United States District Court, N.D. Alabama, Southern Division
January 15, 2015
JOHN DOE, Plaintiff,
STATE OF ALABAMA, et al., Defendants
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, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. " Although this amendment does not expressly prohibit suits in federal court against a state by its own citizens, it has long been interpreted to bar such suits." Luckey v. Harris, 860 F.2d 1012, 1014 (11th Cir. 1988) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)); see also Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1021 (11th Cir. 1994) (" For more than a century, judicial interpretation of the Eleventh Amendment has far exceeded the apparent scope of the amendment's actual provisions."). Eleventh Amendment sovereign immunity extends to state officials sued in their official capacity, provided the state is the real, substantial party in interest. Harbert Intern., Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998).
There are three exceptions to the application of Eleventh Amendment sovereign immunity: (1) a state may consent to suit or waive its immunity, (2) Congress may abrogate the immunity, and (3) under the doctrine announced by the United States Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a citizen may sue a state official in his official capacity for prospective injunctive relief to end a continuing violation of federal law. See Seminole Tribe of Florida, 11 F.3d at 1021 (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Otherwise, " the Eleventh Amendment serves as a jurisdictional bar to the suit." Seminole Tribe of Florida, 11 F.3d at 1021; see also McClendon v. Georgia Dept. of Community Health, 261 F.3d 1252, 1256 (11th Cir. 2001) (" Because the Eleventh Amendment represents a constitutional limitation on the federal judicial power established in Article III, federal courts lack jurisdiction to entertain claims that are barred by the Eleventh Amendment." (internal citation omitted).
A. State of Alabama
The State of Alabama has not waived its Eleventh Amendment sovereign immunity. Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1429 (11th Cir. 1997) (citing Carr v. City of Florence, Alabama, 916 F.2d 1521, 1525 (11th Cir. 1990)); see also Ala. Const. Art. I, § 14 (" [T]he State of Alabama shall never be made a defendant in any court of law or equity."). Nor has Congress abrogated Eleventh Amendment sovereign immunity in section 1983 cases. Lancaster, 116 F.3d at 1429; Carr, 916 F.2d at 1525 (citing Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). The only argument the plaintiff makes in favor of subject matter jurisdiction as to the State of Alabama is that the Eleventh Amendment does not bar actions against a state by its own citizens. (Doc. 10 at 3-5). This argument is foreclosed by long-standing precedent directly to the contrary. See supra . Therefore, the plaintiff's claims against the State of Alabama are due to be dismissed, and the State of Alabama is due to be dismissed as a defendant from this action.
B. Governor Bentley
As an initial matter, the complaint does not specify whether Governor Bentley is sued in his individual or official capacity. ( See Doc. 1 at ¶ 6). Where the complaint is unclear in what capacity a state official is sued, a court " must look to 'the course of proceedings' which will 'typically indicate the nature of the liability sought to be imposed.'" Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th Cir. 1993). " [T]he question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual's assets." Gamble v. Florida Dept. of Health and Rehabilitative Services, 779 F.2d 1509, 1513 (11th Cir. 1986). Here, the plaintiff seeks only injunctive relief ( see Doc 1 at ¶ ¶ 6 and Prayer for Relief; Doc. 10 at 5) from the defendants. He requests that Governor Bentley " be enjoined from enforcing the Act." (Id. at ¶ 6). Furthermore, the parties have only briefed the issue of Eleventh Amendment sovereign immunity, which is a defense to suit against a state official in his official capacity only. See Jackson v. Dept. of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994) (Eleventh Amendment does not insulate state official from suit in his individual capacity); Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (state official sued in individual capacity may assert personal immunity defenses, such as absolute or qualified immunity). Therefore, the undersigned determines that the plaintiff names Governor Bentley in his official capacity only.
For the Ex parte Young exception to permit suit against a state official, that official must be " responsible for the challenged action." Luckey, 860 F.2d at 1015. " [I]t is sufficient that the state officer sued must, 'by virtue of his office, ha[ve] some connection' with the unconstitutional act or conduct complained of. '[W]hether [this connection] arises out of general law, or is specially created by the act itself, is not material so long as it exists.'" Id. at 1015-16 (quoting Ex parte Young, 209 U.S. at 157). However, the connection cannot be " too attenuated to establish that [the state official] is 'responsible for'" the challenged conduct. Women's Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003). Furthermore,
[a] governor's " general executive power" is not a basis for jurisdiction in most circumstances. If a governor's general executive power provided a sufficient connection to a state law to permit jurisdiction over him, any state statute could be challenged simply by naming the governor as a defendant. Where the enforcement of a statute is the responsibility of parties other than the governor, the governor's general executive power is insufficient to confer jurisdiction.
