Otey v. Alabama, State of, The et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 4/20/2017. (AVC)
2017 Apr-10 PM 01:35
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
RANDALL BENJAMIN OTEY,
DIRECTOR OF ALABAMA LAW
ENFORCEMENT AGENCY, et al.,
Case No.: 2:16-cv-01540-RDP-SGC
On March 23, 2017, the Magistrate Judge’s Report and Recommendation was entered
and Plaintiff was allowed therein fourteen (14) days in which to file objections to the
recommendations made by the Magistrate Judge. (Doc. # 22). On March 31, 2017, Plaintiff
filed a Motion to Amend the Complaint. (Doc. # 24). The court has liberally construed some of
Plaintiff’s allegations in his motion to amend the complaint as objections to the Report and
On April 4, 2017 and April 7, 2017, Plaintiff filed objections to the
Magistrate Judge’s Report and Recommendation. (Docs. # 25, 26). After careful review, and for
the reasons explained below, the Magistrate Judge’s Report and Recommendation is due to be
affirmed and adopted, Plaintiff’s motion to amend is due to be denied, and this action is due to be
dismissed without prejudice.
Standard of Review
When reviewing a Magistrate Judge’s Report and Recommendation, the court reviews the
portions to which an objection has been raised de novo. Tauber v. Barnhart, 438 F. Supp. 2d
1366, 1373 (N.D. Ga. 2006). The court reviews those portions that are not specifically objected
to under the “clearly erroneous” standard.
See Liberty Am. Ins. Grp., Inc. v. WestPoint
Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001).
Although the court has direction to grant or deny a motion to amend, it must freely grant
a plaintiff leave to amend the complaint when justice so requires. Bryant v. Dupree, 252 F.3d
1161, 1163 (11th Cir. 2001) (quoting Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir.
1988)). Generally, a court should grant a plaintiff one opportunity to amend his or her complaint
before it dismisses an action with prejudice. Id. The court does not need to grant leave to amend
the complaint, though, when a plaintiff has failed to cure prior deficiencies or when an
amendment would be futile. Id.
Analysis of Plaintiff’s Objections to the Report and Recommendation
A de novo review of the Report and Recommendation and the record, and a review of
Plaintiff’s objections to the Magistrate Judge’s thorough analysis of the claims in this action
reveal no ground for departing from the Magistrate Judge’s conclusion that all of Plaintiff’s
claims are due to be dismissed.
The Magistrate Judge Committed No Error in Concluding that Sex
Offenders do Not Constitute a Suspect Class
In his objections to the Report and Recommendation, Plaintiff argues that sex offenders
are a suspect class because the Alabama Sex Offender Registration and Community Notification
Act (“ASORCNA”) imposes additional burdens on that class. (See Doc. # 25 at 2). He also
contends that ASORCNA classifies sex offenders as individuals with an “incurable disorder.”
(Doc. # 26 at 2). However, the Magistrate Judge correctly asserted that sex offenders are not
generally considered a suspect class under Eleventh Circuit law. (Doc. # 22 at 9-10) (citing Doe
v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005)). Thus, this objection provides no basis for
overruling the Magistrate Judge’s recommendation that Plaintiff’s equal protection claim is due
to be dismissed.
The Magistrate Judge Did Not Err by Relying on the Alabama Legislature’s
Legislative Findings as Rational Bases for ASORCNA
In his objections to the Report and Recommendation, Plaintiff argues that the court
should not rely on the recidivism rate of sex offenders as a rational basis for ASORCNA because
many judicial opinions have used a 1997 report from the U.S. Department of Justice as evidence
that sex offenders re-offend at a higher rate than other criminals. (See Doc. # 25 at 2). Plaintiff
contends that the Alabama Legislature should be required to produce updated recidivism
statistics to support ASORCNA. (Id.).
