Doe 1 et al v. Strange et al(JOINT ASSIGN)

Filing 137

MEMORANDUM OPINION AND ORDER: It is ORDERED that Plaintiffs' Motion to File Supplement to Second Amended Complaint (Doc. # 132 ) is GRANTED in part and DENIED in part. It is further ORDERED as follows: 1. Plaintiffs' motion to supplemen t is GRANTED only as to the proposed supplement to Count III. Accordingly, Plaintiffs may supplement their second amended complaint with paragraphs 715 and 140142 of their proposed supplemental complaint. (Doc. # 134 -1.) 2. Plaintiffs' motion to supplement is DENIED in all other respects. 3. Plaintiffs shall file a revised second amended complaint on or before [14 days]. The revised second amended complaint should show the second amended complaint as it exists now i.e., incorporating as needed Alabama Act No. 2017-414, the courts ruling on Defendants' motion to dismiss (Doc. # 125 ), and the court's ruling in this Order. Signed by Chief Judge William Keith Watkins on 6/12/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
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JOHN DOE #1, JOHN DOE #3,
JOHN DOE #7, JOHN DOE # 9,
and JOHN DOE #10,
Plaintiffs,
v.
STEVEN T. MARSHALL,
Attorney General of the State of
Alabama, in his official capacity;
CHARLES WARD, Director of
the Alabama Department of Public
Safety, in his official capacity; and
HAL TAYLOR, Secretary of the
Alabama Law Enforcement
Agency, in his official capacity,
Defendants.

CASE NO. 2:15-CV-606-WKW

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Motion for Leave to File Supplement to
Second Amended Complaint (see Docs. # 132 & 134-1), which has been fully
briefed (Docs. # 135 & 136). The motion is due to be granted in part and denied in
part.
I.

BACKGROUND

This is a case challenging the constitutionality of various provisions of the
Alabama

Sex

Offender

Registration

and

Community

Notification

Act

(“ASORCNA,” or the “Act”), Ala. Code § 15-20A-1 et seq. A more robust recap
can be found in the court’s most recent memorandum opinion and order on
Defendants’ motion to dismiss. (Doc. # 125.) For now, a brief overview of the
case’s procedural history will be sufficient.
Plaintiffs filed their initial Complaint on August 20, 2015. (Doc. # 1.) That
complaint was amended with the court’s permission on November 18, 2015. (Doc.
# 39.) Defendants moved to dismiss for failure to state a claim, and the court
granted that motion in part and denied it in part on March 18, 2016. (Doc. # 51.)
Then came another motion to amend the complaint — granted by the court on
August 17, 2016 (Doc. # 80) — and another motion to dismiss (Doc. # 87). Before
that motion could be ruled on, the Alabama legislature passed Alabama Act No.
2017-414 (the “Amendment”), which revised many of the challenged ASORCNA
provisions. Supplemental briefing on the impact of those amendments was then
ordered (see Docs. # 110, 113, & 114), and on March 14, 2018, the court granted
in part and denied in part the motion to dismiss. (Doc. # 125.) Plaintiffs’ motion
for leave to file a third amended complaint was also denied without prejudice at
that time.
When all that was said and done, Plaintiffs’ six counts in their second
amended complaint were reduced to four: a challenge to ASORCNA’s residency
restrictions based on a due process right to intimate association (Count I); a due
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process vagueness challenge to ASORCNA’s employment exclusion zones (the
surviving claim of Count III); a First Amendment compelled-speech challenge to
ASORCNA’s branded-identification requirement (Count IV); and a First
Amendment

