Windwalker v. Bentley et al
MEMORANDUM OPINION, as set out, re dft's motion to dismiss the Amended Complaint 21 . Signed by Judge Virginia Emerson Hopkins on 2/26/13. (CTS, )
2013 Feb-26 PM 04:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ROBERT BENTLEY, et al.,
Case No.: 1:12-CV-2959-VEH
Plaintiff Jim Windwalker (“Mr. Windwalker”) is proceeding pro se in this
lawsuit. Pending before the court is Defendants’ Motion To Dismiss the Amended
Complaint (Doc. 21) (the “Dismissal Motion”) filed on January 14, 2013.
On January 30, 2013, Mr. Windwalker filed his opposition (Doc. 24) to the
Dismissal Motion. Defendants followed with their reply (Doc. 25) on February 19,
2013. Accordingly, the Dismissal Motion is now under submission and, for the
reasons explained below, is due to be granted.
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “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. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
In his lawsuit, Mr. Windwalker asserts federal and state constitutional claims
relating to the Alabama Sex Offender Registration and Community Notification Act
(“ASORCNA”), Ala. Code § 15-20A-1, et seq. (See generally Doc. 16). The court
addresses the plausibility of Mr. Windwalker’s federal claims first.
Liberally construed, Mr. Windwalker’s amended complaint asserts federal
constitutional violations of procedural due process,1 ex post facto, equal protection,
and free exercise. (See generally Doc. 16). The court analyzes each one separately
To the extent that Mr. Windwalker is attempting to assert a substantive due process claim,
such a theory is barred by the Eleventh Circuit’s analysis of a comparable Florida sex-offender
statute in Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005). See id. at 1345 (“Though the Supreme
Court has not addressed whether substantive due process invalidates sex offender registration
statutes, we can find no history or tradition that would elevate the issue here to a fundamental right.”)
(citation omitted); see also id. at 1344 (“The circuit courts that have considered this substantive due
process argument regarding sex offender registries have upheld such registration and publication
requirements finding no constitutional infirmities.” (citing Doe v. Tandeske, 361 F.3d 594, 597 (9th
Cir. 2004) (per curiam))).
The ASORCNA is a sex-offender state statute which has the purpose of
“protecting vulnerable populations, particularly children.” Ala. Code § 15-20A-2(5);
see id. (“The Legislature declares that its intent in imposing certain registration,
notification, monitoring, and tracking requirements on sex offenders is not to punish
sex offenders but to protect the public and, most importantly, promote child safety.”).
The ASORCNA sets forth various categories of criminal convictions which will
subject a person to its requirements. Ala. Code § 15-20A-3(a)-(f); see also id. §
15-20A-5 (listing applicable sex offenses).
In his amended pleading, Mr. Windwalker acknowledges that he falls within
coverage under the ASORCNA. (Doc. 16 at 1 ¶ 4 (“I reported to the Sheriff as
required by law . . . .”)). Mr. Windwalker maintains that the registration and other
requirements of the ASORCNA violate his due process rights.
Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L.
Ed. 2d 98 (2003), forecloses Mr. Windwalker’s procedural due process attack on the
ASORCNA. More specifically, the United States Supreme Court determined in
Connecticut DPS that a Connecticut sex-offender statute tied (akin to the
ASORCNA) to a person’s previous conviction did not “violate the Due Process
Clause because officials did not afford registrants a predeprivation hearing to
determine whether they are likely to be ‘currently dangerous.’” Id. at 4, 123 S. Ct. at
1162. As the Court clarified, “due process does not require the opportunity to prove
a fact that is not material to the State’s statutory scheme.” Id. at 4, 123 S. Ct. at 1163.
Because of the similarities in the statutory patterns between the ASORCNA
and the Connecticut sex-offender statute, the court finds Connecticut DPS to be
controlling precedent with respect to Mr. Windwalker’s due process claim. The court
further agrees with Defendants that, in light of Connecticut DPS’s holding (which
necessarily trumps Mr. Windwalker’s reliance upon the preceding and merely only
potentially persuasive decision of Doe v. Pryor, 61 F. Supp. 2d 1224 (M.D. Ala.
1999)), Mr. Windwalker has not and cannot state a viable procedural due process
claim premised upon the ASORCNA.