When enacting ASORCNA, the Alabama Legislature found that “[r]egistration and
notification laws are a vital concern as the number of sex offenders continues to rise. The
increasing numbers coupled with the danger of recidivism place society at risk.” Ala. Code § 1520A-2(1). The Alabama Legislature did not cite a specific source for its finding that sex
offenders present a danger of recidivism. Nevertheless, the Supreme Court observed in 2003 that
“[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’” Smith v. Doe, 538
U.S. 84, 103 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34 (2002)). The Court relied on two
1997 reports from the U.S. Department of Justice to support this recidivism assessment. Id. The
Court determined that a state could reasonably conclude that sex offenders present a “substantial
risk of recidivism” because such a conclusion is consistent with prior studies of the recidivism
rate for sex offenders. See id. When denying a similar equal protection claim to that presented
in this action, the Eleventh Circuit held that the Alabama Legislature articulated “several
reasonable bases for enacting [ASORCNA].” Windwalker v. Governor of Ala., 579 F. App’x
769, 774 (11th Cir. 2014).
Plaintiff’s objection presents insufficient grounds to overrule the Magistrate Judge’s
recommendation that the court dismiss the equal protection claim. Plaintiff provides no evidence
to contest the Legislature’s finding that sex offenders present a danger of recidivism. (See
generally Doc. # 25). Additionally, the Alabama Legislature provided several reasons other than
recidivism for enacting ASORCNA, including increasing public awareness of sex offenders,
maintaining contact between sex offenders and law enforcement, ensuring that juvenile sex
offenders receive treatment, protecting the public from criminals who might use physical
violence, and protecting vulnerable populations from harm. See generally Ala. Code § 15-20A2. Plaintiff has not raised any challenge to relying on these other articulated reasons as rational
bases for ASORCNA. Accordingly, the court finds no ground for disagreeing with the Eleventh
Circuit’s holding that the Alabama Legislature articulated several rational bases for enacting
ASORCNA. Windwalker, 579 F. App’x at 774. The Magistrate Judge’s recommendation to
dismiss Plaintiff’s equal protection claim is due to be affirmed.1
Plaintiff’s Substantive Due Process Claim is Foreclosed by Precedent
In his motion to amend, Plaintiff argues that ASORCNA violates his constitutionallyprotected liberty interests because of (1) arbitrary enforcement, (2) arbitrary restraints on
freedom, and (3) ASORCNA’s lifetime reporting requirements and fee provisions. (Doc. # 24 at
7). He claims that the statute violates “a fundamental right to be free from oppresive (sic) statues
(sic).” (Id. at 6).
Plaintiff contends in his objections that ASORCNA discriminates against men on the basis of sex because
prostitution is not classified as a sex offense. (See Doc. # 26 at 3). The court agrees with the Magistrate Judge that
Plaintiff’s arguments about the scope of sex offenses in ASORCNA provide no plausible allegations that the
Alabama Legislature intended to discriminate against men in passing ASORCNA, a facially gender-neutral law.
(Doc. # 22 at 10-11). Cf. L.A. v. Hoffman, 144 F. Supp. 3d 649, 672-73 (D.N.J. 2015) (dismissing an equal
protection challenge to a sex offender registry statute on the ground that plaintiffs failed to present plausible
allegations that the state intended to discriminate against in-state sex offenders).
In analyzing whether Florida’s sex offender registration statute violated substantive due
process, the Eleventh Circuit concluded that the statute did not infringe on a fundamental right.
Doe, 410 F.3d at 1345. Because the registration statute was rationally related to a governmental
interest in protecting citizens from criminal activity, the Eleventh Circuit held that it did not
violate the plaintiff’s substantive due process rights.2 Id. at 1345-46. Plaintiff’s substantive due
process claim is foreclosed by the Eleventh Circuit’s opinion in Doe, and the Magistrate Judge
properly recommended that this claim is due to be dismissed.
Plaintiff’s Ex Post Facto Claim is Foreclosed by Precedent
In the Report and Recommendation, the Magistrate Judge considered whether Plaintiff
could present a viable ex post facto challenge to ASORCNA. (See Doc. # 22 at 15-18). The
Magistrate Judge concluded that any ex post facto challenge to ASORCNA in Plaintiff’s
Amended Complaint (Doc. # 18) fails and noted that the Eleventh Circuit denied a similar claim
in Windwalker. (Id. at 17-18).
