relief requires as its predicate a determination that a sentence currently being served is invalid or unconstitutionally long. (emphasis in original).
The Ninth Circuit said in Young that "all nine federal circuit courts to consider this question have arrived at the same conclusion," id. at 876, citing, inter alia, the Second Circuit's opinion in Mack, supra.
The present state of the law is summarized by Justice White's dissent from the denial of certiorari in Young, 111 S. Ct. 1090 (1991), which also embraced a refusal to review Bressman v. Farrier, 900 F.2d 1305 (8th Cir. 1990):
These petitions raise the questions whether the exhaustion requirement of 28 U.S.C. § 2254 applies when state prisoners, in a suit under 42 U.S.C. § 1983, challenge the duration or conditions of their confinement but seek only damages or declaratory relief. The Eighth Circuit held here that exhaustion is required for § 1983 actions which include challenges to the conditions, as well as to the length or duration, of confinement. 900 F.2d 1305, 1308 (1990). See also Offet v. Solem, 823 F.2d 1256 (CA8 1987). The Seventh Circuit has adopted the contrary position. See Viens v. Daniels, 871 F.2d 1328, 1333-1334 (1989). The Ninth Circuit held here that exhaustion is required for § 1983 actions seeking damages, so long as the requested relief requires as its predicate a determination that a prisoner's sentence is invalid or unconstitutionally long. 970 F.2d 874, 876 (1990). Although no Court of Appeals has held to the contrary, several have recognized the apparent tension between this position and the decisions of this Court in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), and Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). See, e.g., 907 F.2d at 877; Viens, supra, at 1333; Gwin v. Snow, 870 F.2d 616, 623 (CA11 1989).
Because of the confusion and divergence of opinion these issues have generated in the Courts of Appeals, and the fact that this Court has not ruled definitively upon the issues presented, I would grant certiorari in these two cases. Id. at 1090-1091.
In the absence of controlling Supreme Court or Second Circuit authority, I am free to express my agreement with a case like Crump v. Lane, supra. I hold that in a case such as that at bar, where no on-going conditions of confinement are implicated, and any award of damages would be entirely dependent upon resolution of the validity of the duration of plaintiff's confinement, he must first exhaust his state remedies as required by 28 U.S.C. § 2254(b).
Rather than dismissing the action, I stay it pending plaintiff's compliance with § 2254(b). See Mack at 999-1000. I reach no other issue.
The action is stayed, pending plaintiff's compliance with 28 U.S.C. § 2254(b).
It is SO ORDERED.
Dated: New York, New York
July 2, 1992
CHARLES S. HAIGHT, JR.