Smelcher v. Attorney General of State of Alabama

          MEMORANDUM OPINION

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         Pro se Plaintiff James Floyd Smelcher challenges the constitutionality of the Alabama Sex Offender Registration and Community Notification Act, Ala. Code §§ 15-20A-1 et seq. ("ASORCNA"). Defendant Steve Marshall, Attorney General of the State of Alabama, filed a motion to dismiss Plaintiffs complaint. (Doc. 9). In response, Plaintiff filed a motion for summary judgment. (Doc. 13). For the reasons explained below, the court finds that all of Plaintiff's claims are barred by the applicable statute of limitations. Therefore, the court GRANTS Defendant's motion to dismiss and DENIES Plaintiffs motion for summary judgment as MOOT.

         I. BACKGROUND

         When resolving a motion to dismiss, the court must accept as true the factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). The court also may consider documents central to a plaintiffs claims when no party disputes the authenticity of the documents. See Day v. Taylor, 400 F.2d 1272, 1276 (11th Cir. 2005). Accordingly, the court's description of the relevant facts incorporates Plaintiffs allegations and unchallenged documents that Plaintiff submitted in support of his claims. (See Doc. 13 at 4-13).

         According to the complaint, Plaintiff was charged with "rape of [an] adult" in 1979. (Doc. 1 at 1). Plaintiff served time in jail after his rape conviction and was released from custody in 1983. (Id. at 2). In 2011, the State of Alabama enacted ASORCNA. (Doc. 1 at 2; Doc. 13 at 5). On December 3, 2011, Mr. Smelcher signed a document acknowledging that he was aware of ASORCNA's requirements and his obligations under the law, and he initialed 28 statements that summarize ASORCNA requirements. (Doc. 13 at 7-13).

         Plaintiff alleges that ASORCNA applies retroactively to his rape conviction and subjects him to its various restrictions for the rest of his life. (Doc. 1 at 1-4). For example, Plaintiff, who lives in Oxford, Alabama, must pay a $10 registration fee to the City every 90 days and a separate $ 10 registration fee to the county. (Id. at 2). In 2000, local law enforcement told Plaintiff that he could not live with his wife and children. (Id. at 2-3). Plaintiff alleges that in 2017, he discovered this was incorrect because ASORCNA allows him to live with his own children and stepchildren. (Id.). In 2000, after he obtained a commercial driver's license, Plaintiff was told that he was prohibited from being away from his residence more than three consecutive days. (Id. at 3). Plaintiff alleges that because of ASORCNA, the words "criminal sex offender" appear in red on his driver's license. (Doc. 1 at 3). Plaintiff alleges that his landlord makes him pay higher rent because he is a sex offender. (Id. at 4). Plaintiff also alleges that he cannot move into a retirement home of choice because of its proximity to a school or daycare. (Doc. 13 at 2).

         Based on these allegations, Plaintiff filed suit against the Attorney General of the State of Alabama. (Doc. 1). Plaintiff contends that ASORCNA constitutes cruel and unusual punishment and double jeopardy. (Doc. 1 at 1). Plaintiff also appears to assert that the statute violates his due process rights. (Doc. 1 at 2-4). Plaintiffs complaint does not contain separate counts that clearly identify his claims, but the court has liberally construed Plaintiffs allegations, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and finds that Plaintiff asserts claims under 42 U.S.C. § 1983 for violations of various constitutional rights.

         On October 5, 2018, Defendant filed a motion to dismiss Plaintiffs complaint. (Doc. 9). In response to Defendant's motion to dismiss, on November 2, 2018, Plaintiff filed a document titled "Motion for Summary Judgment." (Doc. 13). Plaintiff did not respond substantively to Defendant's argument for dismissal or advance arguments concerning his entitlement to summary judgment. Instead, Plaintiff reasserted the general nature of the allegations in his complaint that ASORCNA violates his constitutional rights. (See generally Doc. 13 at 1-3). On November 11, 2018, Defendant filed a consolidated response in opposition to Plaintiffs motion for summary judgment and reply brief in support of its motion to dismiss. (Doc. 16).

         II. DISCUSSION

         The Defendant moves to dismiss Plaintiffs complaint, contending that all of Plaintiffs claims are barred by the statute of limitations. (Doc. 10 at 9-14).^[1] The court agrees.

         A statute of limitations bar is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in his complaint. La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004). Therefore, "[dismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred." Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005) (internal quotation marks omitted).

         "All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought." Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008) (internal quotation marks omitted). In Alabama, that limitations period is two years. Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). Therefore, Plaintiff was required to bring his claim within two years from the date the limitations period began to run.

         For a § 1983 claim, "the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). "Thus Section 1983 actions do not accrue until the plaintiff knows or has reason to know that he has been injured." Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).

         Plaintiffs complaint alleges that he became subject to ASORCNA when it was enacted in 2011. (Doc. 1 at 2). In addition, Plaintiff received a letter from the Calhoun County Sheriffs Office explaining that effective July 1, 2011, the "Alabama legislature signed new sex offender registration and notification guidelines into law." (Doc. 13 at 5). The letter provides information about some of the new guidelines. The letter states that pursuant to the new law, all sex offenders must: (1) register four times a year and pay a $10 quarterly fee; (2) provide notice of intent to leave his or her county of residence for three or more consecutive ...