United States District Court, N.D. Alabama, Southern Division
For John Doe, Plaintiff: Scott T Morro, MORRO LAW CENTER, Gardendale, AL.
For State of Alabama, Robert J. Bentley, Defendants: Laura E Howell, ALABAMA ATTORNEY GENERAL'S OFFICE, Montgomery, AL; William G Parker, Jr, OFFICE OF THE ATTORNEY GENERAL, Montgomery, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
STACI G. CORNELIUS, UNITED STATES MAGISTRATE JUDGE.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. The plaintiff, John Doe,  challenges the constitutionality of the Alabama Sex Offender Registration and Community Notification Act (" ASORCNA"), naming the State of Alabama and Governor Robert J. Bentley as defendants. (Doc. 1). The action was assigned to a magistrate judge pursuant to the district court's General Order of Reference dated January 14, 2013 and then reassigned to the undersigned on April 3, 2014. ( See docket entry dated April 3, 2014). Pending before the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and LR 72.1(b)(4) is a motion to dismiss filed by the defendants. (Doc. 8). As grounds, the defendants argue (1) the plaintiff has not perfected service, (2) they are entitled to Eleventh Amendment sovereign immunity, and (3) the complaint fails to state a claim on which relief may be granted. (Id.). The plaintiff has responded (Doc. 10). For the reasons discussed below, the defendants are entitled to Eleventh Amendment sovereign immunity. Therefore, the defendants' motion to dismiss is due to be granted, and this action is due to be dismissed.
The defendants purport to bring their motion to dismiss pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure. (Doc. 8 at 1). However, " a dismissal on sovereign immunity grounds should be pursuant to Rule 12(b)(1) because no subject-matter jurisdiction exists." Thomas v. U.S. Postal Service, 364 F.App'x 600, 601 n.3 (11th Cir. 2010). " [A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint." McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th Cir. 2007).
A " facial attack" on the complaint " require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." " 'Factual attacks, ' on the other hand, challenge 'the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.'"
Id. (internal citations omitted). No evidence outside the pleadings has been submitted for consideration. Therefore, the undersigned treats the defendants' motion to dismiss as a " facial attack" on the complaint and considers the plaintiff's allegations as true. See id.
The plaintiff was convicted of attempting to molest a child in violation of Arizona law in 1987. (Doc. 1 at ¶ 7). After serving a prison sentence in Arizona, the plaintiff was paroled and returned to his home state of Alabama. (Id. at ¶ 9). The plaintiff works full time as a software engineer, which requires him to travel intrastate, interstate, and internationally. (Id. at ¶ 14).
ASORCNA became effective on July 1, 2011, after the plaintiff returned to Alabama. (Id. at ¶ 15). The plaintiff claims the new law added extensive requirements and restrictions for adult sex offenders that violate his constitutional rights or constitute some other wrong. (Id. at ¶ 17). More specifically, the plaintiff alleges ASORCNA violates the Ex Post Facto Clause (Doc. 1 at Count I), his procedural and substantive due process rights ( id. at Counts II & III), the Eighth Amendment's prohibition against cruel and unusual punishment ( id. at Count IV), and the Equal Protection Clause ( id. at Count V). He further alleges ASORCNA constitutes harassment ( id. at Count VI), amounts to a breach of a contract entered into between himself and the State of Alabama ( id. at Count VII), violates Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), which he contends put an end to status crimes ( id. at Count VIII), and violates People v. Lent, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Cal. 1975), which he contends prohibits the imposition of restrictions unrelated to a crime ( id. at Count IX). The plaintiff requests that the district court declare ASORCNA unconstitutional and enjoin its enforcement. (Id. at 19-20).
The Eleventh Amendment bars suit against a state by its citizens in federal court. Specifically, the amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, ...