overbreadth

challenge

to

ASORCNA’s

internet

reporting

requirements (Count V). Dismissed without prejudice were Plaintiffs’ due process
challenge based on an irrebuttable presumption of dangerousness (Count II), their
vagueness challenge to residency exclusion zones and certain reporting
requirements (two of the three claims brought under Count III), and their 42 U.S.C.
§ 1983 individual-capacity claims against the officers responsible for the
implementation of ASORCNA’s branded-identification requirement (Count VI).
Plaintiffs now “seek to supplement their complaint to reflect the passage and
implementation of Alabama Act No. 2017-414.” (Doc. # 132, at 1.)
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 15(d) provides:
On motion and reasonable notice, the court may, on just terms, permit
a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be
supplemented. The court may permit supplementation even though
the original pleading is defective in stating a claim or defense. The
court may order that the opposing party plead to the supplemental
pleading within a specified time.
Courts generally agree that leave to file a supplemental pleading “should be
freely granted when doing so will promote the economic and speedy disposition of
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the entire controversy between the parties, will not cause undue delay or trial
inconvenience, and will not prejudice the rights of any of the other parties to the
action.” 6A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and
Procedure § 1504 (3d ed. 2018) (collecting cases). This is a similar standard to
that used in determining whether to grant leave to amend pursuant to Rule
15(a)(2), with the notable exception being that any supplementation must be based
on a “transaction, occurrence, or event that happened after the date of the pleading
to be supplemented.” Fed. R. Civ. P. 15(d) (emphasis added). If a motion to
supplement is based on events occurring before the pleading was filed, the court is
free to construe it as a motion to amend. Aside from that, however, most other
considerations are the same: “Would the supplementation be futile? Would a
nonmovant be prejudiced? Has there been any unreasonable delay in presenting
the supplementation?

And would the supplementation facilitate the efficient

resolution of current claims as well as any new ones?” W. Ala. Women’s Ctr. v.
Miller, 318 F.R.D. 143, 148 (M.D. Ala. 2016) (citations omitted); cf. Foman v.
Davis, 371 U.S. 178, 182 (1962) (listing “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [and] futility of amendment” as factors to consider on a motion
to amend).
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III.

DISCUSSION

Generally stated, Plaintiffs seek to supplement their second amended
complaint to:
-

Add additional facts and plaintiffs to Count I’s due process
challenge to the Act’s residency restrictions;

-

Provide additional facts of arbitrary enforcement to re-plead
Count III’s dismissed challenge to ASORCNA’s residency
exclusion zones;

-

Alter their legal theory and plead additional facts and parties to
transform Count II’s “irrebuttable presumption of
dangerousness” due process challenge to a new Count VII
“stigma plus” due process challenge; and

-

Reframe their 42 U.S.C. § 1983 individual-capacity claims
against state law enforcement officers from a First Amendment
violation to a “stigma plus” due process violation.

(See Doc. # 134-1.)
Defendants oppose the motion on the grounds of futility, untimeliness,
undue delay, and undue prejudice.

(Doc. # 135, at 3.)

Each proposed

supplemental count will be considered in turn.
A.

Supplemental Count I: Due Process Familial Association Challenge to
Residency Restrictions
In Plaintiffs’ second amended complaint, Count I was brought as an as-

applied challenge to ASORCNA’s residency restrictions on behalf of Doe 3 and
Doe 7 based on their fundamental right to intimate family associations. (Doc. # 81,
at 45.) All parties concluded that the passage of Alabama Act No. 2017-414 did
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not affect Plaintiffs’ claims in Count 1, and, as noted above, Count I survived
dismissal. (Doc. # 113, at 1; Doc. # 114, at 3; Doc. # 125, at 21.) Plaintiffs now
seek to add two additional parties to Count I: Michael A. McGuire and Y.O. Doe.
(Doc. # 134-1, at 24.)
Mr. McGuire’s situation is well familiar to the court from his separate
lawsuit challenging ASORCNA. See McGuire v. Strange, 83 F. Supp. 3d 1231
(M.D. Ala. 2015) (holding that ASORCNA’s travel-permit requirement violated
the Ex Post Facto Clause of the Constitution); McGuire v. City of Montgomery,
No. 2:11-cv-1027-WKW, 2013 WL 1336882 (M.D. Ala. Mar. 29, 2013)
(dismissing without prejudice all but one of Mr. McGuire’s ASORCNA
challenges). In their proposed supplemental complaint, Plaintiffs allege that Mr.
McGuire “continues to suffer under the debilitating restrictions of ASORCNA,”
that he is “still unable to live with his wife, who lives in an ASORCNA residential
zone of exclusion,” and that he “continues to be restricted of spending time and
overnight visits with his siblings and minor family members due to ASORCNA’s
residency restrictions and proscription on overnight visits with minors.” (Doc.
# 134-1, at 14 (emphasis added).)
If these unfortunate facts of life are “continuing,” however, then they were
not brought on by the passage of Alabama Act No. 2018-414 — the alleged “event
that happened after the date of the pleading to be supplemented” that forms the
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basis for Plaintiffs’ supplemental complaint.

