Paul Murphy v. Deborah Rychlowski, et al
Filing
Filed opinion of the court by Judge Williams. AFFIRMED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Ann Claire Williams, Circuit Judge. [6862590-1] [6862590] [16-1662]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1662
PAUL MURPHY,
Plaintiff‐Appellant,
v.
DEBORAH RYCHLOWSKI, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:14‐cv‐00685‐jdp — James D. Peterson, Chief Judge.
____________________
ARGUED SEPTEMBER 29, 2016 — DECIDED AUGUST 18, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir‐
cuit Judges.
WILLIAMS, Circuit Judge. Paul Murphy was convicted of
rape by force in Los Angeles County, California 37 years ago.
Because of that conviction, California law required Murphy,
while he resided in the state, to register as a sex offender for
the rest of his life. Murphy moved to Wisconsin 21 years after
he committed this offense and was arrested and convicted of
aggravated assault. While he never registered with the State
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of Wisconsin as a sex offender, the Wisconsin Department of
Corrections (the “Department”) determined that because of
his California conviction, Murphy should register as a sex of‐
fender for the rest of his life once he was released from prison,
in Wisconsin.
In 2012, Murphy challenged the Department’s determina‐
tion that he must register as a sex offender. After a short in‐
vestigation, the Department concluded that he was not re‐
quired to register in Wisconsin. It removed Murphy from the
registry, and for almost two years, Murphy was free from the
restrictions placed upon sex offenders and from the state’s
registration requirements. But, when Murphy brought this
current suit, the Department determined that it had erred
when it relieved Murphy of these obligations, and returned
him to the registry in October 2014.
Murphy brings suit pursuant to 42 U.S.C. § 1983. He ar‐
gues that he was denied his constitutional right to due process
before being placed on the registry by the Department. Be‐
cause he did not receive prior notice and an opportunity to be
heard, Murphy believes he was erroneously listed as a sex of‐
fender. We disagree, as the Supreme Court has been clear that
the Constitution does not require that a state provide individ‐
uals with process before being placed on a sex offender regis‐
try if the decision to do so is based upon an individual’s con‐
viction. Because Murphy’s registration status in California is
dependent upon his conviction in that state, Murphy was not
entitled to process before being placed on the Wisconsin reg‐
istry and we affirm the district court’s grant of summary judg‐
ment to the defendants.
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I. BACKGROUND
A. California Conviction
On August 28, 1979, Paul Murphy raped a 35‐year‐old
woman during a robbery. He was 19 years old at the time. He
was convicted of rape by force in January 1980, in Los Angeles
County, California. As a result, he served a prison sentence
and was released on September 7, 1986, remaining on parole
until March 6, 1990. Because of this conviction and pursuant
to California law, Murphy, for the remainder of his life, must
register with California’s Sex Offender Registry while resid‐
ing in California.
B. Wisconsin Incarceration
In March of 2001—11 years after completing parole—Mur‐
phy moved to Wisconsin. Although required to register for
the remainder of his life as a sex offender in California, Mur‐
phy did not register as a sex offender with the State of Wis‐
consin. Five months after his move, he was involved in a fight
with two men in Madison, Wisconsin. Although the dispute
was perhaps racially motivated, there was no sexual element
to the incident. Murphy was convicted of battery in Wiscon‐
sin state court and was sentenced to a 15‐year bifurcated sen‐
tence, which consisted of seven and a half years’ confinement
followed by an equivalent term of extended supervision.
C. Murphy Required to Register as Sex Offender
While incarcerated, Murphy was evaluated by a clinical
psychologist who concluded that despite Murphy’s prior con‐
viction, sex‐offender treatment was not recommended. The
Department also determined that Murphy would not be re‐
ferred for any further evaluation as a sexually violent person
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because there was insufficient evidence to label him as such.
Nor would a special bulletin be issued upon his release.
But before his release, the Department concluded that
Murphy’s 1980 California conviction, and the resulting life‐
time registration requirement, required him to register as a
sex offender while residing in Wisconsin. Murphy was re‐
leased from the state’s custody on February 17, 2009. Three
days later, on February 20, 2009, he received a letter from the
State of Wisconsin’s Sex Offender Registration Program that
informed him of the Department’s decision. The letter noted
that the failure to comply with the state’s registration require‐
ments would result in a Class H felony, punishable by either
a $10,000 fine, up to six years in prison, or both. This was the
first time that Murphy was made aware that his California
conviction required registration in Wisconsin.
