Smelcher v. Attorney General of the State of Alabama
MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 1/9/2019. (TLM, )
2019 Jan-09 PM 04:01
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES FLOYD SMELCHER,
ATTORNEY GENERAL OF THE
STATE OF ALABAMA,
Case No.: 1:18-cv-1099-ACA
Pro se Plaintiff James Floyd Smelcher challenges the constitutionality of the
Alabama Sex Offender Registration and Community Notification Act, Ala. Code
§§ 15-20A-1 et seq.
Defendant Steve Marshall, Attorney
General of the State of Alabama, filed a motion to dismiss Plaintiff’s complaint.
(Doc. 9). In response, Plaintiff filed a motion for summary judgment. (Doc. 13).
For the reasons explained below, the court finds that all of Plaintiff’s claims are
barred by the applicable statute of limitations. Therefore, the court GRANTS
Defendant’s motion to dismiss and DENIES Plaintiff’s motion for summary
judgment as MOOT.
When resolving a motion to dismiss, the court must accept as true the factual
allegations in the complaint and construe them in the light most favorable to the
plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir.
2012). The court also may consider documents central to a plaintiff’s claims when
no party disputes the authenticity of the documents. See Day v. Taylor, 400 F.2d
1272, 1276 (11th Cir. 2005). Accordingly, the court’s description of the relevant
facts incorporates Plaintiff’s allegations and unchallenged documents that Plaintiff
submitted in support of his claims. (See Doc. 13 at 4-13).
According to the complaint, Plaintiff was charged with “rape of [an] adult”
in 1979. (Doc. 1 at 1). Plaintiff served time in jail after his rape conviction and
was released from custody in 1983. (Id. at 2). In 2011, the State of Alabama
enacted ASORCNA. (Doc. 1 at 2; Doc. 13 at 5). On December 3, 2011, Mr.
Smelcher signed a document acknowledging that he was aware of ASORCNA’s
requirements and his obligations under the law, and he initialed 28 statements that
summarize ASORCNA requirements. (Doc. 13 at 7-13).
Plaintiff alleges that ASORCNA applies retroactively to his rape conviction
and subjects him to its various restrictions for the rest of his life. (Doc. 1 at 1-4).
For example, Plaintiff, who lives in Oxford, Alabama, must pay a $10 registration
fee to the City every 90 days and a separate $10 registration fee to the county. (Id.
at 2). In 2000, local law enforcement told Plaintiff that he could not live with his
wife and children. (Id. at 2-3). Plaintiff alleges that in 2017, he discovered this
was incorrect because ASORCNA allows him to live with his own children and
stepchildren. (Id.). In 2000, after he obtained a commercial driver’s license,
Plaintiff was told that he was prohibited from being away from his residence more
than three consecutive days.
(Id. at 3).
Plaintiff alleges that because of
ASORCNA, the words “criminal sex offender” appear in red on his driver’s
license. (Doc. 1 at 3). Plaintiff alleges that his landlord makes him pay higher rent
because he is a sex offender. (Id. at 4). Plaintiff also alleges that he cannot move
into a retirement home of choice because of its proximity to a school or daycare.
(Doc. 13 at 2).
Based on these allegations, Plaintiff filed suit against the Attorney General
of the State of Alabama. (Doc. 1). Plaintiff contends that ASORCNA constitutes
cruel and unusual punishment and double jeopardy. (Doc. 1 at 1). Plaintiff also
appears to assert that the statute violates his due process rights. (Doc. 1 at 2-4).
Plaintiff’s complaint does not contain separate counts that clearly identify his
claims, but the court has liberally construed Plaintiff’s allegations, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and finds that Plaintiff asserts claims under 42
U.S.C. § 1983 for violations of various constitutional rights.
On October 5, 2018, Defendant filed a motion to dismiss Plaintiff’s
complaint. (Doc. 9). In response to Defendant’s motion to dismiss, on November
2, 2018, Plaintiff filed a document titled “Motion for Summary Judgment.” (Doc.
13). Plaintiff did not respond substantively to Defendant’s argument for dismissal
or advance arguments concerning his entitlement to summary judgment. Instead,
Plaintiff reasserted the general nature of the allegations in his complaint that
ASORCNA violates his constitutional rights. (See generally Doc. 13 at 1-3). On
November 11, 2018, Defendant filed a consolidated response in opposition to
Plaintiff’s motion for summary judgment and reply brief in support of its motion to
dismiss. (Doc. 16).
The Defendant moves to dismiss Plaintiff’s complaint, contending that all of
Plaintiff’s claims are barred by the statute of limitations. (Doc. 10 at 9-14).1 The
A statute of limitations bar is an affirmative defense, and a plaintiff is not
required to negate an affirmative defense in his complaint. La Grasta v. First
Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004). Therefore, “[d]ismissal
under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is
Alternatively, Defendant argues that Plaintiff’s claims fail to state claim for relief under
applicable federal law. (Doc. 10 at 14-33). Because the court concludes that the statute of
limitations bars Plaintiff’s claims, the court need not consider Defendant’s alternative arguments
regarding the merits of Plaintiff’s claims.
appropriate only if it is apparent from the face of the complaint that the claim is
time-barred.” Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.
2005) (internal quotation marks omitted).
“All constitutional claims brought under § 1983 are tort actions, subject to
the statute of limitations governing personal injury actions in the state where the §
1983 action has been brought.” Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir.
2008) (internal quotation marks omitted). In Alabama, that limitations period is
two years. Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). Therefore,
Plaintiff was required to bring his claim within two years from the date the
limitations period began to run.
For a § 1983 claim, “the statute of limitations does not begin to run until the
facts which would support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for his rights.” McNair v. Allen, 515 F.3d
1168, 1173 (11th Cir. 2008). “Thus Section 1983 actions do not accrue until the
plaintiff knows or has reason to know that he has been injured.” Mullinax v.
McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
Plaintiff’s complaint alleges that he became subject to ASORCNA when it
was enacted in 2011. (Doc. 1 at 2). In addition, Plaintiff received a letter from the
Calhoun County Sheriff’s Office explaining that effective July 1, 2011, the
“Alabama legislature signed new sex offender registration and notification
guidelines into law.” (Doc. 13 at 5). The letter provides information about some
of the new guidelines. The letter states that pursuant to the new law, all sex
offenders must: (1) register four times a year and pay a $10 quarterly fee; (2)
provide notice of intent to leave his or her county of residence for three or more
consecutive days and complete a travel permit; and (3) obtain and have in his or
her possession at all times a valid driver license or identification card. (Doc. 13 at
On October 3, 2011, Plaintiff signed a document titled “Adult Sexual
Offender Requirements.” (Doc. 13 at 7-13). By signing the document, Plaintiff
acknowledged that he had read the information and was “aware of all that is
required” of him under ASORCNA. (Doc. 13 at 13). In addition to his signature,
Plaintiff initialed each of 28 different ASORCNA requirements. (Doc. 13 at 7-13).
Relevant to Plaintiff’s claims, Plaintiff initialed the following requirements:
The provisions of the Act are applicable to every person
described in the Act, without regard to when his or her crime or
crimes were committed or his or her duty to register pursuant to the
Act arose, and to every offense described in the Act, regardless of
when it was committed.
The offender shall not establish a residence, any other living
accommodation or habitually live within 2,000 feet of the property
line of any school or child care facility.
The offender shall not establish a residence where a person
under the age of 18 years of age resides, except as elsewhere
provided by law.
The offender shall appear in person and register all required
registration information listed in Act No. 2011-640 with local law
enforcement in each county/municipality where the offender
resides, is employed or attends school during the offender’s birth
month and every three months thereafter for the duration of the
If an offender intends to be away from his or her residence for a
period of three or more consecutive days, the offender shall report
such information in person within three (3) [days] prior to leaving
his or her jurisdiction for such travel to local enforcement in his or
her county of residence and complete a travel permit provided by
The offender shall obtain and have in his or her possession at
all times a valid driver license or identification card issued by the
Alabama Department of Public Safety. This driver license or
identification card shall bear a designation that enables law
enforcement officers to identify the licensee as a sex offender.
The offender shall be required to pay a registration fee of $10 to
each registering agency where the offender resides beginning with
the first quarterly registration on or after July 1, 2011 and each
quarterly registration thereafter.
(Doc. 13 at 7-10).
If ASORCNA violated Plaintiff’s constitutional rights, it did so starting in
2011. At the latest, Plaintiff was notified on October 3, 2011 that he was subject to
ASORCNA and the specific requirements about which he complains. As of that
time, Plaintiff knew or should have known all of the facts necessary to pursue his
case, but Plaintiff did not file his lawsuit until July 2018, more than two years later.
Accordingly, Plaintiff’s claims are untimely. See Meggison v. Bailey, 575 F.
App’x 865, 867 (11th Cir. 2014) (affirming district court’s dismissal of
constitutional challenge to Florida’s sex offender registration law because the
plaintiff’s § 1983 claims accrued on the date on which the state notified plaintiff
that he was required to register, and plaintiff did not file his lawsuit until after the
four-year statute of limitations for a § 1983 claim brought in Florida).
To the extent Plaintiff might argue that ASORCNA’s quarterly $10 fee and
prohibition of living near schools or daycares continue to violate Plaintiff’s rights
(see Doc. 13 at 2), the Eleventh Circuit has rejected the application of the
“continuing violation” doctrine to statute of limitations defenses in this context.
As the Meggison Court explained:
The continuing-violation doctrine extends the limitations period for a
violation that continues from the past into the present. Knight v.
Columbus, Ga., 19 F.3d 579, 580-81 (11th Cir. 1994). We must
contrast that scenario from a scenario in which a discrete, one-time
violation in the past continues to have effects into the future without
itself remaining ongoing. Id. Here, the act Meggison contends
violated his due-process rights was his classification as a sex offender
subject to Florida’s registration requirements. This classification will
continue to have effects on Meggison into the future, but a new act
has not occurred every time Meggison feels one of those continuing
effects. See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003)
(“Here, the defendants’ act ... was a one time act with continued
consequences, and the limitations period is not extended.”). For this
reason, the continuing-violation doctrine does not apply to Meggison's
claim, and the district court did not err in dismissing his claim as
Meggison, 575 F. App’x at 867. The same rationale applies to Plaintiff’s claims.
Plaintiff contends that his classification as a sex offender which subjects him
to various obligations under ASORCNA violates his constitutional rights. This is a
one-time violation that continues to have effects on Plaintiff, but a new act does
not occur every time Plaintiff is required to comply with his responsibilities under
ASORCNA. Moreover, the continuing violation doctrine applies only when “a
reasonably prudent plaintiff would have been unable to determine that a violation
had occurred.” Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335
(11th Cir. 2006). And, as explained above, Plaintiff’s October 3, 2011 receipt of
ASORCNA’s requirements and his acknowledgement that was subject to those
requirements put him on notice of any alleged constitutional violation.
Accordingly, Plaintiff’s claims are barred by the statute of limitations.
Because Plaintiff’s claims are barred by the statute of limitations, the court
GRANTS Defendant’s motion to dismiss and DISMISSES Plaintiff’s claims
The court DENIES Plaintiff’s motion for
summary judgment as MOOT. (Doc. 13).
The court will enter a separate final judgment consistent with this
DONE and ORDERED this January 9, 2019.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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