Id. at 949-50 (11th Cir. 2003) (internal citations omitted).
In his complaint, the plaintiff alleges Governor Bentley " has the duty to ensure that all of the laws of the State of Alabama are faithfully executed." (Doc. 1 at ¶ 6). The defendants argue neither a governor's general executive power nor his shared enforcement authority is sufficient to make him responsible for or otherwise connect him to the challenged conduct. (Doc. 8 at 7). They note ASORCNA does not mention Governor Bentley in its assignment of enforcement responsibility. (Id.). In response, the plaintiff contends not only does Governor Bentley have a duty to take care that the laws are faithfully executed, but also he was in office when ASORCNA was enacted and has been the chief executive responsible for enforcing it. (Doc. 10 at 2-3).
As argued by the defendants, a governor's general executive power, alone, is not a basis for application of the Ex parte Young exception. See Women's Emergency Network, 323 F.3d at 949-50; Searcy v. Bentley, 2014 WL 4162269, at *4 (S.D. Ala. Aug. 20, 2014) ( Ex parte Young exception did not permit suit against Governor Bentley challenging constitutionality of Alabama's Marriage Protection Act and Sanctity of Marriage Amendment to state constitution because he did not have enforcement responsibilities as to challenged laws and his general executive power was too attenuated a connection to establish his responsibility for implementation of challenged laws); Doe v. Jindal, 2011 WL 3925042, at *5 (E.D. La. Sept. 7, 2011) ( Ex parte Young exception did not permit suit against Louisiana governor challenging constitutionality of state's Crime Against Nature by Solicitation statute because his " generic constitutional duty as governor to 'see that the laws are faithfully executed'" did not establish requisite nexus between him and alleged unconstitutional act); see also Luckey, 860 F.2d at 1016 ( Ex parte Young exception permitted suit against Georgia governor regarding alleged deficiencies in provision of indigent defense services because he was responsible for law enforcement in state, was charged with executing laws faithfully, and pursuant to the Georgia Code had residual power to commence criminal prosecutions and final authority to direct attorney general to institute and prosecute on behalf of state). This is the only basis on which the plaintiff has joined Governor Bentley as a party to this action. Although the plaintiff contends Governor Bentley is the chief executive responsible for enforcing ASORCNA, he does not articulate how, and it appears the only sense in which this is true is to the extent Governor Bentley has a general duty to see that the laws of the State of Alabama are executed faithfully. As discussed, this is insufficient to establish Governor Bentley is responsible for the challenged action or has some other connection to it. Finally, although in his response to the defendants' motion to dismiss the plaintiff contends Governor Bentley was in office when ASORCNA was enacted, " [u]nder the doctrine of absolute legislative immunity, a governor cannot be sued for signing a bill into law." Women's Emergency Network, 323 F.3d at 950.
Because Governor Bentley is not responsible for enforcing ASORCNA and has no other connection with its enforcement within the meaning of Ex parte Young and its progeny, this action " is merely making him a party as a representative of the state, and thereby attempting to make the state a party." See Ex parte Young, 209 U.S. at 157; see also Harris v. Bush, 106 F.Supp.2d 1272, 1276 (N.D. Fla. 2000) (" A suit against a state official in his official capacity is not a suit against the official, but rather a suit against his office. As such it is no different from a suit against the state itself." (internal citation omitted)). Therefore, Governor Bentley is entitled to Eleventh Amendment sovereign immunity, the plaintiff's claims against him are due to be dismissed, and he is due to be dismissed as a defendant from this action.
IV. Recommendation & Notice of Right to Object
Based on the foregoing, the undersigned RECOMMENDS that the defendants' motion to dismiss (Doc. 8) be GRANTED and that this action be DISMISSED.
Pursuant to 28 U.S.C. ' 636(b)(1)(C) and Rule 72(b)(2), Fed. R. Civ. P., any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed in the office of the clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fourteen (14) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A
scopy of the objections must be served upon all other parties to the action.