After receiving the letter, Murphy completed the registra‐
tion form, dating it February 25, 2009. He noted on the bottom
of the form that he was completing it “under duress.” As a
registered sex offender, Murphy’s name, address, photo, and
physical description were posted on a public and searchable
website that the Department maintains.
D. Murphy Relieved From Registration Requirements
In 2012, Murphy retained an attorney to challenge his in‐
clusion on the Wisconsin Sex Offender Registry. That attorney
reached out to the California Department of Justice for guid‐
ance regarding Murphy’s reporting requirements under Cal‐
ifornia law. In an email dated June 27, 2012, a Deputy Attor‐
ney General for the California Department of Justice stated,
“[s]ince [Murphy] is living out of state, he is not currently re‐
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quired to register in California.” After Murphy’s counsel com‐
municated this information to the Department, it relieved
Murphy from Wisconsin’s reporting requirements in early
July 2012 and removed his information from its website.
E. Murphy Required to Register Again in 2014
Murphy was not registered as a sex offender in the State
of Wisconsin and was free of the obligations associated with
registration from July 2012 until October 2014. In October
2014, he filed this action. After receiving a records request
from Murphy’s attorney, a Department employee contacted a
Deputy Attorney General in the California Attorney Gen‐
eral’s Office for further guidance regarding Murphy’s report‐
ing requirements under California law. The Deputy Attorney
General informed the Department employee that since Mur‐
phy no longer lived in California, his information had been
removed from the public California Megan’s Law website,
but he was still active in the California Sex and Arson Registry
(“CSAR”), a law enforcement internet resource not available
to the general public. So, even though he was not publically
listed as a sex offender, Murphy’s information remained (and
continues to be) available to law enforcement in California.
After learning this, the Department concluded that Murphy
was still registered in California, and was, therefore, required
to register while residing in Wisconsin.
In a letter dated October 22, 2014, defendant Deborah
Rychlowski, an attorney for the Department, notified Murphy
of the Department’s decision. She provided Murphy with the
basis of the Department’s decision: that although his infor‐
mation was no longer published to the public, he remained
active on the CSAR. Further, because under California law,
Murphy would be placed on the public registry if he returned
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to California, the Department determined that he was re‐
quired to register with the state pursuant to Wis. Stat.
§ 301.45(1g)(f). Although Murphy disagreed with the Depart‐
ment’s determination, he fulfilled his obligations and regis‐
tered as a sex offender to avoid the penalties associated with
the failure to do so.
F. Proceedings Below
Murphy filed suit on October 9, 2014. He contends that the
Department violated his constitutional right to due process
when it did not provide him with notice and an opportunity
to be heard prior to placing him on the Sex Offender Registry.
He named as a defendant Rychlowski,1 the attorney who au‐
thored the letter informing him of the Department’s decision.
Later, he filed a Second Amended Complaint adding two
more Department employees as defendants—Gail Faust and
Sue Klemann.
Murphy asserts that had he received process, he would
never have been erroneously required to register. The district
judge, however, granted the defendants summary judgment,
finding that Connecticut Department of Public Safety v. Doe, 538
U.S. 1 (2003), dictated that Murphy was not entitled to process
prior to his placement on the registry. While declining Mur‐
phy’s invitation to answer the question of whether, as a mat‐
ter of Wisconsin law, he was required to register as a sex of‐
fender in Wisconsin, the district judge granted the defendants
1 Murphy amended his Complaint on February 9, 2015 to include
Rychlowski because of her involvement in the decision to return Murphy
to the registry in October 2014.
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summary judgment2 after concluding that Murphy received
adequate post‐deprivation process. Murphy now appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing the record in the light most favorable to Mur‐
phy, the non‐moving party, while also drawing all inferences
in his favor. Sorensen v. WD‐40 Co., 792 F.3d 712, 722 (7th Cir.
2015). Summary judgment is appropriate only where “there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).
To succeed on a § 1983 claim, a plaintiff must demonstrate
that the defendants: (1) acted under the color of state law; and
(2) deprived him of a constitutional right. Colbert v. City of
Chi., 851 F.3d 649, 656 (7th Cir. 2017). Here, there is no dispute
that the defendants were acting in their capacities as state em‐
ployees when they determined that Murphy’s registration
status in California required him to register as a sex offender
in Wisconsin.
