Roper v. Olsen

Filing 23

MEMORANDUM OPINION AND ORDER that Sheriff Olson's motion to dismiss 17 is GRANTED. A separate judgment will be entered. Signed by Chief Judge William Keith Watkins on 8/26/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES AARON ROPER,
Plaintiff,
v.
WALLY OLSON,
Defendant.

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) CASE NO. 1:12-CV-623-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
In his Amended Complaint, Plaintiff James Aaron Roper alleges that the
Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”),
see Ala. Code §§ 15-20A-1 to 15-20A-48, as applied to him violates his procedural
due process rights guaranteed by the Fourteenth Amendment to the United States
Constitution. Defendant Wally Olson, the Sheriff of Dale County, Alabama, has filed
a motion to dismiss for lack of subject matter jurisdiction based on the absence of
standing and ripeness, as well as for failure to state a claim upon which relief can be
granted. (Docs. # 17, 18.) After careful consideration of the arguments and relevant
law, the court finds that Sheriff Olson’s motion is due to be granted.

I. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges

the court’s subject matter jurisdiction. McElmurray v. Consol. Gov’t of AugustaRichmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule 12(b)(1) facial
attack, the court evaluates whether the complaint “sufficiently allege[s] a basis of
subject matter jurisdiction,” employing standards similar to those governing Rule
12(b)(6) review. Id.
B.

Rule 12(b)(6)
When evaluating a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), the court must “take the facts alleged in the complaint as true and
construe them in the light most favorable to” the plaintiff. Danley v. Allen, 540 F.3d
1298, 1304 (11th Cir. 2008). To survive Rule 12(b)(6) scrutiny, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).
2

II. BACKGROUND
A.

Facts and Procedural History
The following facts, accepted as true, are from the Amended Complaint. Mr.

Roper has a 1990 conviction for a violation of a Florida statute proscribing indecent
exposure of sexual organs. See Fla. Stat. § 800.03. The Florida courts did not
designate Mr. Roper as a sexual predator for purposes of Florida’s registration
requirements under the Florida Sexual Predators Act (“FSPA”). See Fla. Stat.
§ 775.21. Consequently, Mr. Roper did not have to register as a sexual predator under
Florida law.
Fast forward two decades: Mr. Roper is no longer living in Florida, but in
Alabama. On July 10, 2012, deputies under the command of Sheriff Olson contacted
Mr. Roper and ordered him to “register as a sex offender under [ASORCNA].”1 (Am.
Compl. ¶ 5.) When Mr. Roper refused, Sheriff Olson threatened to arrest him.
Ultimately Sheriff Olson did not carry through with that threat because Mr. Roper’s
attorney and the Dale County district attorney’s office agreed to “postpone[ ]” all arrest
procedures pending the filing and resolution of a lawsuit. (Am. Compl. 3.)

1

The sparse rendition of the facts is due to the dearth of allegations in the Amended
Complaint.

3

This lawsuit followed. The original Complaint asserted a “due process”
violation based upon ASORCNA’s requirement that Mr. Roper register as a sex
offender; however, the Complaint had many shortcomings.

Among them, the

Complaint did not indicate whether the alleged violation was substantive or procedural
in nature. (Compl. ¶ 1.) It also erroneously alleged a due process violation under the
Fourth Amendment (Compl. ¶ 1) and relied upon ASORCNA’s predecessor that had
been repealed (Compl. ¶ 11). Sheriff Olson responded to the Complaint with a Rule
12(b)(6) motion to dismiss. Based upon the Complaint’s vague and confusing
allegations, the court denied the motion to dismiss and permitted Mr. Roper to amend
his Complaint. (Order (Doc. 14).)
In his Amended Complaint, which is the operative pleading, Mr. Roper alleges
that ASORCNA’s registration requirement violates his Fourteenth Amendment right
to procedural due process. He brings his as-applied challenge under 42 U.S.C. § 1983,
requesting a declaratory judgment that he “does not have to register as a sex offender”
under ASORCNA and an injunction restraining Sheriff Olson from requiring him to
register as a sex offender. (Am. Compl. ¶¶ 1, 3 (prayer for relief).) Sheriff Olson
responded to the Amended Complaint with the instant motion to dismiss.

