Darrel Ray Leonard and Johnny A. Casselbury, Appellants, v. L.t. Hammond, Jr. and William M. Neely, in Their Capacitiesas District Court Judges of Randolph County, Appellees.north Carolina Civil Liberties Union, Amicus Curiae, 804 F.2d 838 (4th Cir. 1986)

Plaintiffs/appellants Leonard and Casselbury brought this action after each had been imprisoned under separate civil contempt orders for failure to pay child support. Plaintiffs claim that their due process rights were violated when defendants, Neely and Hammond, state trial court judges presiding over the contempt hearings, failed to appoint counsel for plaintiffs, who were indigent at the time. The district court dismissed the action on Younger abstention grounds. Finding that plaintiffs' claim, cognizable only in a habeas corpus application, has not been presented to the state courts pursuant to 28 U.S.C. § 2254, we reverse and remand the action to the district court with instructions that the court dismiss the action.

Leonard and Casselbury were held, in separate state court proceedings, to be in civil contempt for failure to pay child support in the sums of $2,898.00 and $2,894.17, respectively. At the hearings, the presiding state judges, Neely and Hammond, imposed the incarceration orders without: (1) inquiring as to plaintiffs' indigency status; (2) addressing whether counsel should be appointed; (3) notifying plaintiffs of their right to counsel; or (4) appointing counsel to represent plaintiffs. Both men were imprisoned for indefinite periods until child support payments were made.

On April 4, 1984, plaintiffs, while incarcerated under the contempt orders, filed this action, styled "Complaint and Habeas Corpus Petitions,"¹  alleging that their constitutional right to due process had been violated. They sought release from custody, preliminary and permanent injunctions against the imprisonment of plaintiffs in any nonsupport proceeding where counsel were not provided to the indigent plaintiffs, and a declaratory judgment that no indigent person be incarcerated in a nonsupport civil contempt hearing without appointment of counsel. Plaintiffs asserted that the requested relief was authorized by 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201, 2202. Shortly thereafter, plaintiff Casselbury was released from jail, and on April 12, 1984, an amended complaint was filed so stating. Also on April 12, a motion for temporary restraining order (TRO) and preliminary injunction was filed seeking Leonard's release from jail and enjoining any future contempt hearings for plaintiffs without appointed counsel.

On April 18, the lower court entered an order finding that the August 12 TRO and preliminary injunction motion sounded in habeas corpus, and thus, Leonard must exhaust his state court remedies pursuant to 28 U.S.C. § 2254(b). On April 27, Leonard withdrew the TRO and preliminary injunction motion, since he already had been released from jail.

Plaintiffs moved for summary judgment and defendants filed motions to dismiss and for summary judgment. Adopting the findings and recommendations of the magistrate, the district court granted defendants' motion to dismiss. Viewing plaintiffs' claim as one actionable under 42 U.S.C. § 1983, the court reasoned that it should abstain from deciding the constitutional claim under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). This appeal followed.II.

At the outset, we find that plaintiffs' claim should not have been viewed as a Sec. 1983 action. Their claim is cognizable only in habeas corpus. When plaintiffs filed this action, both were in prison. Their complaint, entitled "Complaint and Habeas Corpus Petitions," challenged the constitutionality of their confinement and sought their release. It matters not that habeas corpus petitions were never filed, and plaintiffs' pleadings sought relief pursuant to other authorities. If a state prisoner, in his complaint, is attacking the validity of his confinement and seeking release, habeas corpus is the exclusive remedy. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Preiser v. Rodriquez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). The Preiser Court specifically stated that a prisoner "cannot bring a Sec. 1983 action, even though the literal terms of Sec. 1983 might seem to cover such a challenge." Id. at 489, 93 S. Ct. at 1836.² 

Relying on Preiser, this court has consistently precluded plaintiffs from challenging their imprisonment guised as other actions. See, e.g., Alexander v. Johnson, 742 F.2d 117 (4th Cir. 1984) (although complaint against imprisonment is cast in Sec. 1983 terms, claim is remedial only in habeas corpus); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983) (case to be considered in habeas when release sought); Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981) (although prisoner's complaint was confined to Sec. 1983 claim and request for declaratory and injunctive relief, pleading was to be construed as one in habeas), cert. denied, 455 U.S. 911, 102 S. Ct. 1261, 71 L. Ed. 2d 451 (1982). The significance in limiting plaintiffs' remedy solely to a writ of habeas corpus is the "concomitant requirement of exhausting state remedies."³  Wolff, 418 U.S. at 554, 94 S. Ct. at 2973. This total exhaustion rule is rigorously enforced so that state courts are given the first opportunity to review claims of constitutional error. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379 (1982).

