United States District Court, N.D. Alabama, Western Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
STACI G. CORNELIUS, Magistrate Judge.
On or about April 15, 2014, James Edward Spencer filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged by his arrest and incarceration at the Tuscaloosa County Jail in Tuscaloosa, Alabama. Plaintiff names the following individuals as defendants in their official and individual capacities: Alabama Governor Robert Bentley, Alabama Attorney General Luther Strange, Alabama Director of Public Safety Hugh McCall, Tuscaloosa County Sheriff William Sharp, and Deputy Charles Ray Jacobs (collectively, "Defendants"). (Doc. 1 at 3-4). In his complaint, Plaintiff seeks a declaratory judgment hearing to determine whether the Alabama Sex Offender Registration and Community Notification Act is unconstitutional as applied to him, a preliminary and permanent injunction that enjoins enforcement of the Act, restoration of his driver's license back to the "status quo, " and compensatory and punitive damages. ( Id. at 8). On or about July 11, 2014, Plaintiff filed a motion requesting a preliminary injunction enjoining enforcement of the Act. (Doc. 8). 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 (1991). The purpose of this report and recommendation is to address the request for preliminary injunctive relief Plaintiff makes in his complaint (Doc. 1) and by motion (Doc. 8).
I. Standard of Review
"A preliminary injunction is an extraordinary and drastic remedy not to be granted until the movant clearly carries the burden of persuasion as to the four prerequisites." Northeastern Fla. Chapter v. Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). To obtain a preliminary injunction a movant must demonstrate "(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest." Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985); Gold Coast Publ'ns, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994).
II. Factual Allegations
Plaintiff admits he was convicted of first degree sexual abuse in 1988, for which he was released from prison in 1991. (Doc. 1 at 3). Although he claims Alabama's sex offender registration and notification law has continually violated his constitutional rights from November 15, 1997 to the present, Plaintiff's current troubles and the impetus for the present lawsuit began on March 14, 2014. ( Id. ).
On that date Deputy Sheriff Charles Ray Jacobs arrested Plaintiff in the carport of his sister's home in Tuscaloosa, Alabama for ASORCNA violations. ( Id. at 5). The warrants accused Plaintiff of establishing a residence at his sister's home between December 25, 2013 and March 14, 2014 without registering that address, which was within "2000 feet of a school or childcare facility... or with a minor." ( Id. at 18-22) (citing Ala. Code §§ 15-20A-10 & 11).
After his arrest Plaintiff signed a Miranda waiver and gave a written statement. ( Id. at 9-10). He wrote:
I was put out of Jesus Way Shelter on December 25, 2013. Since that time I have been registering as homeless with Inv. Dean at a location of the Old Credit Union Building at the area of Kicker Rd and 25th Ave E. Since December of 2013, on cold nights, I have been staying at my sisters house (2200 3rd St. E.) three or four nights a week. I have a great niece, Jemera Anthony, age 6 and a great nephew, Jonathon Anthony, age 3, who also live at the residence. I told Inv. Dean that I have a sister who lives close by and I would stay there when it was cold, and out of the weather.
I asked Deputy Jacobs if he understood the U.S. Constitution and he said that he did. I told him that this law has Supreme Court cases that make it invalid and he still arrested me.
( Id. at 10-11).
The State moved to dismiss the original case brought against Spencer in connection with his March 14th arrest because "the acts outlined in the deposition [did] not reflect the charge listed on the warrant." ( Id. at 14); see also State v. Spencer, DC-2014-20636. However, in its motion to dismiss, the State indicated the Tuscaloosa County Sheriff's Office intended to "obtain a warrant with the correct deposition." ( Id. ). State court records confirm three pending ASORCNA violation charges stemming from the factual circumstances described by Plaintiff. See State v. Spencer, DC-2014-20637, DC-2014-20638 and DC-2014-20763. Plaintiff waived preliminary hearings in each case on May 14, 2014, and the cases are currently awaiting examination by a grand jury. ( Id. )
In his complaint, Plaintiff claims the Act as applied to him violates numerous constitutional rights and other federal laws. (Doc. 1 at 3-8). He demands a preliminary injunction to enjoin enforcement of the Act but does not specifically assert the law he relies upon for that relief. ( Id. at 8).
In a separate motion for preliminary injunctive relief, however, Plaintiff claims ASORCNA is being unconstitutionally applied to him in violation of the Ex Post Facto Clause and procedural and substantive due process. (Doc. 8 at 2-4, 6). He declares because of the Act, "he can't live with [his] sister, family or friends" and demands his "immediate release from custody" because he is "factual[ly] and actual[ly] ...