Caldwell v. Riley et al (INMATE 2)(CONSENT)

Filing 51

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/27/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PAUL D. CALDWELL, #261 005
Plaintiff,
v.

GOV. BOB RILEY, et al.,
Defendants.

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CIVIL ACTION NO.: 2:10-CV-784-WC
[WO]

MEMORANDUM OPINION
In this 42 U.S.C. § 1983 action, Plaintiff, a state inmate, alleges that rights, privileges,
or immunities afforded him under the Constitution or law of the United States have been
abridged by Defendants. The defendants are identified as former Governor Bob Riley,
former Attorney General Troy King, former Director of Public Safety – J. Christopher
Murphy, former Commissioner of the Alabama Department of Corrections – Richard Allen,
Director of Central Records – Kathy Holt, and Director of Classification – Carolyn Golson.
Plaintiff requests trial by jury, damages, declaratory relief, preliminary and permanent
injunctive relief, and costs.
Defendants filed an answer, special report, and relevant supporting evidentiary
materials addressing Plaintiff’s claims for relief.

The court informed Plaintiff that

Defendants’ special report may, at any time, be treated as a motion for summary judgment,
and the court explained to Plaintiff the proper manner in which to respond to a motion for

summary judgment. Plaintiff responded to the special report filed by Defendants. Thus, this
case is now pending on Defendants’ motion for summary judgment. Upon consideration of
the motion, the evidentiary materials filed in support thereof, and the Plaintiff’s opposition,
the court concludes that Defendants’ motion for summary judgment is due to be granted.

I. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute] as to any material fact and that the moving party is entitled to judgment as
a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir.
2007) (per curiam) (citation to former rule omitted); Fed. R. Civ. P. Rule 56(a) (“The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”).1 The party moving
for summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the [record, including pleadings,
discovery materials and affidavits], which it believes demonstrate the absence of a genuine

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Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and
deciding summary-judgment motions.” Fed. R. Civ. P. 56 Advisory Committee Notes. Under this revision,
“[s]ubdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c),
changing only one word – genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of
a summary-judgment determination.” Id. “‘Shall’ is also restored to express the direction to grant summary
judgment.” Id. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and,
therefore, all cases citing the prior versions of the rule remain equally applicable to the current rule.

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issue [- now dispute -] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant may meet this burden by presenting evidence indicating there is no dispute of
material fact or by showing that the nonmoving party has failed to present evidence in
support of some element of its case on which it bears the ultimate burden of proof. Id. at
322-24.
Defendants have met their evidentiary burden and demonstrated the absence of any
genuine dispute of material fact with respect to the claims properly before this court. Thus,
the burden shifts to Plaintiff to establish, with appropriate evidence beyond the pleadings,
that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(e)(3) (“If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion of
fact by [citing to materials in the record including affidavits, relevant documents or other
materials] the court may . . . grant summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the movant is entitled to it.”). A
genuine dispute of material fact exists when the nonmoving party produces evidence that
would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at
1263.
In civil actions filed by inmates, federal courts
must distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, our inferences must accord
deference to the views of prison authorities. Unless a prisoner can point to
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sufficient evidence regarding such issues of judgment to allow him to prevail
on the merits, he cannot prevail at the summary judgment stage.
Beard v. Banks, 548 U.S. 521, 530 (2006) (internal citation omitted). Consequently, to
survive Defendants’ properly supported motion for summary judgment, Plaintiff is required
to produce “sufficient [favorable] evidence” which would be admissible at trial supporting
his claim(s) for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Fed. R.
Civ. P. 56(e). “If the evidence [on which the nonmoving party relies] is merely colorable .
. . or is not significantly probative . . . summary judgment may be granted.” Id. at 249-50.
A plaintiff’s conclusory allegations do not provide sufficient evidence to oppose a
motion for summary judgment. Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995); Fullman v.
Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Consequently, when a party fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial, summary judgment is due to be
granted in favor of the moving party. Celotex Corp., 477 U.S. at 322; Barnes v. Southwest
Forest Indus., Inc., 814 F.2d 607 (11th Cir. 1987). Where all the materials before the court
indicate that there is no genuine dispute of material fact and that the party moving for
summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex
Corp., 477 U.S. at 322; Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987).
Although factual inferences must be viewed in a light most favorable to the nonmoving party, and pro se complaints are entitled to liberal interpretation by the courts, a pro