Ex Post Facto
Mr. Windwalker’s efforts to challenge the ASORCNA on an ex post facto basis
are similarly unavailing in light of the Supreme Court’s guidance in Smith v. Doe, 538
U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). As a general rule, a law may
constitute an ex post facto violation if it is intended to impose a retroactive
punishment or if it has the effect of transforming “a[n] otherwise civil remedy” into
“a criminal penalty.” Id. at 92, 123 S. Ct. at 1146-47 (quoting Hudson v. United
States, 522 U.S. 93, 100, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997)).
In Smith, the Supreme Court addressed for the first time whether “a sex
offender registration and notification law constitutes retroactive punishment
forbidden by the Ex Post Facto Clause.” Id. at 92, 123 S. Ct. at 1146. After setting
forth the framework for determining whether Alaska’s sex-offender statute was
punitive in nature, the Court found, upon “examination [that] the Act’s effects lead
to the determination that respondents cannot show, much less by the clearest proof,
that the effects of the law negate Alaska’s intention to establish a civil regulatory
scheme.” Id. at 105, 123 S. Ct. at 1154.
Here, the stated purpose of the ASORCNA is undoubtedly civil in nature and
Mr. Windwalker has not alleged any facts that would support an ex post facto effects
claim consistent with Smith. See id. at 97, 123 S. Ct. at 1149 (“The factors most
relevant to our analysis are whether, in its necessary operation, the regulatory scheme:
has been regarded in our history and traditions as a punishment; imposes an
affirmative disability or restraint; promotes the traditional aims of punishment; has
a rational connection to a nonpunitive purpose; or is excessive with respect to this
purpose.”). Thus, from a pleadings standpoint, Mr. Windwalker’s ex post facto claim
Additionally, while the ex post facto status of the ASORCNA appears to still
be an open question, several other decisions involving challenges of the requirements
of comparable sex-offender statutes persuasively suggest that the ASORCNA is
constitutionally sound from an ex post facto standpoint. For example, in United
States v. W.B.H., 664 F.3d 848 (11th Cir. 2011), the Eleventh Circuit, relying upon
Smith, upheld the federal Sex Offender Registration and Notification Act
(“SORNA”), 42 U.S.C. § 16901, et seq. over an Ex Post Facto Clause challenge:
The fit between SORNA’s regulatory purpose and the means used
to achieve it is not materially different from that of the Alaska statute in
Doe. Both statutes require registration and mandate dissemination on
the internet of information regarding the whereabouts of convicted sex
offenders, with the reporting requirements dependent on the category of
dangerousness. Both statutory regimes group the offenders in categories
instead of making individual determinations of dangerousness. Because
Doe held that the regulatory scheme of the Alaska statute is not
excessive in relation to its non-punitive purpose, it necessarily follows
that SORNA’s is not either. . . .
For the reasons we have discussed, when it enacted SORNA
Congress did not intend to impose additional punishment for past sex
offenses but instead wanted to put into place a civil and non-punitive
regulatory scheme. Given that intent, the question under the Doe
decision is whether there is “the clearest proof” that SORNA is so
punitive in effect, as applied to those convicted of sex offenses under the
Alabama Youthful Offender Act, as to negate the intention that it be a
civil regulatory statute. See id. at 92, 123 S. Ct. at 1147; Ward, 448 U.S.
at 249, 100 S. Ct. at 2641. That “clearest proof” is lacking, as our
application of the Doe guideposts, see Doe, 538 U.S. at 97–106, 123 S.
Ct. at 1149–54, makes clear. Therefore, we reject W.B.H.’s ex post
facto attack on SORNA’s application to him.
W.B.H., 664 F.3d at 859-60.
Likewise, the Eighth Circuit has rejected an ex post facto challenge of an Iowa
sex-offender statute’s residency requirements. See Doe v. Miller, 405 F.3d 700, 705
(8th Cir. 2005) (“A majority of the panel further concludes that the statute does not
amount to unconstitutional ex post facto punishment of persons who committed
offenses prior to July 1, 2002, because the appellees have not established by the
‘clearest proof,’ as required by Supreme Court precedent, that the punitive effect of
the statute overrides the General Assembly’s legitimate intent to enact a nonpunitive,
civil regulatory measure that protects health and safety.”).
Accordingly, in light of the foregoing, the court concludes that Mr.
Windwalker has not and cannot plausibly state a Ex Post Facto Clause claim
connected to the requirements that he must adhere to under the ASORCNA.
