United States District Court, N.D. Alabama, Eastern Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
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.
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
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
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).
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.
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.
Defendant moves to dismiss Plaintiffs complaint, contending
that all of Plaintiffs claims are barred by the statute of
limitations. (Doc. 10 at 9-14). The court agrees.
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).
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
§ 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.
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 ...