United States District Court, Northern District of Alabama, Northeastern Division
November 6, 2014
DAVID T. UNDERWOOD, Plaintiff,
CULLMAN COUNTY SHERIFF'S OFFICE, et al., Defendants
David T. Underwood, Plaintiff, Pro se, Clayton, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, David T. Underwood, has filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged. Plaintiff is currently incarcerated at Ventress Correctional Facility in Clayton, Alabama. Plaintiff names as defendants the State of Alabama, Cullman County Sheriff's Office, Cullman County Sheriff Mike Rainey, and Ulalile Hadley. Plaintiff seeks monetary and injunctive relief. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Thus, under § 1915A, the court may sua sponte dismiss a prisoner's complaint prior to service. Nevertheless, in order to protect a pro se prisoner's right of access to the courts, these complaints are read by less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984); Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).
Plaintiff was convicted of promoting prostitution and is now subject to the provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA). Ala. Code § § 15-20A-3(a) -- (b), 15-20A-5(12) (1975). (Compl. at 3.) Plaintiff's picture was publicized in flyers identifying him as a sex offender but there was no information on the flyers and notices concerning the crime plaintiff was convicted of. ( Id.) Plaintiff contends that he was not convicted of rape or child molestation but merely ran an escort service. ( Id.) Plaintiff alleges that Ms. Ulalile Hadley is responsible for placing flyers in the community regarding sex offenders living in the area. (Compl. at 3.)
Plaintiff claims that he was almost murdered when an individual broke into his home and bludgeoned him. ( Id. at 2.) The Cullman County Sheriff's Office made a report of the assault but failed to fully investigate the incident and made no arrest. ( Id. at 3.) Plaintiff claims that the individual responsible for assaulting him is now in jail but law enforcement will not charge him with the crime. ( Id. at 3.)
For relief, plaintiff requests that he not be identified as a " sex offender" because the phrase " sounds like a continuing profession such as a lawyer/plumber/carpenter/manager." (Compl. at 3.) He seeks review of the constitutionality of the ASORCNA and requests monetary relief for the " attempt on [his] life." ( Id.)
A. State of Alabama.
Plaintiff names the State of Alabama as a defendant. It is well settled that the Eleventh Amendment to the United States Constitution bars § 1983 claims in federal court against the state or an agency of the state. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). As the Supreme Court has stated:
[T]here can be no doubt . . . that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, sec. 14, of the Alabama Constitution, which provides that " the State of Alabama shall never be made a defendant in any court of law or equity."
Alabama v. Pugh, 438 U.S. at 782. Accordingly, plaintiff cannot maintain a § 1983 action against the State of Alabama and his claims against the State are due to be dismissed.
B. Sovereign Immunity.
To the extent plaintiff's constitutional claims are brought against state actors in their official capacities for money damages, such claims are due to be dismissed under the doctrine of sovereign immunity. As stated previously, the Eleventh Amendment to the United States Constitution bars 42 U.S.C. § 1983 claims against the state or an agency of the state. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Likewise, lawsuits against a state official in his or her official capacity are suits against the state when " the state is the real, substantial party in interest." Id. at 101. A lawsuit seeking only prospective injunctive relief against a state official may proceed, however, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984). An official who acts in an unconstitutional manner " is 'stripped of his official or representative character....'" Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104, 104 S.Ct. 900, 910, 79 L.Ed.2d 67 (1984), citing Young, 209 U.S., at 160, 28 S.Ct., at 454.
Based on the foregoing, plaintiff's constitutional claims against state actors, in their official capacities for monetary relief, are due to be dismissed.
C. Cullman County Sheriff's Office.
Plaintiff names the Cullman County Sheriff's Office as a defendant. However, sheriff's departments and police departments are not legal entities subject to suit under 42 U.S.C. § 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). Therefore, the Cullman County Sheriff's Office is due to be dismissed.
D. Sheriff Mike Rainey & Ulalile Hadley.
Liberally construing plaintiff's complaint, he alleges that Cullman County Sheriff Mike Rainey and Ulalile Hadley, in their personal capacities, are responsible for enforcing the ASORCNA. Plaintiff contends that someone attempted to murder him in his home as a result of his status as a convicted sex offender. Specifically, he claims that flyers and notices distributed pursuant to the ASORCNA identified him as a sex offender and put his life in danger. He alleges that he was almost killed as a result.
Plaintiff has not alleged any facts in his complaint that associate the distribution of flyers and notices pursuant to the ASORCNA with the assault against him in his home. Instead, plaintiff makes only speculative and conclusory statements that he was attacked in his home because of flyers identifying him as a sex offender.
The allegations in the complaint must be detailed enough to notify defendants of the claims. See GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998) (holding that the complaint in civil rights cases must allege the relevant facts " with some specificity"). " [M]ore than mere conclusory notice pleading is required . . . . [A] complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory." Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Plaintiff cannot rely on his subjective and unsupported speculation but must provide sufficient facts to show how the conduct of defendants violated his constitutional rights. Therefore, his claims are due to be dismissed for failing to state a claim upon which relief may be granted.
Moreover, even if plaintiff could allege facts showing a causal link between the ASORCNA flyers and the attack, the defendants are not legally liable for the criminal action of a third party. The criminal acts of the third party are solely his responsibility.
