Ellis v. King et al

Filing 7

REPORT AND RECOMMENDATIONS that Plaintiff's 1 Motion for Preliminary Injunction be DENIED; Objections to R&R due by 8/12/2009. Signed by Honorable Wallace Capel, Jr on 7/30/2009. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION Z A C H A R Y JEROME ELLIS, ) ) P la in tif f , ) ) v. ) ) T R O Y KING, in his official capacity as ) A tto rn e y General of the State of ) A la b a m a , et al., ) ) D e f e n d a n ts . )

CASE NO. 2:09-CV-703-WKW

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE
P en d in g before the Court is Plaintiff's Motion for Preliminary Injunction (Doc. #1). O n 28 July 2009, this case was referred to the undersigned magistrate judge "for further p ro c e ed in g s and a recommendation as may be appropriate, including further proceedings and a recommendation on Mr. Ellis's motion for preliminary injunction." (Doc. #5). The Court h a s reviewed Plaintiff's Motion for Preliminary Injunction (Doc. #1) and recommends that th e motion be DENIED. I. BACKGROUND P la in tif f brings this action pursuant to 42 U. S. C. A. § 1983 challenging the c o n stitu tionality of the Alabama Community Notification Act ("CNA"), Alabama Code 1975 § 15-20-20 through § 15-20-26. Plaintiff is currently an inmate at "Staton Correctional F ac ility in Elmore County, Alabama with an expected release date of August 14, 2009[,] . . . was convicted in Montgomery County Circuit Court for Sodomy 1st degree[,] . . .

s e n te n c ed to a fifteen (15) year term of incarceration[,] . . . granted parole in August 1998, [ a n d had his parole] revoked on or about July 2003." (Doc. #1 at 2). Plaintiff claims his Due Process rights will be violated because once he is released, D e f e n d a n ts will subject him to the requirements of the CNA, which will "subject[] him to p u b lic opprobrium and damage to his reputation without an opportunity to be heard." Id. at 2 . Plaintiff "alleges that the Defendants will apply the provisions of the CNA to him for L IF E without having an opportunity to [be] heard on the false implication and allegation that h e is a danger to the public and will likely re-offend." Id. Plaintiff also states that as a result o f the "extremely burdensome and excessive" registration requirements of the CNA, he will b e deprived of his rights to "take advantage of housing and employment opportunities well b e yo n d those expressly forbidden" and his "legitimate privacy interest in his home address." Id . at 3. P la in tif f makes an Equal Protection claim based on his allegation "that juvenile sex o f f en d e rs are given individual risks [sic] assessments prior to release to determine danger and re c id iv is m before being subject to the Public Notification provisions of the CNA and an [sic] a d u lt sex offenders are not given individual risk assessments prior to release before being s u b je c t to the CNA Public Notification, Residency and Work restrictions for LIFE." Id. at 4. Finally, Plaintiff make an "Ex Post Facto and Bill of Attainder claim" based on his a lle g a tio n that "[t]he CNA legislatively determines that [he] is guilty of being a repeat

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o f f en d e r and a danger to his community because of his conviction in 1993 and has subjected h im to the excessive provisions of the CNA without any judicial action," and the fact that " [ t]h e CNA increases the penalty of already existing law of Ala. Code (1975) § 13-11-200 w h ich [he] was required to register under because of the date of his conviction being in 1 9 9 3 ." Id. at 4-5. Plaintiff alleges that although he is due to be released on 14 August 2009, " D e f e n d a n ts (and/or their agents) have determined that [his] address [in Montgomery] is in v i o la tio n of the CNA and the Defendants (and/or their agents) have denied [Plaintiff's] a lte rn a te address and are planning to incarcerate [him] in the Montgomery County jail on A u g u s t 14, 2009 because he does not have an address that they say will not be in violation o f the CNA." Id. at 5. Accordingly, Plaintiff request this Court issue a "preliminary in ju n c tio n enjoining the Defendants from enforcing the CNA on him and from placing him in custody of the Montgomery County Sheriff or in the custody of any other Sheriff, until this m a tte r if fully heard in open court." Id. at 6. II. D IS C U S S IO N "A district court may grant [preliminary] injunctive relief only if the moving party sh o w s that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury w ill be suffered unless the injunction issues; (3) the threatened injury to the movant o u tw e ig h s whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." American Civil

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L i b er tie s Union of Fl., Inc. v. Miami-Dade County School Bd., 557 F.3d 1177, 1198 (11th C ir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)). "A preliminary in ju n c tio n is an extraordinary and drastic remedy not to be granted unless the movant clearly e sta b lis h e s the burden of persuasion as to the four requisites." Id. (quoting All Care Nursing S e rv ., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). In denying Plaintiff's Motion for Temporary Restraining Order (TRO), the District J u d g e found that Plaintiff had not "carried his burden of demonstrating, among other things, a substantial likelihood of success on the merits." (Doc. #5 at 1). The standards for granting r e l i e f on a TRO and a Preliminary Injunction are the same. See Parker v. State Bd. of P a r d o n s and Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) ("A TRO or preliminary in ju n c tio n is appropriate where the movant demonstrates that: (a) there is a substantial lik e lih o o d of success on the merits;"). Thus, there has already been a determination in this c a se that Plaintiff has failed to carry his burden of demonstrating a substantial likelihood of su c c e ss on the merits. The undersigned, after having reviewed Plaintiff's claims agrees with th e District Court's determination. Because "[f]ailure to show any of the four factors is fatal, and the most common f a ilu re is not showing a substantial likelihood of success on the merits," American Civil L ib e r tie s Union of Fl., Inc., 557 F.3d at 1198, Plaintiff's Motion for Preliminary Injunction is due to be denied. Further, this Court notes that challenges to states' sex offender reg istratio n acts on these same grounds have been largely unsuccessful. See e.g., Smith v.

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D o e , 538 U.S. 84 (2003). III. C O N C L U SIO N A c c o rd in g ly, for the reasons discussed above, it is the RECOMMENDATION of the M a g is tra te Judge that Plaintiff's Motion for Preliminary Injunction (Doc. #1) be DENIED. It is further ORDERED that Plaintiff is DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before August 12, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ).

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D O N E this 30th day of July, 2009. /s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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