Mr. Windwalker also has not and cannot state a viable equal protection claim.
As the Eleventh Circuit explained in a decision involving the constitutionality of a
Florida sex-offender statute:
We recognize that the Supreme Court has designated several
classifications as suspect and subject to heightened scrutiny under the
Equal Protection Clause. They include classifications regarding “race,
alienage, national origin, gender, or illegitimacy.” Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995). Here, Appellants argue that
the Sex Offender Act impermissibly treats sex offenders differently from
other felony offenders and that it arbitrarily assigns different registration
requirements to sub-classes of sex offenders based on parental
relationship to victim, status of offender as a minor, insanity or civil
commitment of the offender, and release of offender from supervision
prior to enactment of the statute. Since sex offenders are not considered
a suspect class in general, see United States v. LeMay, 260 F.3d 1018,
1030 (9th Cir. 2001), and the various sub-classifications presented by
the Appellants do not implicate a suspect class, we review those
classifications under a rational basis test asking whether they are
“rationally related to a legitimate governmental purpose.” City of
Cleburne, 473 U.S. at 446, 105 S. Ct. at 3258.
Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005).
Here, Mr. Windwalker has not presented any classifications or subclassifications under the ASORCNA that would trigger heightened equal protection
scrutiny. Accordingly, consistent with Moore, the ASORCNA is subject to the
Further, pursuant to the rational-basis standard, a statute is constitutionally
sufficient “when ‘there is any reasonably conceivable state of facts that could provide
a rational basis for’ it.” Moore, 410 F.3d at 1346 (quoting FCC v. Beach
Communications, 508 U.S. 307, 313, 113 S. Ct. 2096, 2102, 124 L. Ed. 2d 211
(1993)). Additionally, “[a]lmost every statute subject to the very deferential rational
basis . . . standard is found to be constitutional.” Moore, 410 F.3d at 1346-47
(internal quotation marks omitted).
Against this backdrop, and given the ASORCNA’s expressly incorporated
legislative findings articulating several reasonable bases for enacting the law, see Ala.
Code § 15-20A-2(1)-(5), the court concludes that Mr. Windwalker has not and cannot
plausibly state a rational-basis equal protection claim.
While his complaint does not clarify how the ASORCNA might burden his
exercise of religious freedom, regardless, Mr. Windwalker cannot plausibly state a
Free Exercise Clause claim. In particular, the Supreme Court has made it clear that
“the right of free exercise does not relieve an individual of the obligation to comply
with a ‘valid and neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Dept.
of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 1600
(1990) (quoting United States v. Lee, 455 U.S. 252, 263, n.3, 102 S. Ct. 1051, 1058,
n.3, 71 L. Ed. 2d 127 (1982) (Stevens, J., concurring in judgment)).
Further, nothing contained in the ASORCNA relates to a person’s religious
practice expect for the provision which permits a covered individual to change his
name for religious reasons. See Ala. Code § 15-20A-36(a) (“No sex offender shall
change his or her name unless the change is incident to a change in the marital status
of the sex offender or is necessary to effect the exercise of the religion of the sex
offender.”) (emphasis added).
Accordingly, the court concludes that Mr. Windwalker has not and cannot state
a free exercise claim relating to the ASORCNA.
As a result of the foregoing analysis, the court has decided to dismiss all of Mr.
Windwalker’s federal claims. This means that the only causes of action which remain
before the court are Mr. Windwalker’s Alabama constitutional ones.
As Defendants point out (Doc. 21 at 12), pursuant to 28 U.S.C. § 1367(c)(3):
The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if– . . .
(3) the district court has dismissed all claims over which it
has original jurisdiction, . . . .
28 U.S.C. § 1367(c)(3).
Exercising its discretion under § 1367(c)(3), the court declines to maintain
supplemental jurisdiction over Mr. Windwalker’s remaining state law claims.
Accordingly, such counts are all due to dismissed without prejudice to Mr.
Windwalker’s right to pursue them in state court.
Consistent with the above, the Dismissal Motion is due to granted, and Mr.
Windwalker’s federal constitutional claims are due to be dismissed with prejudice for
failure to state a claim. Further, Mr. Windwalker’s state constitutional claims are due
to be dismissed without prejudice pursuant to the court’s discretionary election under
§ 1367(c)(3). The court will enter a separate dismissal order.
DONE and ORDERED this 26th day of February, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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