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B.

ASORCNA: Generally
ASORCNA, as applicable to this case, establishes registration and community

notification requirements for adult sex offenders convicted of designated sex offenses
proscribed by Alabama law. See Ala. Code § 15-20A-5(1)-(32) (enumerating thirtytwo crimes). ASORCNA also applies to adults convicted in states other than Alabama
under specified circumstances.

Namely, ASORCNA applies to “[a]ny crime

committed in . . . any other state which, if it had been committed in this state under the
current provisions of law, would constitute” one of the sex offenses set out in
§ 15-20A-5(1)–(32). Ala. Code § 15-20A-5(33).
Under ASORCNA, an adult sex offender must register with the sheriff of the
county where he or she lives, works, or attends school, or where he or she intends to
do any of these three things. See Ala. Code §§ 15-20A-10, 15-20A-14. Registration
requires offenders to provide their full name, date of birth, street address, physical
identifiers, employment and school information, driver’s license number, criminal
history information, photograph, and fingerprints. Failure to register is a Class C
felony. See Ala. Code §§ 15-20A-10(j), 5-20A-14(e).
The registration requirement also applies to individuals, such as Mr. Roper, who
have been convicted of sex-related crimes in states other than Alabama. There are,
however, procedural mechanisms in place for these individuals to challenge the
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applicability of ASORCNA to their out-of-state convictions. See Ala. Code § 15-20A44(a) (“The Director of the Department of Public Safety [“ADPS”] shall promulgate
rules establishing an administrative hearing for persons who are only made subject to
this chapter pursuant to subdivision (33) of Section 15-20A-5.”). Based on § 1520A-44’s directive, the ADPS’s director promulgated a rule, titled “Foreign
Jurisdiction Convicted Sex Offender Registration, Notification, and Due Process
Hearings.” ADPS Rule 760-X-1-.21. The rule provides that, prior to community
notification, the ADPS “will make a preliminary determination concerning the
applicability of the Act to the offender.” Id. The offender may appeal an adverse
preliminary determination through timely written notification to the ADPS’s legal unit
and receive a hearing before an Administrative Law Judge (“ALJ”). Additionally, the
offender may appeal an adverse ALJ decision to the Circuit Court of Montgomery
County. See id.
In circumstances where a registrant is subject to ASORCNA’s community
notification requirements, ASORCNA mandates the distribution of community
notification flyers to those living near the registrant’s residence.

See id.

at § 15-20A-21. It also provides for a “public registry website maintained by the
Department of Public Safety,” which includes specified personal identification
information on each registrant. Id. at § 15-20A-8.
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III. DISCUSSION
As grounds for his motion to dismiss, Sheriff Olson argues first that subject
matter jurisdiction is lacking based upon standing and ripeness and second that the
Amended Complaint fails to state a Fourteenth Amendment procedural due process
claim. The court finds that the Amended Complaint alleges facts demonstrating
standing and ripeness, but not facts that state a procedural due process claim. Before
delving into the analysis, however, the court makes a preliminary observation about
the nature of Mr. Roper’s claim.
A.

Preliminary Observation: The due process claim is about ASORCNA’s

registration requirement.
To streamline the analysis, it is helpful initially to set out the contours of Mr.
Roper’s Fourteenth Amendment due process clam. The Amended Complaint alleges
that Mr. Roper’s out-of-state conviction is not a qualifying ASORCNA conviction and,
therefore, that Mr. Roper’s registration would amount to a procedural due process
violation. (See Am. Compl. ¶ 5 (“[T]he requirement that he register violates due
process.”).) Mr. Roper’s claim then is about ASORCNA’s registration requirement.
(See Doc. # 11 (Mr. Roper “is entitled to due process before being compelled to
register as a sex offender.”).) It is not about ASORCNA’s notification requirement.