Plaintiff objects to several portions of the Magistrate Judge’s analysis of his ex post facto
challenge. According to Plaintiff, ASORCNA is a punitive statute in intent and effect because it
(1) provides for lifetime “probation,” (2) obligates a listed offender to report in person to a
government official, (3) obligates an offender to pay fees, (4) requires an offender to notify the
government of address changes, (5) subjects an offender to unannounced visits, and (6) limits
where a registered individual can live and work. (Doc. # 24 at 4). He claims that ASORCNA is
intended to inflict public humiliation, which is a historical means of punishment. (Id. at 5). He
contends that ASORCNA is punitive because several of its provisions are more restrictive than
In a later, unpublished opinion, the Eleventh Circuit held that ASORCNA did not violate a plaintiff’s
alleged fundamental rights to privacy, housing, employment, free travel and movement, freedom from interference
in religious practices, and freedom from threats and harassment. Windwalker, 579 F. App’x at 773-74.
Alabama’s conditions of probation. (Id. at 6). These objections are reiterated in Plaintiff’s
objections to the Report and Recommendation. (See Doc. # 26 at 4-9).
The court finds no error in the Magistrate Judge’s analysis of Plaintiff’s ex post facto
claim. As the Magistrate Judge stated, the Alabama Legislature did not enact ASORCNA for a
punitive purpose; rather, it enacted ASORCNA to protect the public and promote child safety.
(Doc. # 22 at 16) (citing Ala. Code § 15-20A-2(5) and Smith, 538 U.S. at 93). And, the statute is
not so punitive that it negates the Alabama’s Legislature’s intent to enact a non-punitive statute.
(Id. at 17-18) (citing Windwalker, 579 F. App’x at 772). Importantly, ASORCNA is rationally
related to the non-punitive purpose of promoting public safety. Windwalker, 579 F. App’x at
In his motion to amend and his objections to the Report and Recommendation, Plaintiff
analogizes portions of ASORCNA to traditional punishments of probation, fines, and public
shaming. (See Docs. # 24 at 4-5; 26 at 5, 7). One of the primary factors for determining whether
a regulatory provision is so punitive that it negates the state’s intent to enact a civil statute is
whether it uses means that have been considered punitive in our nation’s history. Smith, 538
U.S. at 97. In a recent comprehensive opinion analyzing ASORCNA, the Middle District of
Alabama concluded that ASORCNA’s regulatory regime does not resemble traditional
punishments of public shaming, probation, or fines. McGuire v. Strange, 83 F. Supp. 3d 1231,
1253-57 (M.D. Ala. 2015). The regulatory regime in ASORCNA does not resemble public
shaming because it disseminates accurate and public information about an offender’s criminal
record and does not create direct confrontations between the offender and the public. Id. at 1254.
ASORCNA’s regulatory regime does not resemble probation because it does not involve direct
supervision by a government official,3 any violations of ASORCNA are punished through
separate criminal prosecutions from the original offense, and a registrant receives a new criminal
trial before being punished for violating ASORCNA. Id. at 1255-56. Finally, the $10 quarterly
registration fee in ASORCNA is not similar to a fine because it is assessed to “offset the costs of
the regulatory scheme.” Id. at 1256-57. The court concurs with the McGuire opinion’s analysis
of this issue and concludes that the registration scheme is not comparable to historical
punishments. Cf. Smith, 538 U.S. at 97 (acknowledging an appellate court’s determination that
sex offender registry statutes are not traditional means of punishment because they are relatively
recent legal innovations).
Overall, “the court finds that [Plaintiff] has not shown by the clearest proof that
ASORCNA’s scheme as a whole is so punitive either in purpose or effect as to negate the
Legislature’s stated nonpunitive intent.”4 McGuire, 83 F. Supp. 3d at 1269 (finding, after a trial
on the merits of a similar ex post facto claim, that almost all provisions in ASORCNA are not
punitive). The Magistrate Judge’s recommendation that the court dismiss any ex post facto claim
in Plaintiff’s amended complaint is due to be accepted.