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se litigant does not escape the burden of establishing a genuine dispute of material fact.
Beard, 548 U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus,
Plaintiff’s pro se status alone does not mandate this court’s disregard of elementary
principles of production and proof in a civil case. In this case, Plaintiff fails to demonstrate
a requisite genuine dispute of material fact in order to preclude summary judgment.
Matsushita, supra.

II. BACKGROUND
Plaintiff is currently incarcerated at the Elmore Correctional Facility in Elmore,
Alabama. The evidentiary material before the court shows that he is serving a 78 months
sentence following his 2008 conviction for first degree sexual abuse in the Circuit Court for
Russell County, Alabama. Plaintiff’s projected release date is February 10, 2015. Doc. No.
23, Ex. D.
In the present action, Plaintiff alleges that the Alabama Community Notification Act
[“the Act” or “ACNA”], Ala. Code 1975 § 15-20-1 et seq. (1975, as amended), is
unconstitutional as applied to him. He makes a variety of allegations claiming abuse,
harassment, discrimination, and general hardship based on application to him of the ACNA.
Plaintiff also asserts several federal causes of action as follows: 1) Defendants’ enactment,
application, and enforcement of the ACNA violates his substantive rights, privileges and
immunities protected by the Constitution; 2) Defendants’ enactment, application, and
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enforcement of the ACNA violates the Civil Rights of Institutionalized Persons Act
[CRIPA], 42 U.S.C. § 1997, et seq.; 3) Defendants’ enactment, application, and enforcement
of the ACNA violates the Religious Land Use and Institutionalized Persons Act [RLUIPA],
42 U.S.C. § 2000cc(1)(a), et seq.; 4) Defendants’ enactment, application, and enforcement
of the ACNA violates the Americans with Disabilities Act [ ADA], 42 U.S.C. § 12101, et
seq.; and 5) Defendants’ enactment, application, and enforcement of the ACNA violates the
Alabama Religious Freedom Amendment [ARFA], under art. I, § 3.01 of the Alabama
Constitution. Doc. No. 1. In an amendment to the complaint, Plaintiff complains that the
State of Alabama does not provide a classification system for sex offenders on its public
registry which would allow them to be grouped according to an individual assessment of
dangerousness and risk of re-offending. Doc. No. 8.

