Ledlow v. State of Alabama et al (INMATE2)

Filing 24

ORDER overruling Ledlow's 22 Objection; adopting 21 Report and Recommendations; dismissing this case without prejudice; that Ledlow may bring these unripe claims when they are ripe for review. Signed by Honorable William Keith Watkins on 8/14/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R O D N E Y LEDLOW, P la in tif f , v. S T A T E OF ALABAMA, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-CV-269-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h e Magistrate Judge filed a recommendation in this case on May 7, 2009, that D e f e n d a n t Attorney General Troy King's Report (Doc. # 14), construed as a motion for s u m m a ry judgment, be granted, and that Plaintiff Rodney Ledlow's claims be dismissed w ith o u t prejudice.1 (Recommendation 8 (Doc. # 21).) Ledlow filed an objection to the re c o m m e n d a tio n . (Doc. # 22.) The portions of the recommendation to which a party objects a re reviewed de novo. 28 U.S.C. § 636(b)(1). The Magistrate Judge found that Ledlow's challenges to the registration and n o tif ic a ti o n provisions of the Alabama Community Notification Statute (the "Act"), Ala. C o d e § 15-20-20 - § 15-20-28, are not ripe for review. (Recommendation 7.) Ledlow alleges th a t the Act is unconstitutional as applied to him for imposing an unconstitutional p u n is h m e n t under the Ex Post Facto and Double Jeopardy Clauses, and for infringing his

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The Attorney General is the only Defendant remaining in this case.

right to due process.2 (Compl. 5 (Doc. # 1).) His requested relief includes an order releasing h im from the notification requirement, and injunctive relief to enjoin any stigma to his name a n d character resulting from registering. (Compl. 6.) He objects generally to the

re c o m m e n d a tio n that the case be dismissed, and alternatively requests an abeyance until sixty d a ys before the end of his sentence.3 (Objection ¶¶ 1-2.) T h e recommendation is due to be adopted with this one clarification. The

re c o m m e n d a tio n relies on Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999) (per curiam). In Kirby, the Eleventh Circuit affirmed the district court's finding that a plaintiff's c o n s titu tio n a l challenges to the notification provisions of the Act were not ripe because they w o u ld not affect him until his release from prison years later. Id. at 1289. The court re a so n e d : [ T h e plaintiff's] challenge to the notification provision of the Act c a n n o t meet [the hardship] element of the ripeness requirement. For the n o tif ic a tio n provision to affect [the plaintiff], there exists a `crucial c o n t in g e n c y,' [Artway v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1248 (3 d Cir. 1996)], in that the Act must remain in effect and unamended until 30 d a ys prior to [the plaintiff's] release from prison in the year 2005. Whether th is contingency will occur is a matter of speculation. The Court may not pass u p o n hypothetical matters. Moreover, [the plaintiff] faces no hardship from d e n yin g review of his notification challenge at this point; he is not going a n yw h e re and his prior arrest and conviction record is not going to change. Accordingly, we affirm the district court's dismissal of [the] claim on ripeness g ro u n d s.

These constitutional challenges are the only ones alleged in Ledlow's Complaint. Arguments made later with respect to unraised claims will not be considered.
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The Magistrate Judge denied Ledlow's request to place the action in abeyance. (Doc. # 23.)

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Id. at 1290. The same analysis applies to the challenges in this case to the Act's notification p ro v is io n s . Ledlow's scheduled release for his sentence for first-degree rape is September 1 8 , 2010. (Doc. # 14-3.) As the recommendation found, Kirby therefore forecloses c h a lle n g e s to the notification provisions of the Act at this time. As the court in Kirby also noted, however, the plaintiff's challenges were only to the n o tif ic a tio n , not the registration, provisions of the Act. 195 F.3d at 1289 n.3. And the case K ir b y relied upon in its ripeness analysis, Artway, 81 F.3d 1235, distinguished between c h a lle n g e s to notification provisions, which the court found were unripe, and challenges to re g is tra tio n provisions, which the court found were ripe. The registration law at issue in A r t w a y required persons who, after enactment of the law, completed sentences for certain c rim e s involving sexual assault to register with local law enforcement. Id. at 1243-44. The distinction between the notification and the registration provisions was critical to Artway's ripeness analysis. Challenges to the notification provisions were not ripe b e c a u s e of the "crucial contingency" that to be subject to their requirements, a convicted sex o f f e n d e r had to be classified as moderate or high-risk, a finding that depended on later d e te rm in a tio n s made by the state prosecutor. Id. at 1248. The court held that the registration p ro v is io n s , however, presented no similar contingency because an offender who will reside in a state must provide information to law enforcement, and, in the court's opinion, given the h ig h profile nature of the law and case, enforcement was likely. Id. The court also found the

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registration challenges satisfied the other prong of the ripeness analysis, fitness for review. Id. at 1249-50. Kirby quoted Artway's "crucial contingency" language, but the contingency in Kirby w a s not about the substance of the law, as it was in Artway. See Kirby, 195 F.3d at 1290. The "crucial contingency" in Kirby was the fact that the Act "must remain in effect and u n a m e n d e d until 30 days4 prior to [the defendant']s release from prison," and whether that c o n tin g e n c y would occur was "a matter of speculation." Id. Thus, although Kirby does not a d d re s s the Act's registration provisions, Kirby's justification for finding the notification p ro v is io n s unripe counsels dismissing challenges to the registration provisions on the same g ro u n d . T h e Eleventh Circuit's later opinion in United States v. Veal, 322 F.3d 1275 (11th Cir. 2 0 0 3 ) (per curiam), cited by the recommendation in support of its finding (Recommendation 8 ), supports interpreting Kirby to apply to the Act's registration provisions as well. The d e f e n d a n t in Veal had challenged the constitutionality of Florida's sexual offender re g is tra tio n statutes. The court did not explicitly distinguish between the notification and re g is tra tio n provisions, but held generally that "whether Florida's sexual offender registration s ta tu te s will remain in effect in their current form throughout [the defendant's] incarceration is a matter of speculation" and found the claim to be unripe for review. Id. at 1278-79.

This time period has since been changed but is still considerably less than a year. See § 15-2022 (as amended in 2009).

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Likewise, because Ledlow is not scheduled for release for at least one more year, w h e th e r the registration provisions, like the notification provisions, will remain unchanged i n tro d u c e s a crucial contingency that renders his challenges to the provisions not ripe for re v ie w . A c c o rd in g ly, it is ORDERED that: (1 ) (2 ) L e d lo w 's objection (Doc. # 22) is OVERRULED; and T h e recommendation (Doc. # 21) is ADOPTED, and the case is DISMISSED

w ith o u t prejudice. Ledlow may bring these claims when they are ripe for review. DONE this 14th day of August, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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