In his objections to the Report and Recommendation, Plaintiff claims for the first time that an officer was
assigned to him after he registered under ASORCNA. (Doc. # 26 at 7). He does not allege, however, that the
officer possessed discretionary authority over his activities or that the officer monitored him as a probation officer
would have. Indeed, Plaintiff’s complaint states that the officer questioned him because the Madison County
Sheriff’s Office believed that Plaintiff had provided a false address. (Doc. # 18 at 6). In any event, Plaintiff points
to no provision of ASORCNA that requires law enforcement officers to be assigned to registered sex offenders.
The court recognizes that McGuire invalidated two provisions of ASORCNA as violations of the ex post
facto clause, to the extent those provisions applied to individuals convicted of sex offenses before 2011. 83 F. Supp.
3d at 1269-70. The invalidated provisions were: (1) a requirement that a homeless registrant living within a
municipality complete two in-person weekly registrations with a county sheriff’s office and a municipality’s police
office, and (2) a requirement that a registrant living within a municipality complete two travel permit applications
with a county sheriff’s office and a municipality’s police office before travelling out of the jurisdiction for more than
three days. See id. Throughout this action, Plaintiff has sought to challenge the constitutionality of the entire
ASORCNA registration scheme and has not limited his claims to the specific provisions invalidated in McGuire.
Plaintiff’s Double Jeopardy Claim is Due to be Dismissed
In his objections, Plaintiff reiterates that ASORCNA violated his double jeopardy rights.
(Doc. # 26 at 6). Nevertheless, he acknowledges that a state court imposed criminal punishments
on him for violating ASORCNA after separate criminal proceedings. (Id.). Cf. Parker v. King,
2008 WL 901087, at *19 (M.D. Ala. Mar. 31, 2008) (determining that Alabama’s prior sex
offender registry statute did not “implicate double jeopardy” because a sex offender received “a
separate prosecution for violation of the Act’s registration provisions”). And, as discussed
above, ASORCNA’s registration scheme did not impose criminal punishment on Plaintiff for his
pre-2011 sexual abuse conviction. Accordingly, the court concurs with the Magistrate Judge’s
recommendation to dismiss this claim.
Analysis of Plaintiff’s Motion to Amend the Complaint
Plaintiff has requested leave to amend his complaint to include a claim challenging the
constitutionality of ASORCNA. (Doc. # 24 at 3-7). Plaintiff’s proposed claim is a mélange of
substantive due process and ex post facto challenges to ASORCNA. (See id.).
Plaintiff’s request for leave to amend the complaint is due to be denied as futile because
he has not cured the deficiencies the Report and Recommendation identified in the amended
complaint. Cf. Bryant, 252 F.3d at 1163. For the reasons explained above, Plaintiff’s proposed
claim fails to allege a plausible substantive due process claim or a plausible ex post facto claim.
Such constitutional challenges to ASORCNA have been considered and rejected by the Eleventh
Circuit. See Windwalker, 579 F. App’x at 771-74. Plaintiff’s motion to amend does not present
one of the two ex post facto claims for which the Middle District of Alabama granted relief in
McGuire. Cf. 83 F. Supp. 3d at 1269-70 (determining that two provisions of ASORCNA were
punitive in nature to the extent that they imposed duplicative requirements on registrants).
Finally, the court has already granted Plaintiff one opportunity to amend his complaint. (Doc. #
16 at 2). Accordingly, the court finds that any amendment to Plaintiff’s complaint would be
futile, and his motion to amend is therefore due to be denied.
After careful consideration of the record in this case, the Magistrate Judge’s Report and
Recommendation (Doc. # 22), and Petitioner’s objections thereto (Docs. # 24-26), the Magistrate
Judge’s Report and Recommendation is due to be adopted.
The Magistrate Judge’s
recommendation that this action be dismissed without prejudice for failing to state a claim upon
which relief can be granted is due to be accepted. Finally, Plaintiff’s motion to amend the
complaint (Doc. # 24) is due to be denied.
A separate order in accordance with the
Memorandum Opinion will be entered.
DONE and ORDERED this April 10, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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