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The distinction between the registration and notification requirements is important both
for the Rule 12(b)(1) jurisdictional analysis and the Rule 12(b)(6) review.
The Amended Complaint also is not about the ADPS’s rule establishing postregistration/pre-notification procedural safeguards for individuals, like Mr. Roper, who
contend that their out-of-state convictions are not within ASORCNA’s scope. See
ADPS Rule 760-X-1-.21. Mr. Roper does not mention these procedures, either in his
Amended Complaint or briefing.
B.

Mr. Roper has standing and his due process claim is ripe.
The standing and ripeness analysis focuses on the alleged infirmity of process

with respect to ASORCNA’s registration requirement.2 Article III, § 2, of the United
States Constitution “limits the jurisdiction of federal courts to Cases and
Controversies, which restricts the authority of federal courts to resolving the legal
rights of litigants in actual controversies.” Genesis Healthcare Corp. v. Symczyk, --U.S. ---, ----, 133 S. Ct. 1523, 1528 (2013) (citations and internal quotation marks
omitted). Both standing and ripeness originate from Article III’s case-or-controversy

2

For purposes of the jurisdictional analysis, the court presumes the validity of the alleged
constitutional violation. See, e.g., In re Navy Chaplaincy, 697 F.3d 1171, 1175 (D.C. Cir. 2012)
(“[I]n reviewing the standing question, we must . . . assume that on the merits the plaintiffs would
be successful in their claims.” (citation and internal quotation marks omitted)). Additionally,
because standing and ripeness pertain to subject matter jurisdiction, Rule 12(b)(1) governs the
analysis. Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs.,
225 F.3d 1208, 1227 n.14 (11th Cir. 2000).

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requirement. Elend v. Basham, 471 F.3d 1199, 1204–05 (11th Cir. 2006). Although
separate doctrines, standing and ripeness share Article III’s requirement that “a party
must suffer injury or come into immediate danger of suffering an injury before
challenging a statute.” United States v. Veal, 322 F.3d 1275, 1278 (11th Cir. 2003)
(quoting Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999) (analyzing
ripeness)); see also Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244–45 (11th
Cir. 1998) (analyzing standing).
Sheriff Olson focuses his argument on the doctrines’ shared injury element. He
contends that because Mr. Roper has not yet registered under ASORCNA, Mr. Roper
lacks an injury sufficient to confer standing and his claim is not ripe. But Sheriff
Olson cites no authority for his contention, and the court finds that it is contrary to the
law of this Circuit and the Supreme Court.
Where a plaintiff brings a “preenforcement, constitutional challenge to a state
statute, the injury requirement may be satisfied by establishing ‘a realistic danger of
sustaining direct injury as a result of the statute’s operation or enforcement.’” Ga.
Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir.
2012) (citation and internal quotation marks omitted). “A plaintiff may meet this
standard in any of three ways: (1) [the plaintiff] was threatened with application of the
statute; (2) application is likely; or (3) there is a credible threat of application.” Id. at
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1257–58 (citation and internal quotation marks omitted); see also Am. Charities for
Reasonable Fundraising Regulation, Inc. v. Pinellas Cnty., 221 F.3d 1211, 1214 (11th
Cir. 2000) (“‘When the plaintiff has alleged an intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution thereunder, he should not be required
to await and undergo a criminal prosecution as the sole means of seeking relief.’”
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979))).
As these authorities demonstrate, the injury requirement need not take the form of an
actual enforcement action.
As alleged in this case, Sheriff Olson has informed Mr. Roper that he must
register as a sex offender under ASORCNA. Mr. Roper has refused because he
believes that registering would violate his procedural due process rights. Based on Mr.
Roper’s refusal, Sheriff Olson has threatened to enforce ASORCNA’s penal provisions
against Mr. Roper for his failure to register. No contingency exists. If Mr. Roper
wants to live in Dale County, Alabama, he must register and provide designated
personal information to local law enforcement under ASORCNA, a law he contends
is unconstitutional as applied to him, or else face an arrest and criminal charges for his
failure to do so. The threat Mr. Roper faces is real, and it is credible. The fact that the
Dale County district attorney’s office has agreed to defer Mr. Roper’s prosecution for
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failure to register further confirms the threat’s credibility.3 These facts demonstrate
that Sheriff Olson threatened Mr. Roper with application of ASORCNA, that
ASORCNA’s application is likely, and that there exists credible threat of ASORCNA’s
application. Accordingly, Mr. Roper has alleged an injury sufficient to demonstrate
standing and a ripe claim.
Sheriff Olson nonetheless argues that Mr. Roper “has not applied for a state
court order” and, thus, it is “unknown how a state circuit court would rule on [his]
hypothetical petition.” (Doc. # 18, at 6.) Sheriff Olson does not provide a state-law
source of authority for obtaining a state court order. If his argument stems from ADPS
Rule 760-X-1-.21, Sheriff Olson’s argument may have some force with respect to the
notification requirement, but not the registration requirement. A Third Circuit decision
is illustrative. See Artway v. Attorney Gen. of State of New Jersey, 81 F.3d 1235, 1247
(3d Cir. 1987).
Artway analyzed the ripeness doctrine with respect to constitutional challenges
(including due process challenges) to New Jersey’s sex offender registration and
3

