; MATTHEW CATE ,
 Secretary of Corrections; LEWIS,                OPINION
 John Doe, Parole Unit Supervisor;
 MARK JOSEPH , Parole Agent;
 CHRISTINE CAVALIN , Parole Agent;
 JOHN DOE #1, Parole Agent,
                Defendants-Appellees.


         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




     *
       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).
2                      THORNTON V . BROWN

         Before: Myron H. Bright,** Susan P. Graber,
             and Sandra S. Ikuta, Circuit Judges.

                     Opinion by Judge Graber;
                      Dissent by Judge Ikuta


                           SUMMARY***


                             Civil Rights

    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 district court, citing Preiser v. Rodriguez, 411 U.S.
475, 489–90 (1973), and Heck v. Humphrey, 512 U.S. 477,
487 (1994), concluded that habeas corpus provided the
exclusive federal remedy for plaintiff’s claims. The panel
held that an action which challenges the conditions of parole
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. The panel held


    **
    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.
                   THORNTON V . BROWN                        3

that because in this case plaintiff challenged just two parole
conditions, which were imposed 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 did not bar him 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. Judge Ikuta stated that because the
Supreme Court has held such challenges must be brought in
a habeas petition, not under § 1983, she would affirm the
district court.


                         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.
4                   THORNTON V . BROWN

                          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), and Williams v.
Wisconsin, 336 F.3d 576 (7th Cir. 2003). 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 Petitioner’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
                    THORNTON V . BROWN                        5

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”).

    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
6                     THORNTON V . BROWN

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
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

   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).
                   THORNTON V . BROWN                        7

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
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
8                      THORNTON V . BROWN

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
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


    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.
                   THORNTON V . BROWN                        9

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, 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. Atty’s Office, 423 F.3d 1050, 1053 (9th Cir. 2005)
(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
10                     THORNTON V . BROWN

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
habeas must be brought in habeas”).4 Thus, the fact that a


 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).

 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).
                       THORNTON V . BROWN                              11

§ 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 have we nor has the Supreme
Court previously addressed whether, or in what
circumstances, Heck’s implicit exception to § 1983 applies to
such a claim. Here, we hold that Plaintiff’s claims, which
challenge just 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

  5
    W e 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.
12                     THORNTON V . BROWN

“necessarily imply” the invalidity of his state-court
conviction or sentence.

    The only federal court of appeals to have decided how
Heck applies to 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.” Id. at 1225. The same is true of parole. See
Williams, 336 F.3d at 579 (“For parolees, . . . the ‘conditions’
of parole are the confinement.”). But that does not mean that
no distinction exists in the parole context between conditions
of confinement and the fact of confinement. Not all parole
conditions are essential to the “fact” of a parolee’s
confinement; and a parolee’s challenge to parole terms that
are more analogous to “conditions” in the prison context will
not speed the parolee’s release from parole.6

    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,


  6
    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. W e 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.
                       THORNTON V . BROWN                               13

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 the two conditions does not threaten his
“confinement” as a parolee. See Jones, 371 U.S. at 242–43
(explaining that the fact of a parolee’s custody consists of the
cumulative effect of its conditions in “significantly
confin[ing] and restrain[ing] his freedom”). 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
§ 1983.7

    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


  7
    W e 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
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.
14                    THORNTON V . BROWN

determining that “§ 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 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
         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).8




 8
   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 conditions that, under state law, are part of the sentencing
court’s judgment. Thus, Drollinger is consistent with Heck.
                       THORNTON V . BROWN                             15

    This case is distinguishable from Drollinger, though,
because the 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 (a prison term that he has
already served), or on 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.9 And because a judgment
in Plaintiff’s favor 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


  9
     The Seventh Circuit’s statement in Williams that Preiser probably
barred a § 1983 challenge to numerous parole conditions is
distinguishable. In Williams, the court noted that, because the plaintiff
was released on parole before serving her full prison sentence, her
challenge amounted to “a collateral attack while on parole” to her
“unexpired sentences.” 336 F.3d at 579. Here, by contrast, Plaintiff has
completed his prison term, and he does not challenge his parole itself.
16                      THORNTON V . BROWN

judgment.10 We need not and do 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 § 1983.11 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


  10
     The dissent interprets California law, as we do, to delegate to the
Department the discretionary authority to choose and impose parole
conditions. Dissent at 21. See also Kevin R. v. Superior Court, 120 Cal.
Rptr. 3d 549, 554 (Ct. App. 2010) (“The Board has expansive authority to
impose any parole conditions deemed proper.”). Unlike us, though, the
dissent concludes that, in challenging those discretionarily selected parole
conditions, Plaintiff “is challenging a statutorily-mandated component of
his sentence.” Dissent at 22. W e do not agree that such a conclusion
follows from California’s delegation to the Department of discretionary
authority to determine parole conditions.