III. DISCUSSION
A. The ACNA Claims
The Alabama Community Notification Act became effective in 1996. On July 1,
2011, the Act was repealed by the Alabama Sex Offender Registration and Community
Notification Act, Alabama Act No. 2011–640, § 49, Ala. Code § 15–20A–1, et seq.,
[“ASORCNA”]. ASORCNA now governs the legal registration and community notification
requirements applicable to adult sex offenders as defined in § 15-20A-4(1) and is “applicable
to every adult sex offender convicted of a sex offense as defined in Section 15-20A-5,
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without regard to when his or her crime or crimes were committed or his or her duty to
register arose.” Ala. Code § 15-20A-3. Plaintiff’s first degree sexual abuse conviction
subjects him to the provisions of ASORCNA upon his release from incarceration.
Because the ACNA was repealed by the Alabama Sex Offender Registration and
Community Notification Act. Ala. Code § 15–20A–1, et seq., the court must decide whether
repeal of the ACNA renders Plaintiff’s challenges to the statute moot. If repeal of the ACNA
has rendered Plaintiff’s challenges thereto moot, then such claims must be dismissed for lack
of jurisdiction.
As explained, Plaintiff is currently imprisoned on his 2008 conviction for first degree
sexual abuse. Any past or current challenges Plaintiff seeks to make regarding the validity
of the ACNA and its applicability to his sexual abuse conviction and/or the Act’s potential
future application to him or enforcement against him are now moot due to repeal of the
statute.
Article III of the United States Constitution confers jurisdiction on the district courts
to hear and determine “cases” or “controversies.” U.S. Const. Art. III, 2. Federal courts are
not permitted to rule upon questions which are hypothetical in nature or which do not affect
the rights of the parties in the case before the court. Lewis v. Cont’l Bank Corp., 494 US.
472, 477 (1990). This is because courts do not sit to render advisory opinions. North
Carolina v. Rice, 404 U. S. 244, 246 (1971). An actual controversy must exist at all times
when the case is pending. Steffel v. Thompson, 415 U. S. 452, 459 n.10 (1974).
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A claim becomes moot when the controversy between the parties is no longer alive
because one party has no further concern in the outcome. Weinstein v. Bradford, 423 U.S.
147 (1975); Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Where the question sought to be
adjudicated has been mooted by developments subsequent to filing of the complaint, no
justiciable controversy is presented.”). “Article III requires that a plaintiff’s claim be live not
just when he first brings suit, but throughout the litigation.” Tucker v. Phyfer, 819 F.2d 1030,
1034 (11th Cir. 1987). Because mootness is jurisdictional, dismissal is required when an
action is moot, as a decision in a moot action would be an impermissible advisory opinion.
Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001).
In Saladin v. Milledgeville, 812 F.2d 687, 693 (11th Cir. 1987), the Eleventh Circuit
Court of Appeals determined:
A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the litigation, such as
where there is no reasonable expectation that the violation will occur again or
where interim relief or events have eradicated the effects of the alleged
violation.
(citations omitted).
“Generally, a challenge to the constitutionality of a statute is mooted by repeal of the
statute.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1329 (11th Cir.
2004); Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (“the repeal
or amendment of an allegedly unconstitutional statute moots legal challenges to the
legitimacy of the repealed legislation.”); Kremens v. Bartley, 431 U.S. 119, 128-29 (1977)
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(holding moot a constitutional challenge to a state statute governing the involuntary
commitment of mentally ill minors, because the law had been replaced with a different
statute). Here, repeal of the ACNA has rendered Plaintiff’s requests for injunctive and
declaratory relief in relation thereto moot and deprives the court of jurisdiction.
The repeal of a challenged law does not necessarily moot a claim for damages by a
plaintiff alleging a past violation of his rights. Outdoor Media Group, Inc., v. City of
Beaumont, 506 F.3d 895, 902 (9th Cir. 2007). In this regard, however, the court must first
consider whether Plaintiff suffered any injury with respect to his challenges concerning
application to him of the ACNA as presented in the complaint. Artway v. Att’y Gen. of State
of N.J., 81 F.3d 1235, 1246 (3d Cir. 1996). The mere speculative threat of injury is
insufficient for Article III purposes. See Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979).
Here, the record before the court fails to demonstrate that the provisions of the ACNA
were ever applied to Plaintiff. Plaintiff appears to base his claim for damages on the
potential threat of application of various provisions of the now-repealed statute. Plaintiff
may not, however, bring a prospective damage claims under § 1983. See Tanner Adver.
Group v. Fayette Cnty., 451 F.3d 777, 786 (11th Cir. 2006). As explained, damages are
reserved for constitutional deprivations that have occurred, not those that are merely
speculative. Id. Accordingly, because there is no present case or controversy to support the
court’s jurisdiction over Plaintiff’s challenges to application of various provisions of the
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ACNA to him, such claims are due to be dismissed for lack of jurisdiction.

B. The Remaining Federal Causes of Action

I. Official Capacity
To the extent Plaintiff seeks to sue Defendants in their official capacities, the
defendants, as state officials, are absolutely immune from suit for damages. See Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) (state officials sued in their official
capacities are protected from suit for damages under the Eleventh Amendment). “A state,
a state agency, and a state official sued in his official capacity are not ‘persons’ within the
meaning of § 1983, thus damages are unavailable.” Edwards v. Wallace Cmty. Coll., 49 F.3d
1517, 1524 (11th Cir. 1995).