The parties’ dispute focuses on whether Murphy was de‐
prived of a constitutional right. The Fourteenth Amendment
of the United States Constitution prohibits states from
“depriv[ing] any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1. Due Process
is a flexible concept, which varies with the particular situa‐
tion. Riano v. McDonald, 833 F.3d 830, 834 (7th Cir. 2016). But,
2 The district judge granted summary judgment before the additional
Department defendants, Gail Faust and Sue Klemann, had filed an An‐
swer to Murphy’s Second Amended Complaint.
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“[t]he fundamental requirement of due process is the oppor‐
tunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quot‐
ing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
We engage in a two‐part inquiry when evaluating a pro‐
cedural due process claim. See Hess v. Bd. of Trs. of S. Ill. Univ.,
839 F.3d 668, 673 (7th Cir. 2016). This requires that we deter‐
mine “whether the plaintiff was deprived of a protected prop‐
erty interest; if so, we determine what process was due under
the circumstances.” Id.; see also Armato v. Grounds, 766 F.3d
713, 721–22 (7th Cir. 2014) (same). But, because we find that
Connecticut Department of Public Safety v. Doe, bars Murphy’s
claim that he was entitled to process before being placed on
the registry, we need not determine whether he suffered a
deprivation of a protected liberty interest.
A. Murphy Not Entitled to Process Before Placement on
Registry
In Connecticut Department of Public Safety, the plaintiff
brought suit on behalf of himself and other purportedly non‐
dangerous sex offenders. He alleged that because the state’s
registration statute did not provide for a hearing to determine
whether a registrant is “currently dangerous” before place‐
ment on the registry, it violated the Due Process Clause. The
Supreme Court disagreed. The Court noted that registration
under the Connecticut statute was “based on the fact of pre‐
vious conviction, not the fact of current dangerousness.” 538
U.S. at 4. Because offenders received a “procedurally safe‐
guarded” opportunity to contest the charges against them
through the criminal justice system, no further process was
required. Id. at 7. Therefore, the Court held that “due process
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does not require the opportunity to prove a fact that is not
material to the State’s statutory scheme.” Id. at 4.
Murphy contends that Connecticut Department of Public
Safety is not applicable to his claim because he does not seek
to prove whether or not he is dangerous. Rather, he argues
that he seeks to prove facts that are material to Wisconsin’s
registration scheme—that he is neither currently required to
register as a sex offender in California nor currently registered
at this time. The Department’s own difficulty in making this
determination, he argues, demonstrates that Wisconsin’s law
is not straightforward in its application and that process is
necessary.
The Department, however, maintains that Connecticut De‐
partment of Public Safely, precludes Murphy’s claims, as one’s
registration status in another state turns on one’s conviction
status. Therefore, Supreme Court precedent dictates that
Murphy was not entitled to process.
We agree with the Department. It determined that Mur‐
phy was required to register pursuant to Wis. Stat.
§ 301.45(1g)(f), which states:
a person shall comply with the reporting re‐
quirements under this section if … On or after
December 1, 2000, [the person] is registered as a
sex offender in another state or is registered as
a sex offender with the federal bureau of inves‐
tigation under 42 USC § 14072 and is a resident
of this state, a student in this state or employed
or carrying on a vocation in this state.
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Because Murphy’s 1980 conviction for rape by force man‐
dated lifetime registration in California, the Department con‐
cluded that under this provision, Murphy must register as a
sex offender for the remainder of his life while residing in
Wisconsin.
Murphy does not contest that he was convicted of this
crime. Nor does he contend that he would not be required to
register as a sex offender for the remainder of his life if he
were living in California. Rather, he argues that California
law does not require him to register because he no longer lives
in the state. See Cal. Penal Code § 290 (stating that a person
convicted of rape by force must register for “the rest of his or
her life while residing in California”) (emphasis added).
But, what Murphy seeks to prove through pre‐deprivation
process is not a fact that is relevant to the determination of
whether he must register under Wisconsin law. Instead, he
seeks to challenge a legal determination that the Department
made when it interpreted Wisconsin law. We do not read Con‐
necticut Department of Public Safety as standing for the propo‐
sition that an individual is entitled to process to challenge the
legal determinations made by the authority charged under
state law with administering a sex offender statute. Nor do
we find compelling Murphy’s argument that his California
registration status is a fact relevant to the Wisconsin statute.