  11
     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).
                       THORNTON V . BROWN                             17

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
custody).12 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,” contrary to Skinner v.
Switzer, 131 S. Ct. 1289, 1298 n.12 (2011). 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


 12
    W e 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).
18                  THORNTON V . BROWN

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
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 just 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.
                   THORNTON V . BROWN                      19

                              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
sentence for the robbery offense and a one-year consecutive
term for a prior offense. See Cal. Penal Code §§ 211, 213
(robbery), 667.5(b) (consecutive term). As required by
California law, Cal. Penal Code § 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 First,
Eighth and Fourteenth Amendment rights, 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
20                 THORNTON V . BROWN

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
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, 481 (1994) and Edwards v. Balisok, 520 U.S. 641, 648
(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. 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.
                        THORNTON V . BROWN                         21

                                     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.

    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 (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. Cal. Penal Code
§ 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.” Cal. Penal Code § 3000(b)(7);1 see


 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
22                     THORNTON V . BROWN

also Kevin R. v. Super. Ct., 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).

    Because Thornton was sentenced under § 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 statutorily-
mandated 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 Dotson,
544 U.S. at 81–83.

                                   C

    Accordingly, the majority errs in concluding that the
discretionary conditions of the CDCR are not part of
Thornton’s sentence. Maj. op. at 15. The root of the
majority’s error is its ill-founded attempt to distinguish
between the fact of parole and its conditions. This is not a
distinction that California courts have recognized. Under
California law, a parolee in California is confined and
“constructively a prisoner” because of the conditions of


         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.”
                    THORNTON V . BROWN                       23

parole. People v. Lewis, 74 Cal. App. 4th 662, 670 (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). 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 v. Brewer,
408 U.S. 471, 477, 480 (1972)) (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 fact of parole is part of a
parolee’s sentence but parole conditions are not. See id.

    Moreover, the majority’s attempted distinction is
unworkable. The majority holds that there is a difference
between conditions that are essential to the “fact” of a
parolee’s confinement (which cannot be challenged under
§ 1983) and other conditions that are more analogous to
“conditions” of confinement (which can be). Maj. op. at
12–13. The majority acknowledges that “the line between
conditions of confinement and the fact thereof may be
‘blurred’ in some cases,” maj. op. at 13, but in doing so
profoundly understates the difficulties of discerning which
parole conditions would fall on which side of the line, and
why. 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 clearly akin to the “fact” of
confinement, yet the majority asserts that Thornton’s success
on these claims “would not imply the invalidity” of his
24                 THORNTON V . BROWN

sentence. Maj. op. at 13. The majority hints its
determination is based “on the nature of specific conditions
of parole,” maj. op. at 13 n.7, but does not explain why the
nature of the specific conditions in Thornton’s case compels
its conclusion. To make matters worse, the majority also
suggests that Thornton’s challenge to two conditions can
proceed under § 1983 because “nearly all of his parole
conditions will remain in effect” even if Thornton is
successful. Maj. op. at 12; see also maj. op. at 11
(emphasizing that Thornton challenges “just two parole
conditions”); maj. op. at 18 (same). The majority’s emphasis
on the nature and 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? If the “nature of specific
conditions of parole,” maj. op at 13 n.7, is the key issue, how
do we discern the nature of each condition, what differences
in “nature” are important, and how do we weigh the import of
these differences? The majority gives no answer.

    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, 578–79 (7th Cir. 2003);
Drollinger v. Milligan, 552 F.2d 1220 (7th Cir. 1977). In
                       THORNTON V . BROWN                             25

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 578–79. According
to the court, because “the ‘conditions’ of parole are the
confinement,” the 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. Drollinger, 552 F.2d at 1225.2 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
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.


  2
     The majority asserts that Drollinger is distinguishable because the
conditions in that case were imposed “as part of a court judgment,” maj.
op. at 15. But the Supreme Court has not indicated that it would make 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.