ii. Individual Capacity
Plaintiff maintains that by enacting, applying and enforcing the ACNA Defendants
willfully subjected him and/or conspired to subject him to alleged violations of his
substantive rights, privileges and immunities protected by the Constitution, including various
rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments, as well
rights protected under Art. 1, § 9, the Constitutional Rights of Incarcerated Persons Act
[“CRIPA”], 42 U.S.C. § 1997, et seq., the Religious Land Use and Institutionalized Persons
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Act of 2000 [“RLUIPA”], 42 U.S.C. § 2000cc(1)(a), et seq., the Americans with Disabilities
Act [“ADA”], 42 U.S.C. § 12101, et seq., and the Alabama Religious Freedom Amendment
[“ARFA”], Art. I, § 3.01 of the Alabama Constitution. To the extent these allegations are
not subject to dismissal for the reasons explained, infra, and to the extent Plaintiff may bring
a cause of action under the amendments and/or Acts delineated above, his contentions are
merely broad assertions of constitutional violations without any facts to support his
asseverations that Defendants violated or conspired to violate his rights under the
Constitution and stated statutory provisions through enactment, application and/or
enforcement of the ACNA.2 See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.
1984) (holding that a conspiracy allegation that is vague and conclusory fails to state a claim
upon which relief can be granted and is subject to dismissal). That is, Plaintiff’s complaint
fails to identify any specific facts that allow the court to make a plausible inference that any
of the conduct or actions he attributes to the named defendants amounted to a violation of
his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that

2

With respect to Plaintiff’s challenge to Defendants “enactment” of the ACNA, none of the named
Defendants are or were responsible for enacting state laws. Even if Plaintiff had named a proper defendant,
the Supreme Court has “recognized that state legislators enjoy common-law immunity from liability for their
legislative acts” and that this immunity can shield officials against suits brought under 42 U.S.C. § 1983
seeking damages, declaratory relief, or injunctive relief. Supreme Court of Va. v. Consumers Union of the
U.S., Inc., 446 U.S. 719, 732 (1980) (citing Tenney v. Brandhove, 341 U.S. 367 (1951)); see also Yeldell v.
Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir. 1992) (legislative immunity applies to “those acts
which are ‘necessary to preserve the integrity of the legislative process.’” quoting United States v. Brewster,
408 U.S. 501, 517 (1972))). In Scott v. Taylor, 405 F.3d 1251, 1257 (11th Cir. 2005), the Eleventh Circuit
concluded that state legislators who act in their legislative capacities are entitled to absolute legislative
immunity whether a suit seeks damages or prospective relief and regardless of whether the state legislators
are named in their individual or official capacity.

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a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”); see also Marsh v. Butler Cnty., 268 F.3d 1014, 1036
n.16 (11th Cir. 2001) (“[U]nsupported conclusions of law or of mixed fact and law have long
been recognized not to prevent a Rule 12(b)(6) dismissal.”). “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp., v. Twombly, 550 U.S. 555,
556 (2007)). Plaintiff cannot rely on subjective suspicions and unsupported speculation but
must provide sufficient facts to show how the conduct or actions of a defendant amounted
to a violation of his constitutional rights. Id. Further, “[b]ecause vicarious liability is
inapplicable to . . . [section] 1983 suits, a plaintiff must plead that each Government official
defendant, through the official’s own individual actions, has violated the Constitution.” Id.
at 1948 (emphasis added). The plaintiff must plead that a defendant acted with “purpose
rather than knowledge” to satisfy this standard. Id. at 1949.
Here, Plaintiff fails to specify the injury or harm caused by any of Defendants’
allegedly unconstitutional conduct and only conclusorily asserts that the “laws have already
caused him harm.” See Doc. No. 1, Caldwell Aff. at 2. This shortcoming, coupled with
Plaintiff’s broad and unsubstantiated allegations of constitutional violations against the
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named defendants without any factual development to support his claims against them, is
insufficient to defeat their motion for summary judgment. The court, therefore, concludes
that Defendants’ dispositive motion shall be granted with respect to the allegations set forth
above to the extent they are not otherwise subject to dismissal for lack of jurisdiction.3
Celotex, 477 U.S. at 324; Harris, 65 F.3d at 916.