Plaintiffs herein failed to exhaust their state remedies before seeking redress in federal court. They could have presented their claim and sought relief in state court pursuant to N.C.Gen.Stat. Sec. 5A-22(b): N.C.Gen.Stat. Sec. 1A-1, Rule 60(b) of the N.C.Rules of Civil Procedure; or Rules 21 and 23 of the N.C.Rules of Appellate Procedure (writs of certiorari and supersedeas).

Plaintiffs contend that it would be futile for them to raise the constitutional question in state court since the North Carolina Supreme Court has already ruled on the issue. In Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980), the court refused to recognize an automatic right to counsel for indigents in nonsupport civil contempt proceedings, reasoning that such cases generally do not involve numerous or complex issues.

Since the nature of nonsupport civil contempt cases usually is not complex, due process does not require that counsel be automatically appointed for indigents in such cases; rather, the minimum requirements of due process are satisfied by evaluating the necessity of counsel on a case-by-case basis....

Id. at 94, 265 S.E.2d at 143 (citing Gagnon v. Scarpelli, 411 U.S. 778, 779, 93 S. Ct. 1756, 1758, 36 L. Ed. 2d 656 (1973), for the proposition that whether due process requires an automatic or case-by-case approach to appointment of counsel depends on the type of proceedings under consideration).

We reject plaintiffs' contention that based on Jolly, it would be futile to require them to seek remedy in state court. First, applying the Jolly case-by-case approach to the instant facts, a state court may find plaintiffs entitled to appointment of counsel. Second, we are uncertain that the North Carolina Supreme Court would follow Jolly if asked by plaintiffs to recognize an automatic constitutional right to appointed counsel under the instant facts. Subsequent to the Jolly decision, the United States Supreme Court revisited the question of litigant's right to appointment of counsel. See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Although the Court applied a case-by-case approach to the Lassiter facts (parental termination proceedings), the Court recognized that a presumption that an indigent has a right to appointed counsel arises when, if he loses, he may be deprived of his physical liberty. Arguably, such presumption is present in a North Carolina nonsupport civil contempt case. Accordingly, the North Carolina Supreme Court, if requested, may modify or reverse Jolly in order to comport with Lassiter.⁴ 

We disagree with plaintiffs' position that the state's high courts have been given the chance and refused to alter the Jolly decision. Although the Court of Appeals has upheld Jolly in cases decided subsequent to Lassiter, see, e.g., Daugherty v. Daugherty, 62 N.C.App. 318, 302 S.E.2d 664 (1983); Hodges v. Hodges, 64 N.C.App. 550, 307 S.E.2d 575 (1983), the court had no choice. The North Carolina Court of Appeals is without authority to reverse or modify precedent of the North Carolina Supreme Court. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). In addition, since Lassiter the North Carolina Supreme Court has not addressed the right to appointed counsel in a nonsupport civil contempt case. The court did consider the issue in a civil paternity proceeding. See Wake County, ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983). Although the court applied the Jolly case-by-case approach to the Townes facts, the risk of physical confinement was not involved therein. Indeed, the court, recognizing that due process presumptively requires appointed counsel for indigents whose physical confinement is a likely result, relied on Lassiter to conclude that the instant paternity proceeding lacked a sufficient threat to personal liberty, and thus a case-by-case determination was appropriate.

Our decision in the case at hand applies only the settled principles of exhaustion of state remedies. We express no view on how the North Carolina courts should resolve the underlying constitutional question.III.

Next we must address what effect, if any, plaintiffs' releases from jail have on this habeas corpus action. The releases raise two possible issues: federal jurisdiction and mootness.