Notably, this is Mr. Roper’s second lawsuit challenging the constitutionality of his
registration under Alabama’s sex offender laws. Mr. Roper’s prior lawsuit raised a similar claim
under ASORCNA’s predecessor (the “Act”), but Judge Fuller found that the claim was not ripe
because state officials had not applied the Act to Mr. Roper: “Whether state officials w[ould]
ever attempt to seek Roper’s compliance with the requirements of the Act [was] a matter of pure
speculation.” Roper v. Campbell, No. 04cv1156, 2007 WL 604789, at *5 (M.D. Ala. Feb. 22,
2007). That speculative possibility now has ripened into a concrete reality.

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community notification law (“Megan’s Law”). There, a convicted sex offender had
not registered under Megan’s Law (and had moved out of state to avoid registering),
and sought an injunction against enforcement of the law’s registration and community
notification requirements. The Third Circuit held that the constitutional claims with
respect to the registration requirement were ripe because a credible threat existed that
the state would prosecute the sex offender if he moved back to New Jersey and failed
to register. Id. at 1248. But it found unripe the challenges to the notification
provisions because notification “involve[d] a crucial contingency.” Id. at 1248.
Depending upon how the state classified his sex offense, a determination not made
until after registration, the sex offender might not have to face notification; thus, there
was no hardship in denying review. Id.
Contrary to the registration requirement, Mr. Roper will not be subject to the
community notification requirement until after he registers and the ADPS makes a
preliminary determination that his out-of-state conviction qualifies as a sex offense
under ASORCNA, and the review procedures accompanying that preliminary
determination run their course resulting in no change in the preliminary determination.
Whether Mr. Roper ever will be subject to ASORCNA’s notification requirement may
well be speculative. However, because Mr. Roper does not challenge the notification
requirement, only the registration requirement, the court need definitively rule. In
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short, Sheriff Olson’s arguments do not foreclose review of the challenge to the
registration requirement on either ripeness or standing grounds.
C.