C. The Equal Protection Claim
Plaintiff complains that he has been denied equal protection of the law because he has
been denied good time. He claims that other inmates convicted of a Class B felony whose
convictions do not entail a sexual offense against a child and who received a sentence of less
than fifteen years would receive good time. Doc. No. 1, Caldwell Aff. at 7.
The Alabama legislature enacted the ACITA in May of 1980, Act. No. 80-446, 1980
Ala. Acts 690, codified as § 14-9-40 through § 14-9-44, and, with such Act, repealed all prior
good time statutes. Thus, at the time of Plaintiff’s offense, the ACITA governed incentive
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The court notes that Plaintiff asserts Defendants conspired to violate his rights under 42 U.S.C. §
1985, as well as under 42 U.S.C. § 1983. Under § 1985, Plaintiff must establish (a) the existence of a
conspiracy; (b) that Defendants intended to deny Plaintiff of his equal protection of laws, or equal privileges
and immunities under the laws; (c) injury or deprivation of a federally-protected right; (d) an overt act in
furtherance of the object of the conspiracy; and (e) some racial or otherwise class-based invidiously
discriminatory animus behind the conspirator’s action. See Arnold v. Bd. of Educ. of Escambia Cnty.,
Alabama, 880 F.2d 305, 317-18 (11th Cir. 1989), overruled on other grounds by Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). As the court has already determined,
Plaintiff’s allegations of a conspiracy between Defendants are conclusory, vague, and general which is
insufficient. Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990); Fullman, 739 F.2d at 556-57.
Additionally, Plaintiff has not alleged that Defendants’ conduct was motivated by race or any other classbased invidiously discriminatory animus. Consequently, Plaintiff fails to state a claim for relief under §
1985.