The federal habeas corpus statute requires that plaintiffs must be "in custody" when the application for habeas is filed. 28 U.S.C. § 2254; see also Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). The facts herein show that both plaintiffs were in jail when the original complaint was filed. Thus, federal jurisdiction was established. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction Sec. 4262, at 609 (1978) (hereinafter referred to as Federal Practice and Procedure: Jurisdiction) . Plaintiffs' subsequent releases have no effect on that jurisdiction. " [O]nce the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application." Carafas, 391 U.S. at 238, 88 S. Ct. at 1559 (quoted in Kemplen v. Maryland, 428 F.2d 169, 171 (4th Cir. 1970)).

The question of mootness is separate and distinct from the jurisdictional issue. Establishing jurisdiction is a matter of satisfying the "in custody" statutory requirement. "In general a case becomes moot 'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1208, 71 L. Ed. 2d 353 (1982) (quoting United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980)). Two exceptions to the mootness doctrine have evolved: (1) "collateral consequences"; and (2) "capable of repetition, yet evading review." Carafas, 391 U.S. at 237, 88 S. Ct. at 1559; Murphy, 455 U.S. at 482, 102 S. Ct. at 1183.

The "collateral consequences" exception was enunciated in Carafas, 391 U.S. 234, 88 S. Ct. 1556. The Court held that where a conviction results in collateral consequences sufficient to create " 'a substantial stake in the ... conviction which survives the satisfaction of the sentence,' " the habeas claim is not moot. Id. at 237, 88 S. Ct. at 1559 (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S. Ct. 224, 230, 91 L. Ed. 196 (1946)). This court has applied the exception on several occasions. See, e.g., Broughton, 717 F.2d at 148-149, Kemplen, 428 F.2d at 171.

The "capable of repetition, yet evading review" exception was first enunciated in Southern Pacific Terminal v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911). This doctrine has been applied to numerous factual situations, see Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975), including habeas corpus claims. See Broughton, 717 F.2d at 149; Rastelli v. Warden, Metropolitan Correctional Center, 782 F.2d 17 (2d Cir. 1986); Tyars v. Finner, 709 F.2d 1274 (9th Cir. 1983). Two elements are required to employ this exception:

(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.

Weinstein, 423 U.S. at 149, 96 S. Ct. at 348.

Applying the law on mootness to the facts of this case, it is clear that the "capable of repetition, yet evading review" exception applies. Although free now⁵ , plaintiffs have the substantial risk of again being held in civil contempt and incarcerated without appointed counsel, if they fail to make child support payments. This probability and reasonable expectation that the controversy will recur involving plaintiffs, meet one of the two elements necessary to apply the exception. See Murphy, 455 U.S. at 482, 102 S. Ct. at 1183. The other element is also met by the facts presented herein. The controversy involved is "short run." Because civil contemnors generally remain in jail for brief time periods, the challenged actions "do not last long enough for complete judicial review of the controversies they engender." Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 126, 94 S. Ct. 1694, 1700, 40 L. Ed. 2d 1 (1974). Thus, the habeas claim is not moot, as it presents a controversy "capable of repetition, yet evading review."⁶  Accordingly, the issue herein is still a "live" one, with plaintiffs retaining interests in the outcome.

In sum, we find that the core of plaintiffs' claim, though cast in Sec. 1983 terms, is cognizable only in a habeas action. Notwithstanding plaintiffs' releases from custody subsequent to filing their claim, federal jurisdiction still exists and the controversy is not moot. Plaintiffs have failed to exhaust their state remedies pursuant to 28 U.S.C. § 2254(b). Accordingly, plaintiffs must first present their claims to the state courts before seeking federal review. See Alexander v. Johnson, 742 F.2d 117, 126 (4th Cir. 1984).

Generally, when plaintiffs have failed to exhaust state remedies, the actions are dismissed, thereby forcing plaintiffs "to completely begin their quest for relief anew." Grace v. Butterworth, 635 F.2d 1, 10 (1st Cir. 1980), cert. denied, 452 U.S. 917, 101 S. Ct. 3053, 69 L. Ed. 2d 421 (1981); see also Alexander, 742 F.2d at 126-27. Cf. Slayton v. Smith, 404 U.S. 53, 92 S. Ct. 174, 30 L. Ed. 2d 209 (1971); Federal Practice and Procedure: Jurisdiction Sec. 4264, at 655 (1978).⁷ 

Therefore, we remand the action to the district court with instructions that it be dismissed.

REVERSED AND REMANDED WITH INSTRUCTIONS.