See Fed. R. Civ. P. 15(d); (Doc.

# 132, at 1 (“Plaintiffs seek to supplement their complaint to reflect the passage
and implementation of Alabama Act No. 2017-414.”)).

Additionally, Mr.

McGuire’s objections to not being able to live with his wife or (since-deceased)
mother have been heard before, and Plaintiffs provide no reason why what the
court has already said is not still true: “No provision of Alabama’s sex offender
registration law prohibits [Mr. McGuire] from residing with his wife or his mother.
To the extent the law inhibits [him] from doing these things, it does so only
because the address at which Plaintiff desires to live with his wife and his mother
is not a compliant address.” McGuire, 2013 WL 1336882, at *11. It would be
futile to allow Mr. McGuire to resurrect claims the court has already dismissed
when he has not alleged facts purporting to show that this time things will be
different.
And then there is the matter of delay. Even if the court considered the
alleged continuing violations as themselves constituting supplemental events (or
construed the motion as one to amend rather than supplement), and even if Mr.
McGuire had not brought these claims before, Plaintiffs are silent about why they

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have waited two years to bring them in this case.1 For all these reasons, Plaintiffs
will not be allowed to add Mr. McGuire’s claims to Count I.
The other proposed additional plaintiff, Y.O. Doe, entered a “best interest
plea” when he was eighteen and was adjudicated as a youthful offender for sexual
abuse and electronic solicitation of a minor. (Doc. # 134-1, at 19.) Though he was
adjudicated as a minor, he must now abide by all of ASORCNA’s life-long
restrictions, and his information appears as part of the published sex offender
registry.

See Ala. Code § 15-20A-35.

As pertinent to Count I, Y.O. Doe’s

relatives live within ASORCNA’s zones of exclusion, and many of them have
children or grandchildren living in their homes that prohibit Y.O. Doe from living
there. (Doc. # 134-1, at 24.)
These facts are also not based on the passage of Alabama Act No. 2017-414,
and Plaintiffs do not explain their delay in alleging them after two and a half years
of litigation have already passed.

Allowing supplementation now would not

facilitate the efficient resolution of Count I.
B.

Supplemental Count III: Due Process Vagueness Challenge to
Residency Restrictions
In dismissing Plaintiffs’ vagueness challenge to ASORCNA’s residency

restrictions, the court found that the Amendment’s preapproval provision
1

Plaintiffs initially moved to add Mr. McGuire as a party on August 1, 2017, in their
Motion for Leave to File Third Amended Complaint — slightly less than two years from the date
the initial complaint was filed. (Doc. # 118.)
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“pushe[d] the law across the constitutional line” because it “helps protect against
the uneven application of the law.” (Doc. # 125, at 27–28.) The court explained,
however, that the dismissal would be without prejudice “so that Plaintiffs can replead their claim if these uneven enforcement practices have persisted past the
Amendment’s effective date of August 1, 2017.” (Doc. # 125, at 28 n.13.)
Plaintiffs now seek to revive this claim and allege that “[s]ince August 1,
2017, the residency restrictions of ASORCNA . . . have been enforced in a
shockingly arbitrary and nonsensical manner by local law enforcement.” (Doc.
# 134-1, at 2.) They allege that some ASORCNA registrants have received written
approval from local law enforcement agencies to live in non-compliant residency
zones and that different law enforcement agencies regularly enforce the restrictions
differently. (Doc. # 134-1, at 2–4.) While Defendants recognize the “inconsistent”
enforcement practices, they contend that they are “not the result of any vagueness
in the statute” and thus are irrelevant to Plaintiffs’ facial challenge. (Doc. # 135, at
10.) They also assert that discovery on the issue would be unduly prejudicial.
Without deciding the merits of the claim, though, it is too early to tell
whether the uneven enforcement practices derive from vagueness in the amended
statute. For now it is enough that Plaintiffs have alleged facts showing that uneven
enforcement practices have persisted despite the passage of Alabama Act No.
2017-414 and that the Amendment’s implementation itself may be causing
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registrants confusion in determining where they may lawfully reside. Accordingly,
Plaintiffs will be allowed to supplement their complaint as to Count III.
C.