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time deductions potentially available to convicted inmates.
Pertinent to Plaintiff’s claim is that under Ala. Code § 14-9-41(e), “[n]o person may
receive the benefits of correctional incentive time if he or she has been convicted of a
criminal sex offense involving a child as defined in Section 15–20–21(5)[repealed: see now
§§ 15–20A–4 and 15–20A–48].” The definition of “child” applicable to this provision
defines the term as “a person who has not attained the age of 12.” Ala. Code § 15–20A4(2).
The undisputed evidence before the court shows that Plaintiff’s conviction for sexual abuse
involved a child under the age of 12 years, which is corroborated by the transcript of
conviction submitted by Deborah Martin, a classification specialist at Elmore Correctional
Facility. See Doc. No. 23, Ex. D. The clear language of the statute contained in Ala. Code
§ 14–9–41(e), the restriction prohibiting the earning of good time by prisoners convicted of
a sex offense involving a “child,” applies to all classes of inmates and does not depend upon
an inmate’s classification. In D.L.S. v. State, 675 So.2d 1363, 1364 n.1 (Ala. Crim. App.
1995), the Alabama Court of Criminal Appeals noted that subsection (e) is based upon “a
rational basis for treating prisoners differently based upon the nature of their crimes and the
age of their victims.”
“Despite the tendency of all rights ‘to declare themselves absolute to their logical
extreme,’ there are obviously limits beyond which the equal protection analysis may not be
pressed . . . . The Fourteenth Amendment ‘does not require absolute equality or precisely
equal advantages,’. . . nor does it require the State to ‘equalize [treatment among prisoners].’”
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Ross v. Moffitt, 417 U.S. 600, 611-12 (1974); Hammond v. Auburn Univ., 669 F. Supp. 1555,
1563 (M.D. Ala. 1987) (“The Equal Protection Clause of the Fourteenth Amendment does
not require all persons to be treated either identically or equally.”). To establish a claim
cognizable under the Equal Protection Clause, “a prisoner must [at a minimum] demonstrate
that (1) he is similarly situated to other prisoners who received more favorable treatment; and
(2) the state engaged in invidious discrimination against him based on race, religion, national
origin, or some other constitutionally protected basis. Jones v. Ray, 279 F.3d 944, 946-47
(11th Cir. 2001); Damiano v. Florida Parole and Prob. Comm’n, 785 F.2d 929, 932-33 (11th
Cir. 1986).” Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006).
“[O]fficial action will not be held unconstitutional solely because it results in a . . .
disproportionate impact . . . . Proof of . . . discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 264-65 (1977). “‘Discriminatory purpose’ . . . implies more than
intent as volition or intent as awareness of consequences. It implies that the decision maker
. . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Massachusetts v. Feeney,
442 U.S. 256, 279 (1979) (footnote and citation omitted); see also Hernandez v. New York,
500 U.S. 352, 359 (1991). Evidence which merely indicates disparity of treatment or even
arbitrary administration of state powers, rather than instances of purposeful or invidious
discrimination, is insufficient to show discriminatory intent. McKleskey v. Kemp, 481 U.S.
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279, 292 (1987).
Since this case is before the court on a properly supported motion for summary
judgment submitted by Defendants, Plaintiff bears the burden of producing evidence which
would be admissible at trial sufficient to show: (I) Defendants provided more favorable
treatment to other similarly situated inmates, i.e., awarded good time to inmates convicted
of criminal sex offenses against a child; and (ii) the decision to deny him favorable treatment
resulted from intentional discrimination. Celotex, 477 U.S. at 322-24; Anderson, 477 U.S.
at 249 (To preclude summary judgment, plaintiff must present significant probative evidence
showing defendants provided more favorable treatment to similarly situated persons and did
so as the result of intentional discrimination.); E & T Realty Co. v. Strickland, 830 F.2d 1107,
1114 (11th Cir. 1987), cert. denied, 485 U.S. 961 (1988) (Intentional discrimination on the
part of the defendants in providing the challenged disparate treatment is required. “Mere
error or mistake in judgment” or “[e]ven arbitrary administration of a statute, without
purposeful discrimination, does not violate the equal protection clause.”). Plaintiff fails to
identify any other inmate with a similar sex offense involving a child towards whom
Defendants acted in a more favorable manner and, thus, his “equal protection claim
necessarily fails first because he has not shown that he was treated differently from other,
similarly situated prisoners.” Sweet, 467 F.3d at 1319; Hammond, 669 F. Supp. at 1563
(emphasis in original) (“To the extent that any equal protection analysis is required [on the
plaintiff’s assertion of discrimination], absent the plaintiff’s establishing a clearly protected
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liberty or property interest by the Constitution . . . , this Court [must] look to see if persons
similarly situated to the plaintiff have been treated differently. . . . [T]here is no evidence
that any [individuals] in the same position as the plaintiff have been treated differently from
the plaintiff . . . . The plaintiff has offered the Court nothing on which to base his equal
protection claim. Accordingly, it is the opinion of this Court that the plaintiff’s equal
protection claim is without merit.”); Cf. Hendking v. Smith, 781 F.2d 850, 851-52 (11th Cir.
1986) (states may properly categorize prisoners according to the type of offense they
committed; it is the nature and circumstances of a crime, not simply the type or nomenclature
of the conviction, which legitimately may be used by prison authorities to determine the
custody classification of prisoners). The Alabama Department of Corrections is correctly
computing Plaintiff’s sentence by applying the statutory prohibition against the credit of good
time to those inmates convicted of sexual offenses against a child. Plaintiff has not otherwise
shown that he has been subjected to any disparate treatment in this regard. Because Plaintiff
fails to assert a viable equal protection claim, Defendants are entitled to summary judgment
on this claim.