Because Murphy’s registration status in California was estab‐
lished after a procedurally safeguarded proceeding (the crim‐
inal proceedings), we hold that he was not entitled to pre‐reg‐
istration process pursuant to the Supreme Court’s holding in
Connecticut Department of Public Safety.
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B. Post‐Registration Process Was Adequate
Our decision in Schepers v. Commissioner, Indiana Depart‐
ment of Correction, 691 F.3d 909 (7th Cir. 2012), suggests that
although Murphy was not entitled to process before being
placed on the registry, the Constitution mandates that the De‐
partment have a procedure in place to correct errors listed in
the registry. See id. at 915 (finding that a policy that does not
allow for individuals to challenge errors reflected in a sex‐of‐
fender registry violates the Due Process Clause). Murphy con‐
tends that the self‐initiated and informal exchange between
his attorney and the Department cannot be sufficient to com‐
port with the requirements of due process.
We turn to the framework enumerated in Mathews v. El‐
dridge, 424 U.S. 319 (1976), when evaluating whether the pro‐
cess received offends the Constitution. Mathews dictates that
we must consider three distinct factors: (1) “the private inter‐
est that will be affected by the official action”; (2) the risk of
an erroneous deprivation of that interest under the proce‐
dures used; and (3) the government’s interest and the admin‐
istrative burdens of providing additional process. Id. at 335.
We discuss each factor in turn.
The burdens associated with being listed on a registry are
significant. The Wisconsin Sex Offender Registry is a public
and searchable online database that provides a registrant’s
photograph, name, name and date of offense, and home ad‐
dress. See generally Wis. Stat. § 301.45. Registration also limits
where an individual can go, see id. § 301.475(1) (prohibiting
registered sex offenders from being on school premises with‐
out notification to the school), or can work, see id. § 948.13
(prohibiting sex offenders from working with children). It
also prohibits an individual from changing his or her name.
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See id. § 301.47.3 One cannot deny the stigmatizing effect of
being erroneously placed on a registry. See Schepers, 691 F.3d
at 914.
Nonetheless, the second and third factors weigh in favor
of our conclusion that the process that Murphy received was
sufficient. The risk of erroneous registration is low—the stat‐
ute is based upon one’s registration status, a status which re‐
quires a criminal conviction. While Murphy argues that the
fact that the Department has reversed itself twice is evidence
that the statute’s application is not straightforward, he misses
the point. Mistakes can happen in any process. But under
Wisconsin law, individuals who are placed on the registry
have already had a procedurally safeguarded opportunity to
contest their status, thereby protecting against an erroneous
deprivation. And, this is not a case in which there is no pro‐
cess at all to challenge an erroneous listing on the registry. Ra‐
ther, Murphy was able to do so by contacting the Department,
whose address and phone number were clearly listed at the
top of the notification letter he received in February 2009.
Furthermore, the government’s interest here cannot be un‐
derstated, an assertion that Murphy seems to concede. See Ap‐
pellant’s Br. at 40 (“The district court said, no doubt correctly,
that the state interest behind sex offender registration pro‐
grams like Wisconsin’s was to protect people, especially chil‐
dren, from sex offenders.”). “Sex offenders are a serious threat
3 Murphy asserts that he is subject to additional restrictions because
he is a sex offender on supervised release. But, we find his reliance on
these restrictions unavailing, as they are not directly related to his status
as a sex offender, but rather, were imposed by virtue of his 2002 conviction
and are, therefore, irrelevant to this analysis.
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in this Nation,” McKune v. Lile, 536 U.S. 24, 32 (2002), and reg‐
istration programs, such as the one Wisconsin has enacted,
are aimed at protecting the public. According to the Center
for Sex Offender Management, about 12 to 24% of sex offend‐
ers reoffend. Center for Effective Public Policy, Fact Sheet:
What You Need to Know, CENTER FOR SEX OFFENDER
MANAGEMENT, http://www.csom.org/pubs/needtoknow_fs.p
df (last visited July 31 2017). Therefore, the government has a
real and justified interest in ensuring that the public has the
ability to access this registry information. This interest, cou‐
pled with the low probability of erroneous deprivation, lead
us to conclude that the process Murphy received was consti‐
tutionally adequate.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the defendants.
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