Rule 12(b)(6): Mr. Roper fails to state a procedural due process claim upon

which relief can be granted.
“A Section 1983 procedural due process claim requires a plaintiff to prove three
elements: (1) a deprivation of a constitutionally-protected liberty or property interest;
(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345
F.3d 1225, 1232 (11th Cir. 2003). At the motion-to-dismiss stage, “[a]lthough notice
pleading does not require a plaintiff to specifically plead every element of his cause
of action, a complaint must still contain enough information regarding the material
elements of a cause of action to support recovery under some viable legal theory.” Am.
Fed. of Labor & Congress of Indus. Organization v. City of Miami, 637 F.3d 1178,
1186 (11th Cir. 2011) (citation and internal quotation marks omitted).
Sheriff Olson contends that the Amended Complaint fails to allege
constitutionally inadequate process. For purposes of this analysis, therefore, the court
assumes without deciding that Mr. Roper’s registration under ASORCNA implicates
state action and that his registration would deprive him of a liberty interest. The only
issue for present purposes is whether there are allegations of a constitutionally
inadequate process.
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“In order to state a procedural due process claim under § 1983, the [plaintiff]
ha[s] to allege a constitutionally inadequate process.” Lord Abbett Mun. Income Fund,
Inc. v. Tyson, 671 F.3d 1203, 1207 (11th Cir. 2007). A complaint that “contains no
allegation of the process . . . due” cannot survive Rule 12(b)(6) review. Miccosukee
Tribe of Indians of Fla. v. United States, 716 F.3d 555, 559 (11th Cir. 2013) (citing
Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996), for the principle that “by failing
to allege inadequate process, appellant did not state a procedural due process claim”).
Mr. Roper alleges that “it would violate procedural due process under the
Fourteenth Amendment to force him to register under [ASORCNA] without strict
compliance with the statute.” (Am. Compl. 4.) But what does “strict compliance”
mean? Mr. Roper never says, so the answer is left to speculation. What Mr. Roper
seems to allege is that “strict compliance” means that correctly interpreted,
ASORCNA does not apply to him, and, thus, Sheriff Olson got the law wrong in
requiring Mr. Roper to register. But that contention misses the mark of what is
relevant to a procedural due process claim.
The decision of whether Mr. Roper’s 1991 Florida conviction falls within the
coverage of ASORCNA belongs to the State of Alabama, not to a federal court. The
federal court’s interest does not concern whether the decision was right or wrong, but
instead whether the state’s procedures employed to reach its decision comport with the
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Due Process Clause.4 See Doe v. Pryor, 61 F. Supp. 2d 1224, 1234 (M.D. Ala. 1999)
(“The issue of whether the plaintiff’s conduct falls within the coverage of the
comparable state child pornography law [under ASORCNA’s predecessor] is for the
State, not this federal court, to decide, but with adequate procedures to comply with
the due process clause.”).
Mr. Roper does not allege what procedures, if any, he was afforded prior to
Sheriff Olson requiring him to register. He does not identify, for example, who
determined that he had to register under ASORCNA, how that decision was made, or
what provision of ASORCNA purportedly justified that decision. Additionally, Mr.
Roper does not identify the procedures in place under ASORCNA or allege that those
procedures either are inadequate to constitute due process of law or were not followed
in his case.
Moreover, as already discussed, the State of Alabama has implemented postregistration (pre-notification) procedures that Mr. Roper may invoke to challenge
whether his conviction under Florida law constitutes a sex offense under ASORCNA.

4

When an individual undisputedly has a qualifying sex offense and inclusion on the sexoffender registry depends only upon the fact of conviction, no further process is due before
imposition of sex offender conditions. See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7–8
(2003). Here, Mr. Roper contends that his out-of-state conviction is not a qualifying sex offense
under Alabama law, and neither party has argued that Doe addressed this scenario.

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See ADPS Rule 760-X-1-.21. Those procedures allow for a preliminary determination
by ADPS, a hearing before an ALJ, and an appeal to the state circuit court. Mr. Roper
does not mention these procedures for challenging ASORCNA’s application or argue
that they are inadequate post-deprivation remedies. Mr. Roper simply does not
provide a hint as to what process he allegedly was due or was denied.
In sum, absent allegations of constitutionally inadequate procedures, Mr.
Roper’s procedural due process claim fails. Accordingly, his Fourteenth Amendment
due process claim is due to be dismissed for failure to state a claim upon which relief
can be granted.
IV. CONCLUSION
The Amended Complaint alleges an injury that satisfies the standing and
ripeness requirements for purposes of Article III’s case-or-controversy requirement.
However, the Amended Complaint fails to state a Fourteenth Amendment procedural
due process claim for which relief can be granted. Accordingly, it is ORDERED that
Sheriff Olson’s motion to dismiss (Doc. # 17) is GRANTED.
A separate judgment will be entered.
DONE this 26th day of August, 2013.

/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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