Supplemental Count VII: Due Process “Stigma Plus” Challenge
Plaintiffs allege in Supplemental Count VII that a range of ASORCNA

provisions infringe on their recognized liberty interests, that they do so without any
kind of individual assessment, and that they thus fail Fourteenth Amendment
“stigma plus” analysis. (Doc. # 134-1, at 31.) The “stigma plus” line of cases
establishes that a procedural due process violation can occur when the government
publicly defames an individual, the defamation places a stigma on the person’s
reputation, and that stigma results in the loss of a tangible liberty interest. See
generally Paul v. Davis, 424 U.S. 693, 701 (1976).
Plaintiffs brought a similar challenge in Count II of their second amended
complaint. They argued then that ASORCNA violated their due process rights by
categorically deeming all registrants to “pose recidivist threats of committing
sexual crimes against children” without providing a way for an individual to rebut
that presumption. (Doc. # 81, at 47.) The court dismissed the challenge because
“the question of [ASORCNA’s] applicability turns solely on conviction of a sex
crime,” which the convicted offender already had a procedurally safeguarded
opportunity to contest. (Doc. # 125, at 24.)

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The liberty interests Plaintiffs now assert, and the specific ASORCNA
provisions they challenge, largely replicate those of the prior iteration. (Compare
Doc. # 81, at 47–48, with Doc. # 134-1, at 31–32.) The main exception is that
Plaintiffs now also challenge the application of ASORCNA to “persons who were
never convicted of crimes (i.e., Youthful Offender adjudications),” and thus seek
to incorporate Y.O. Doe as an additional plaintiff. (Doc. # 134-1, at 31.) But a
change in legal theory is not the kind of “transaction, occurrence, or event that
happened after the date of the pleading” that allows for supplementation under
Rule 15(d). Nor have Plaintiffs explained why they have delayed so long in
bringing these claims to permit amendment pursuant to Rule 15(a)(2). Defendants
have been defending this action for two and a half years. Allowing a claim to be
added now that could have been brought from day one would prejudice Defendants
and result in further delay. Accordingly, it will not be allowed as to Count VII.
D.

Supplemental Count VIII: 42 U.S.C. § 1983 Individual Liability Claims
In Supplemental Count VIII, Plaintiffs seek to add as defendants in their

individual capacities the law enforcement officers responsible for implementing
ASORCNA’s branded-identification requirements. (Doc. # 134-1, at 32.) As with
Supplemental Count VII, though, the main difference between their claim now and
the similar one brought in their second amended complaint is a change in legal
theory: In the prior version, the law enforcement officers were alleged to have
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violated Plaintiffs’ First Amendment rights, while now they are alleged to have
violated Plaintiffs’ due process rights. For the same reasons explained above,
Plaintiffs will not be able to amend their complaint as to Count VIII at this late
hour.
IV.

CONCLUSION

It is ORDERED that Plaintiffs’ Motion to File Supplement to Second Amended
Complaint (Doc. # 132) is GRANTED in part and DENIED in part. It is further
ORDERED as follows:
1.

Plaintiffs’ motion to supplement is GRANTED only as to the

proposed supplement to Count III. Accordingly, Plaintiffs may supplement their
second amended complaint with paragraphs 7–15 and 140–142 of their proposed
supplemental complaint. (Doc. # 134-1.)
2.

Plaintiffs’ motion to supplement is DENIED in all other respects.

3.

Plaintiffs shall file a revised second amended complaint on or before

[14 days].

The revised second amended complaint should show the second

amended complaint as it exists now — i.e., incorporating as needed Alabama Act
No. 2017-414, the court’s ruling on Defendants’ motion to dismiss (Doc. # 125),
and the court’s ruling in this Order.
DONE this 12th day of June, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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