D. The Sex Offender Registry Classification Claim
In an amendment to the complaint, Plaintiff alleges that Defendants should institute
a tiered classification system based on a convicted sex offender’s individual dangerousness.
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Plaintiff argues that the failure of the State of Alabama to have such a classification system
on its website registry of sex offenders violates his constitutional rights. That is, Plaintiff
maintains that without providing information on the registry of sex offenders as to a
registrant’s dangerousness, those presumably not dangerous must endure the stigma of the
general public erroneously thinking otherwise. Doc. No. 8.
In Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003), the Court addressed
a Fourteenth Amendment Due Process challenge to Connecticut’s sex offender registration
and notification law on grounds that it did not provide registrants a pre-deprivation hearing
to determine whether they were currently dangerous. Reasoning that “due process does not
require the opportunity to prove a fact that is not material to the State’s statutory scheme,”
Id. at 4, and that Connecticut’s registration requirement was “based on the fact of previous
conviction, not the fact of current dangerousness,” the Supreme Court found that “due
process does not entitle [a defendant] to a hearing. . . .” Id. at 4, 7.
Here, Plaintiff’s contention that he has a constitutional right not to be stigmatized due
to omission of a registrant’s dangerousness on Alabama’s sex offender registry and website
listings entitles him to no relief. Although Plaintiff does not assert violation of a specific
federal constitutional right with regard to this claim, the court understands him as implicating
the Fourteenth Amendment Due Process Clause. The law is well-settled, however, that
damage to reputation alone does not implicate a protected liberty or property interest. See
Paul v. Davis, 424 U.S. 693, 701 (1976). In order for a defamation claim to be viable under
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§ 1983, Plaintiff must show that the “governmental action taken . . . deprived [him] of a right
previously held under state law.” Id. at 708. That is, in addition to showing reputational
harm, Plaintiff must also show an alteration or extinguishment of an interest protected by the
Constitution or state law. Id. at 708-09. This is known as the “stigma-plus” test. Id. at 711.
The Doe Court applied the “stigma-plus” test in context of the challenge to
Connecticut’s sex offender registry law. As noted, the Court determined that because the
basis of Connecticut’s registration requirement is the fact of conviction alone, dangerousness
and the opportunity to be heard on the issue of dangerousness are simply not material issues.
See Doe, at 7-8. Alabama’s current sex offender website registry is based upon the fact of
an offender’s conviction. There is no indicator or statement regarding the dangerousness of
the persons listed on the registry. See Alabama Department of Public Safety Community
Information Center, available at http://dps.alabama.gov. See Ala. Code § 15-20A-8.4
Further, there is no indicator on the website that the State has made an individual
determination regarding a registrant’s dangerousness and cautions persons viewing the site
that “the information contained on th[e] site may not reflect the current residence, status, or
other information regarding the offender.” See id. Thus, similar to the Connecticut Dep’t
of Pub. Safety v. Doe Court, the State “has decided that the registry of information of all sex
offenders – currently dangerous or not – must be publicly disclosed” and “states are not

4

Ala. Code § 15-20A-8 concerns registration information for the public registry website and
delineates the information which is to be provided thereon.

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barred by principles of ‘procedural due process’ from drawing such classifications.” Id. 538
U.S. at 11 (emphasis in original). Based on the foregoing, Defendants are entitled to
summary judgment on Plaintiff’s sex offender registry classification claim.

E. The Exercise of Supplemental Jurisdiction
Plaintiff seeks to invoke the supplemental jurisdiction of this court with respect to his
claims arising under state law. In the posture of this case, however, the exercise of such
jurisdiction is inappropriate.
For a federal court “[t]o exercise [supplemental] jurisdiction over state law claims not
otherwise cognizable in federal court, ‘the court must have jurisdiction over a substantial
federal claim and the federal and state claims must derive from a “common nucleus of
operative fact.”’” L.A. Draper & Son v. Wheelabrator Frye, Inc., 735 F.2d 414, 427 (11th
Cir. 1984). The exercise of supplemental jurisdiction is discretionary. United Mine Workers
v. Gibbs, 383 U.S. 715 (1966). “If the federal claims are dismissed prior to trial, Gibbs
strongly encourages or even requires dismissal of the state claims.” L.A. Draper & Son, 735
F.2d at 428. In view of this court’s resolution of the federal claims presented in the
complaint, Plaintiff’s supplemental state law claims are due to be dismissed. Gibbs, 383 U.S.
at 726 (if the federal claims are dismissed prior to trial, the state claims should be dismissed
as well); see also Ray v. Tennessee Valley Auth., 677 F.2d 818 (11th Cir. 1982).
20

A separate Order follows.
Done this 27th day of February, 2013.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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