Additionally, to the extent plaintiff complains that the Cullman County Sheriff's Office has failed to arrest the individual responsible for attacking him, " a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).
Even if plaintiff had sufficiently alleged facts to support that the assault on him was linked to the distribution of flyers identifying him as a sex offender, his claims would still fail. Plaintiff does not assert that the ASORCNA violates a specific constitutional right. The court assumes arguendo that plaintiff claims the ASORCNA's community notification requirements constitute an additional punishment and, therefore, violate the Ex Post Facto Clause. Additionally, the court assumes arguendo that plaintiff's complaints concerning the dissemination of his personal information in flyers within the community violates his right to privacy and subjects him to physical attack in violation of the Due Process Clause of the Fourteenth Amendment.
1. Ex Post Facto Clause.
The Ex Post Facto Clause directs that 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. 386, 390, 1 L.Ed. 648, 3 Dall. 386 (1798). Imposition of punishment upon plaintiff under the ASORCNA is an essential element in considering an ex post facto challenge.
The opinion issued by the United States Supreme Court in Smith v. Doe is dispositive of plaintiff's ex post facto claim. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In Smith, the Court addressed an ex post facto challenge to the Alaska Sex Offender Registration Act, which is similar to the Alabama Sex Offender Registration and Community Notification Act in its registration and notification requirements. The Smith Court set out a two-step analysis to determine whether an act constitutes retroactive punishment or civil proceedings. Id. at 90-91. The first step is to determine whether the intent of the legislature was to impose punishment or enact a non-punitive civil regulatory scheme. Id. If the intent was to enact a regulatory scheme, then step two is to determine whether the act is so punitive in effect as to negate the intention to be regulatory. Id. Under this second step, the Court stated, " Only the clearest proof will suffice to override legislative intent and transform what has been dominated a civil remedy into a criminal penalty." Id.
Applying this same analysis to the ASORCNA, it is necessary to first decide whether the intent of the Alabama Legislature was to impose punishment on sex offenders. If the answer is " yes, " the analysis ends because retroactive application of the statute would constitute an ex post facto violation. Id. at 90. The Alabama Legislature specifically noted in the ASORCNA that " its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public and, most importantly, promote child safety." Ala. Code § 15-20A-2(5) (1975).
However, the Legislature's intent does not end the review. The next step requires an examination of the ASORCNA to see if it is " so punitive in either purpose or effect as to negate [the State's] intention to deem it 'civil.'" Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The Supreme Court in Smith held that in analyzing the effect of sex-offender registration statutes, it is helpful for reviewing courts to refer to the seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Those factors include whether the sanction: (1) involves an affirmative disability or restraint; (2) has historically been regarded as a punishment; (3) comes into play only on a finding of scienter; (4) will promote the traditional aims of punishment, retribution, and deterrence; (5) applies to behavior which is already a crime; (6) appears excessive in relation to the alternative purpose assigned; and (7) whether an alternative purpose to which the sanction rationally may be connected is assignable to it. Id. The factors the Smith Court found most relevant to a review of the sex offender statute were whether, " in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose." Smith, 538 U.S. at 97.
In reviewing the community notification provisions of the ASORCNA,  there is no provision for a traditional form of punishment. Second, the ASORCNA does not subject offenders to an affirmative disability or restraint. Any disability suffered by an offender is the result of the initial crime, not the registration requirement. Third, the ASORCNA does not impose any additional punishment on an offender. While failure to comply with the reporting requirements could result in a criminal prosecution, that prosecution would be for a new offense, not the original one. Fourth, the ASORCNA has a rational connection to the legitimate non-punitive purpose of public safety, which is advanced by alerting the public to the risk posed by a sex offender in their community. Fifth, the regulatory scheme is not excessive with respect to the ASORCNA's purpose. The Smith Court noted that the question here is not whether the legislature made the best choice possible to address the problem it seeks to remedy, but whether the regulatory means chosen are reasonable in light of the non-punitive objective. The ASORCNA meets this standard. Using Smith v. Doe as a guide, the ASORCNA is non-punitive and does not violate the Ex Post Facto Clause.
2. Due Process Clause
To the extent plaintiff asserts that public dissemination of information identifying him as a sex offender violates his privacy and subjects him to physical attack, he has not stated a substantive due process claim under the Fourteenth Amendment. Due process is not implicated because plaintiff has failed to establish a legitimate privacy interest in preventing compilation and dissemination of accurate information concerning plaintiff's conviction which is already in the public domain. Smith, 538 U.S. at 100. More importantly, " [a]lthough the public availability of the information may have a lasting . . . impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant." Smith, 538 U.S. at 101; see U.S. v. Ambert, 561 F.3d 1202, 1209 (11th Cir. 2009) (noting that a state's publication of truthful information that is already available to the public does not infringe the fundamental constitutional rights of liberty and privacy). Therefore, plaintiff's Fourteenth Amendment substantive due process claim is due to be dismissed.
The court does not seek to downplay plaintiff's allegation that he was brutally attacked in his home. Unfortunately, plaintiff's facts, as alleged in his complaint, fail to state a cognizable claim for relief against these named defendants.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that the claims be DISMISSED for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1).
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Objections not meeting the specificity requirement set out above will not be considered by a district judge.
A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.
The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff.