Waldman v. Thomas et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/2/2015. (AVC)
2015 Dec-02 PM 04:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ADAM KEITH WALDMAN,
COMMISSIONER KIM THOMAS )
Case No.: 5:13-CV-2322-VEH-JEO
This is a pro se prisoner case brought pursuant to 42 U.S.C. § 1983. (Doc. 1-1).
The plaintiff is currently incarcerated at Limestone Correctional Facility in Harvest,
Alabama. (Id. at 6). The plaintiff names as defendants Alabama Department of
Corrections (“ADOC”) employees in their individual and official capacities: Prison
Commissioner Kim Thomas, employees as defendants in their individual and official
capacities: Prison Commissioner Kim Thomas, Director of Classification Cassandra
Conway, Assistant Director of Classification Amanda Baggett, Classification Specialist
Mrs. Cooley and Captain Butler. (Id.). For relief, he seeks a jury trial, a declaration that
the defendants violated his federal and state constitutional rights, compensatory and
punitive damages, and an injunction ordering the defendants to “stop labeling and
branding [him] as a sex offender, and remove the “S” suffix from his [inmate] number.”
(Id. at 10).
In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1),
the amended complaint was referred to a magistrate judge for a preliminary report and
recommendation. See McCarthy v. Bronson, 500 U.S. 136 (1991). In accordance with
the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321,
and 28 U.S.C. § 1915A, the magistrate judge screened the plaintiff’s amended
complaint and, on May 1, 2015, sua sponte recommended dismissal of the complaint
for failure to state a claim upon which relief can be granted. (Doc. 14, R&R). On June
10, 2015, the plaintiff filed objections to that Report and Recommendation. (Doc. 17)
(“Objections”). Also on that date, he filed a Motion for Leave To Amend Complaint
(Doc. 18) (the “Amend Motion”) and a proposed Amended Complaint (doc. 19).
The court will first address the plaintiff’s Objections. Then, it will address his
DISTRICT COURT REVIEW OF REPORT AND RECOMMENDATION
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th
Cir.1982)).1 The district judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
Id.. This requires that the district judge “give fresh consideration to those issues to
which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 512 (11th Cir. 1990) (citation omitted).
In contrast, those portions of the R & R to which no objection is made need only
be reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x. 781, 784 (11th Cir.
“Neither the Constitution nor the statute requires a district judge to review, de
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the
former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982); see also
United States v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir.2009) (discussing the continuing
validity of Nettles).
Macort dealt only with the standard of review to be applied to a magistrate's factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S.
Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a
clear-error standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga.
2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which
distinguishes between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991)
(when a magistrate's findings of fact are adopted by the district court without objection, they are
reviewed on appeal under a plain-error standard, but questions of law remain subject to de novo
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation omitted). It
is incumbent upon the parties to timely raise any objections that they may have
regarding a magistrate judge’s findings contained in a report and recommendation, as
the failure to do so subsequently waives or abandons the issue, even if such matter was
presented at the magistrate judge level. See, e.g., U.S. v. Pilati, 627 F.3d 1360 at 1365
(11th Cir. 2010) (“While Pilati raised the issue of not being convicted of a qualifying
offense before the magistrate judge, he did not raise this issue in his appeal to the
district court. Thus, this argument has been waived or abandoned by his failure to raise
it on appeal to the district court.”). However, the district judge has discretion to
consider or to decline to consider arguments that were not raised before the magistrate
judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also Williams
v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n. 8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge's consideration of the matter and
would not help to relieve the workload of the district court.” Id. (quoting United States
v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
PLAINTIFF’S OBJECTIONS TO THE R&R
Jurisdiction of Magistrate Judge
Plaintiff argues that the magistrate judge did not have subject-matter jurisdiction
to issue a report and recommendation in his case because:
No Article III Judge gave the plaintiff notice prior to designating
Magistrate Ott to serve as a special master in this case and afforded the
plaintiff the opportunity to object.
28 U.S.C. § 636(b)(1)(A) as applied and utilized by this Court
Constituted rights as guaranteed him by Article III of the United States
Constitution in that the Article III Judge, without any prior notice to the
plaintiff, desihnated [sic] a Magistrate to hear and determine his case.
Subsequently, pursuant to 28 U.S.C. § 636(b)(2) and (1) the plaintiff is
served with a form to consent to the Magistrate who has already been
deligated [sic] which is essentially worthless because the Magistrate has
already been deligated [sic] to his case and the Article III Judge is not
about to remove him from the case, even absent the plaintiff's consent.
The plaintiff has never consented, and will never consent for his case to
be delegated or assigned to a Magistrate.
Article III confers upon the plaintiff a personal right to have his case
heard by an Article III Judge. ***
(Doc. 17 at 3).
The district court has statutory authority to delegate non-dispositive pretrial
matters to a magistrate judge for determination. See 28 U.S.C. § 636(b)(1)(B).3 The
district court need not obtain the consent of the parties before assigning these matters
to a magistrate judge. 28 U.S.C. § 636(b)(1)(A)-(C). The undersigned is an Article III
judge and will issue the final determination in this case after a de novo review.
Therefore, plaintiff’s objection to the jurisdiction of the magistrate judge to issue the
R&R is OVERRULED as frivolous.
Plaintiff’s Factual Objections
The plaintiff has objected to the magistrate judge’s statement that “[t]he plaintiff
admits he was convicted of kidnapping.” (Doc. 17, p. 8 at ¶ 5). However, he then goes
on state that “he was found guilty, he did not admit to the offense in a guilty plea, but
was found [guilty] by a jury trial of [the offense] of kidnapping.” Being found guilty by
a jury trial is a conviction. Thus, the plaintiff has admitted and still admits that he was
“convicted of kidnapping.” This objection is OVERRULED as frivolous.
The plaintiff next “objects” (Doc. 17, p. 8 at ¶ 6) to the magistrate judge’s
Section 636(b)(1)(B) provides in pertinent part:
a judge may also designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial relief made by individuals convicted of
criminal offenses and of prisoner petitions challenging conditions of confinement.
28 U.S.C. § 636(b)(1)(B) (2009) (footnote omitted).
statement that “[t]he plaintiff admits he was convicted of ‘[k]idnapping ... a minor, who
was under the age of twelve.” (Doc. 14, p.4)(alterations in original). Plaintiff states
that, “[o]n page 4 ... clearly shows that there is no mention of a child under the age of
12 years old.” (Doc. 17, p. 8 at ¶ 6). The undersigned agrees that the plaintiff did not
admit that he was convicted of kidnapping a minor who was under the age of 12.
Further, he did not necessarily admit that fact when he admitted that he was convicted
of “Kidnapping First Degree.”4 However, he did state "The classification wants to
punish the plaintiff even more for the conviction of [k]idnapping of a minor, who was
under the age of twelve." (Doc. 1-1 at 8). Thus, it is the plaintiff who has informed this
court of the age of his kidnapping victim. Further, he has never denied that his victim
was a minor who was under the age of twelve. Nor has he alleged that he was the
child's parent or guardian.5 Even in his objections, when he gives the details of his
§ 13A-6-43, Code of Alabama (1975) provides:
(a) A person commits the crime of kidnapping in the first degree if he abducts another
person with intent to
(1) Hold him for ransom or reward; or
(2) Use him as a shield or hostage; or
(3) Accomplish or aid the commission of any felony or flight therefrom; or
(4) Inflict physical injury upon him, or to violate or abuse him sexually; or
(5) Terrorize him or a third person; or
(6) Interfere with the performance of any governmental or political function.
There is nothing in this statute that references the age of the victim.
The Alabama Sex Offender Registration and Community Notification Act
(“ASORCNA”) at Code 1975 §§ 15-20A-1 to 15-20A-48. Section 15-20A-5(18) states that
individuals who are convicted of "[k]idnapping of a minor, except by a parent, guardian or
custodian, as provided by section 13-6-43 or 13-6-44" are sex offenders.
crime, he states:
The plaintiff was in the Navy and stationed in Pensacola Florida, when he
meet [sic] a woman that [sic] they started dating. Once dating she
introduced him to Meth and he spent all he had to keep her and him doing
this drug. Then he decided to go back to Virgina [sic] to visit his family,
when he left, he left her a lot of money. Upon his return to Florida, she
had left and taken all his money. At this time the plaintiff went looking for
her and found her, she lied to him and said that she did not have his
money. He found out that she was married and had a kid. He approached
her again and demanded his money, she would not give his money to him.
Without rational thinking the plaintiff went to the day care where her son
was and retrived [sic] him and then called her and she said she would
come up with the money. Daycare called the cops, there was a pursuit and
the plaintiff recked [sic] his truck without injuring the kid. The plaintiff
left the kid in his stuck truck that was in a ditch, so that he would be safe
for the police to find him. The plaintiff never touched him in any sexual
manner, and did not threaten him in no [sic] sexual manner, this was all
proved at trial. The plaintiff was not found guilty of a sex offense of any
(Doc. 17 at 7)(emphasis by underlining supplied; emphasis in bold in original).
Thus, the undersigned agrees that the offense that the plaintiff was convicted of
did not include as an element any sexual contact between the plaintiff and his victim.
The magistrate judge’s R&R reflects only that it was the plaintiff who told this court
that he was convicted of kidnapping first degree and that his victim was a minor under
the age of twelve. (See Doc. 1-1 at 8)("The classification wants to punish the plaintiff
even more for the conviction of [k]idnapping of a minor, who was under the age of
twelve.") (Doc. 1-1 at 8). And, as explained above, he has never denied the age of the
victim or claimed that he was the victim’s parent, guardian, or custodian. Thus, under
Section 15-20A-5(18) of ASORCNA, he is a “sex offender.”
The plaintiff’s objection to the magistrate judge’s finding that his own words
provide the necessary facts to show that he is a sex offender for purposes of
ASORCNA are OVERRULED. To the extent that the plaintiff objects that he was not
convicted of a sex offense, that objection is due to be SUSTAINED.
Magistrate Judge’s Finding that Plaintiff’s Claims Are Not Ripe
In the R&R, the magistrate judge recommended “that the plaintiff’s federal
constitutional claims be DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) and/or (2)
... and that jurisdiction over the plaintiff’s state law claims be DECLINED.” (Doc. 14
at p. 14)(emphasis in original). Specifically, the magistrate judge considered that
“[t]he plaintiff may be attempting to challenge § 15-20A-5 of the ASORCNA6
Effective July 1, 2011, Alabama replaced its prior sex offender registry law, the Alabama
Community Notification Act (CNA), Ala.Code § 15–20–20, et seq. (1975), with the Alabama Sex
Offender Registration and Community Notification Act (ASORCNA), Ala.Code § 15–20A–1, et
seq. (1975, as amended). A person subject to ASORCNA must register as a sex offender with the
Alabama Department of Public Safety (DPS), id. § 15–20A–7; must register with local law
enforcement, pay a registration fee, and abide by certain reporting requirements, id. § 15–20A–10
& § 15–20A–22; is subject to residency, travel, and employment restrictions, id. §§
15–20A–11,–13, & –15; and is subject to community notification requirements, id. § 15–20A–21.
In addition, ASORCNA requires that the offender carry identification. Id. § 15–20A–18. Further,
an adult sex offender cannot establish or maintain a residence or maintain employment within
2,000 feet of a school. Id. §§ 15–20A–aa(a) (residence) & 15–20A–13(b) (employment).
However, exceptions are possible in some instances. Id. § 15–20A–11(f) (residence) & §
15–20A–25(a) (employment). An “adult sex offender” (i.e. an adult who has been convicted of a
sex offense) is subject to ASORCNA's requirements for life. Ala.Code §§ 15–20A–3(b),
as being unconsitutionally ‘vague’ and ‘a violation of [his] liberty interest’
because he is ‘being labeled and branded as a sex offender without being found
guilty of a sex offense or even charged for a sex offense.’ He also declares § 1520A-5 violated his right to due process and equal protection, constitutes cruel
and unusual punishment and violates ‘ex post facto laws.’”
(Doc. 14 at p. 6) (internal citations omitted)(bracketed alteration in original).
The magistrate judge noted that “[t]he plaintiff’s three convictions, including the
kidnapping conviction, occurred in 2005. He is serving two life sentences and a ten
year sentence as a result of those convictions. There is no indication that a release date
has been set for the plaintiff.” (Doc. 14 at p. 7)(internal citations omitted). Relying on
U.S. v. Veal, 322 F.3d 1275 (11th Cir. 2003), which in turn relied on Kirby v.
Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999), the magistrate found that, “‘[I]nsofar
as [the plaintiff] seeks to challenge the constitutionality’ of the registration and
notification requirements of ASORCNA, his claims are not ripe for review.” (Doc. 14
at p. 7)(citing U.S. v. Veal, 322 F.3d at 1278).
The undersigned has found no objection by the plaintiff to this characterization
of the facts or of his claims. Rather, he has objected to the magistrate judge’s
conclusion that, under controlling law, he faces no hardship from denying review of his
claim because “he was ‘not going anywhere and his prior arrest and conviction record
is not going to change,’ and (2) the claim was not fit for review because whether the
statute at issue would remain in effect and unamended until the plaintiff’s release from
custody was a matter of speculation.” (Doc. 14 at 7, citing Veal, 322 F.3d at 1278,
quoting Kirby v. Siegelman, 195 F.3d at 1290.) The undersigned agrees with plaintiff
that the magistrate judge has misapplied the law in finding that plaintiff’s claims are not
The magistrate judge relied on U.S. v. Veal, 322 F.3d 1275 (11th Cir. 2003) and
Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999), in reaching his determination that
plaintiff’s claim was not ripe. However, the magistrate judge applied the holding of
Kirby in a manner that is the opposite of what Kirby stands for. Thus, an analysis of
Kirby is necessary here.
In Kirby, the Eleventh Circuit decided two consolidated appeals by two different
defendants: Kirby and Edmond. Kirby and Edmond each had sued (separately) under
42 USC § 1983, challenging Alabama's Community Notification Statute (“the Act”),
Ala. Code § 15–20–20. The relevant facts and procedural history of these consolidated
cases were explained by the Court as follows.
These cases, consolidated for appeal, involve challenges to Alabama's
Community Notification Statute (“the Act”), Ala.Code § 15–20–20. Appellant
Jeffery Powell Kirby appeals the district court's dismissal of his claims that the
Act violates the Ex Post Facto and Double Jeopardy Clauses of the United States
Constitution. The district court dismissed the complaint for failure to state a
claim upon which relief may be granted because it determined that Kirby's claim
was not ripe. Appellant Edmond appeals the district court's grant of summary
judgment as to his claims that Defendant Alabama Department of Corrections
and its employees violated his constitutional rights by classifying him as a sex
offender although he has never been convicted of a sex offense. The district
court granted summary judgment because it determined that Edmond did not
establish an equal protection claim or a due process violation. Further, the
district court determined that Edmond's challenge to the Community Notification
Statute was not ripe. For the reasons set forth below, we affirm the district court
as to Kirby because his claim is not ripe. We reverse the district court as to
Edmond's due process claim because we find that Edmond's classification as a
sex offender implicates a liberty interest under the Due Process Clause. We
remand the case to the district court because the record is inadequate for us to
determine whether he received adequate notice and hearing to satisfy due
process requirements. We affirm the district court as to Edmond's remaining
I. FACTS AND PROCEDURAL HISTORY
Kirby is an inmate in custody of the Alabama Department of Corrections
(“ADOC”). He is serving a 15 year sentence for first-degree sodomy. Kirby filed
the present action under 42 U.S.C. § 1983 claiming that the Act violates the Ex
Post Facto and Double Jeopardy Clauses of the United States Constitution.
Additionally, Kirby alleged that he was denied parole due to the Act, and that
this violated the Due Process and Equal Protection Clauses. Kirby's conviction
for first-degree sodomy constitutes a sex offense as defined by the Act.
Ala.Code § 15–20–20, et seq. (1975). As a convicted sex offender, the Act
applies to Kirby upon his release from prison. The Act provides for notification
of victims and neighbors of a criminal sex offender thirty days prior to his
release from custody. Because Kirby is not scheduled for release until 2005, the
district court adopted the Magistrate Judge's recommendation and found that
Kirby has not yet suffered an injury from the Act. Accordingly, the court
dismissed Kirby's claim as not ripe for adjudication.
Edmond is an inmate incarcerated by the ADOC. He is serving a 20 year
sentence for attempted murder. He filed the present action under 42 U.S.C. §
1983 against ADOC Commissioner Joe Hopper, Deputy Commissioner John
Shaver, and other ADOC officials claiming that he was unlawfully classified in
prison as a sex offender despite never having been convicted of a sex offense.
Edmond first claims this classification violates his equal protection rights
because sex offenders are treated differently in prison. Second, he claims the
classification violates his due process rights because he was labeled a sex
offender without being convicted of any sex crimes. Third, he alleges the
classification violates his right against self-incrimination because he is forced to
admit past behavior in sex offender classes. Finally, Edmond contends his
classification will improperly subject him to Alabama's Community Notification
Act after his release from prison.
ADOC classified Edmond as a sex offender based on two previous sex-related
charges listed in his PreSentence Investigative Report (“PSI”). In 1984, he was
charged with rape. The charge was no billed by the grand jury. In 1992, a charge
of sexual abuse was nolle prossed in the trial court. According to ADOC Deputy
Commissioner John Shaver, these two sex charges, even without a conviction,
support Edmond's classification as a sex offender under ADOC guidelines.
Shaver also stated that prison classification officials received details from the
Russell County District Attorney's Office reflecting sexual abuse and kidnaping
in Edmond's prior history. Shaver contends this prior history denotes a pattern
of behavior further justifying the sex offender classification.
As a consequence of being classified as a sex offender, Edmond must participate
in group therapy sessions of Sexual Offenders Anonymous as a prerequisite for
parole eligibility. The sessions meet three times a week at the prison and involve
participants admitting past sexual offenses. Edmond contends this requirement
violates his right against self-incrimination. Additionally, being classified as a
sex offender makes Edmond ineligible for minimum custody classification.
Prisoners in minimum custody are eligible for certain work-release programs and
community custody programs. Moreover, Edmond contends his classification as
a sex offender imposes a stigma that amounts to a significant hardship in relation
to the ordinary incidents of prison life. Edmond contends he received neither
notice nor opportunity to be heard prior to being classified as a sex offender.
Defendants contend that Edmond had an opportunity to be heard through his
annual classification review, and that he will be eligible for minimum custody.
On Defendants' motion, the district court adopted the recommendation of the
Magistrate Judge and granted summary judgment to Defendants on all claims.
The court determined that Edmond did not establish an equal protection violation
because he did not allege that the different treatment was based on race, religion,
or another constitutionally protected interest. As to Edmond's due process claim,
the court granted summary judgment because ADOC regulations clearly provide
for sex offender classification for inmates with two or more arrests for sex
crimes regardless of the disposition of those claims. The court found that
Edmond's claim regarding his mandatory participation in the sex offender
treatment program was meritless because any admission of guilt required by the
program would be privileged communication not subject to disclosure in a
judicial proceeding. Finally, the court found that Edmond's challenge of
Alabama's notification statute was not ripe because Edmond has not been
released from custody.
Kirby v. Siegelman, 195 F.3d 1285, 1287-89 (11th Cir. 1999)(footnotes omitted;
Like Edmond, the plaintiff in this case was not “convicted of” a sex crime.
Rather, he was convicted of a crime - Kidnapping first degree - that caused him to be
classified by the Alabama Department of Corrections as a “sex offender.” In Kirby, the
Eleventh Circuit held that “Edmond does have a liberty interest in not being branded
a sex offender. *** Even after Edmond's conviction for attempted murder, he retains
a ‘residuum of liberty’ that would be infringed by classification as a sex offender
without complying with minimum requirements of due process.” Kirby v. Siegelman,
195 F.3d 1285, 1291 (11th Cir. 1999) (internal citations omitted).
Here, plaintiff has complained of just such an infringement of due process.
Accordingly, unless Kirby v. Siegelman is no longer good law, the magistrate judge
erred in recommending dismissal of plaintiff’s due process claim for lack of ripeness.
As stated above, the magistrate judge relied on U.S. v. Veal to support his
recommendation that plaintiff’s claims are due to be dismissed for lack of ripeness.
However, under the prior precedent rule,7 U.S. v. Veal could not abrogate Kirby v.
Siegelman. Further, as explained by the Eleventh Circuit, its holding in U.S. v. Veal is
consistent with Kirby v. Siegelman, because Veal was convicted of a sex offense,
whereas Kirby was not convicted of a sex offense. See U.S. v. Veal, 322 F.3d at 1278
(“Our holding in Kirby, that an inmate who was never convicted of a sex offense must
be afforded due process prior to being classified as a sex offender, is inapplicable here
because, unlike the inmate in Kirby, Veal was convicted of a sex offense.”)
The portion of Veal quoted by the magistrate judge in holding that plaintiff’s
claims, including his due process claim, are due to be dismissed as not ripe, discusses
the portion of Kirby that dealt with the claims of the defendant who had been convicted
of a sex offense — Kirby.8 However, plaintiff here is not like Kirby, who was
Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997) (“The law of this circuit is
‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially overrule a prior
panel decision.”), cert. denied, 523 U.S. 1080, 118 S.Ct. 1529, 140 L.Ed.2d 680 (1998); United
States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (“[I]t is the firmly established rule of this
Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of
law, unless and until that holding is overruled en banc, or by the Supreme Court.”).”
See Doc. 14 at 7, where the magistrate judge quoted Veal’s discussion at 1278 of Kirby
In Kirby [v. Siegelman, 195 F.3d at 1290, the Eleventh Circuit] concluded that the plaintiff’s
convicted of a sex offense – sodomy; rather, he is like Edmond, in that neither Edmond
nor plaintiff has been “convicted of” a sex offense.
Under binding Eleventh Circuit case law, plaintiff’s due process claim is ripe.
Accordingly, the plaintiff’s objection to the recommendation that it be dismissed as not
ripe is SUSTAINED.
Magistrate Judge’s Findings on Federal Constitutional Challenges
A. Plaintiff’s Procedural Due Process Claim.
The magistrate judge again relied on the wrong portion of Kirby v. Siegelman–
the portion that applied to Kirby, who had been convicted of a sex offense, as opposed
to the portion that applied to Edmond, who is similarly situated to the plaintiff in that
Edmond had not been convicted of a sex offense — in finding that plaintiff had not
cognizably pled a liberty interest. Doc. 14 at 8-9. Because Kirby v. Siegelman held that
“an inmate who was never convicted of a sex offense must be afforded due process
prior to being classified as a sex offender”, U. S. v. Veal, 322 F.3d at 1278, the
magistrate judge erred in finding that plaintiff’s federal due process challenge to his
challenge to the constitutionality of Alabama’s Community Notification Act was not ripe for
review because the Act would not affect him until his release from custody. . . . See id.
(concluding that (1) the plaintiff faced no hardship from denying review of his claim because
he was “not going anywhere and his prior arrest and conviction record is not going to
change,” and (2) the claim was not fit for review because whether the statute at issue would
remain in effect and unamended until the plaintiff’s release from custody was a matter of
ADOC “S” suffix classification did not state a cognizable due process claim.
Accordingly, plaintiff’s challenge to the magistrate judge’s recommendation that
plaintiff’s procedural due process claim be dismissed is due to be SUSTAINED.
B. Plaintiff’s Substantive Due Process Claim.
The magistrate judge stated that “The plaintiff argues the ADOC’s sex offender
classification manual is unconstitutionally vague in its inclusion of the type of
kidnapping conviction he has as a sex offense. Such an assertion appears to be an
attempt to make a substantive due process claim.” (Doc. 14 at 9)(internal citation
omitted).9 Plaintiff responds that he “never argued the substantive due process issue....”
(Doc. 17 at 14). He then goes on to state, “But, since the Magistrate has asserted this
issue the plaintiff will argue it.” (Id.).
Ordinarily, the undersigned would decline to consider an objection to an R&R
on an issue that the objecting party admits he “never argued.” Williams v. McNeil, 557
F.3d 1287, 1291 (11th Cir. 2009), cert. denied, --- U.S. ----, 129 S.Ct. 2747, 174
L.Ed.2d 249 (2009)(holding that the “district court did not abuse its discretion in
declining to consider [Section 2254 petitioner’s] timeliness argument that was not
In this subsection of the R&R, entitled “Substantive Due Process,” the magistrate judge
discusses substantive due process as it applies to ASORCNA and the ADOC Sex Offender
Classification Manual, finds them both to be “rationally related to legitimate government
interests” and “not unconstitutionally vague,” but then confusingly states that “plaintiff cannot
establish his right to procedural due process was violated.” (Doc.14 at 10-11).
presented to the magistrate judge.). However, where, as here, the plaintiff has a
pending motion for leave to amend his complaint and a proposed amended complaint
asserting the very issue (albeit for the first time), the undersigned will consider
plaintiff’s objection as it will bear on the court’s decision whether to allow the
The court agrees with the magistrate judge that no court has found ASORCNA
to violate substantive due process. Indeed, the most authoritative decision, that of the
Eleventh Circuit in the unpublished decision of Windwalker v. Governor of Alabama,
579 F. App'x 769, (11th Cir. 2014), in which that court expressly rejected the plaintiff’s
substantive due process claim. Windwalker, 579 F. App'x at 773. Additionally, the
undersigned has found no case that has called Windwalker into question on this issue.
However, the court notes that, unlike plaintiff in this case, the plaintiff in Windwalker
was convicted of a sex offense. (Id. at 771)(“Windwalker was convicted in Florida in
1985 for having oral sex with a child under 12.”). See also Pittman v. Strange, No.
CIV.A. 12-00667-CB-M, 2014 WL 4685536, at *1 (S.D. Ala. Sept. 22, 2014)(finding
Windwalker persuasive on issue that ASORCNA is not punitive in Section 1983 action
brought by a convicted sex offender.).
A recent non-binding but persuasive opinion that is factually on point is Collins
v. Thomas, No. 212-CV-950-WHA, 2015 WL 5125750, at *6-7 (M.D. Ala. Aug. 31,
2015). In that case, Collins, a prisoner incarcerated by the Alabama Department of
Corrections, brought a Section 1983 action alleging that correctional officials violated
his constitutional rights with respect to his internal classification “ ‘as a sex offender
even though he had never committed a sex offense and had never been convicted of a
sex offense....’ ” Id., 2015 WL 5125750, at *1. That is what Waldman has alleged in
this action. Like Waldman, Collins sought monetary damages, issuance of a declaratory
judgment and injunctive relief “restraining the defendants from branding [him] with the
‘S' suffix and/or labeling [him] as a criminal sex offender and ... ordering the defendants
to [immediately] expunge all of the same from [his] files....” Id. Also like Waldman,
Collins had been convicted, not of a “sex offense,” but of kidnapping children that he
was not the parent or guardian of the children and did not have legal custody of the
children. (See id. *4). And, like Waldman, “[u]nder these circumstances, Alabama law
identifie[d] Collins [as] a sex offender” (id.) and the Alabama Department of
Corrections affixed the “S” suffix to his file. (Id.).
Like the court in Collins, the court is persuaded by Windwalker, and by this
court’s own analysis of the law regarding substantive due process, that such a
classification action does not violate substantive due process. The Eleventh Circuit has
stated that it “is very reluctant to expand substantive due process by recognizing new
fundamental rights[.] Doe v. Moore, 410 F.3d 1337, 1342–1343 (11th Cir.2005). And,
as the Collins court stated:
“[T]he Supreme Court has not addressed whether substantive due process
invalidates sex offender registration statutes [or classification policies based
thereon], ... and [the Eleventh Circuit has found] no history or tradition that
would elevate the issue here to a fundamental right. In fact, the case law ... found
supports the contrary conclusion.” Id. at 1345 (citation omitted); Windwalker v.
Governor of Alabama, 579 Fed. Appx. 769, 773–774 (11th Cir.2014) (The
plaintiff's substantive due process claim provides no basis for relief because “in
the context of a regulation [specifically] designed to protect the public from sex
offender recidivism, none of [the plaintiff's] asserted rights are so ‘deeply
rooted’ in this Nation's history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.' ”). This determination is equally applicable to the Classification
Manual adopted by the Alabama Department of Corrections, a manual which
utilizes the ASORCNA to define a sex offender. “When a statute [or regulation]
does not implicate fundamental rights, we must ask whether it is ‘rationally
related to legitimate government interests .’ Glucksberg, 521 U.S. at 728, 117
S.Ct. at 2271. The rational basis standard is ‘highly deferential’ “ and courts
deem statutes or regulations “unconstitutional under a rational basis standard in
only the most exceptional circumstances. Williams v. Pryor, 240 F.3d 944, 948
(11th Cir.2001).” Doe v. Moore, 410 F.3d at 1345.
*7 The purpose of the ASORCNA “is to assist law enforcement in
carrying out their duties and, most importantly, to protect the public, especially
children ” and “further[ ] the primary governmental interest of protecting
vulnerable populations, particularly children,” by “monitoring and tracking”
individuals convicted of sex offenses as defined by state law. Ala.Code §
15–20A–2(4) and (5) (emphasis added). “The ... intent in imposing certain
[restrictions] on sex offenders is not to punish sex offenders but to protect the
public and, most importantly, promote child safety.” Ala.Code § 15–20A–2(5)
(emphasis added). Alabama law provides that a sex offender is “[a]n adult
convicted of a sex offense.” Ala.Code § 15–20A–4(1). The ASORCNA includes
in its list of qualifying sex offenses the kidnapping of a minor when the
perpetrator is not the minor's parent, guardian or legal custodian. See Ala.Code
§ 15–20A–4(14) and § 15–20A–5(18). The precise offense for which Collins
In light of the foregoing, the court finds that the ASORCNA is not
violative of substantive due process. Consequently, the provision of the
Classification Manual which utilizes the ASORCNA's definition of a sex
offender for internal classification purposes does not deprive Collin[s] of
substantive due process violation.
Collins v. Thomas, 2015 WL 5125750, at *6-7.
Like the court in Collins, the undersigned finds Windwalker persuasive in its
analysis of ASORCNA in the face of a substantive due process challenge, such as the
one asserted in plaintiff’s Objections (doc. 17) and in his proposed Amended
Complaint (doc. 19). Accordingly, plaintiff’s objections to this portion of the R&R are
due to be OVERRULED.
C. Plaintiff’s Ex Post Facto Claim.
Turning again to Windwalker, which persuasively found ASORCNA to be
constitutional, even when applied retroactively, the court finds that plaintiff’s
objections to this portion of the R&R are due to be OVERRULED. See Windwalker,
579 F. App'x at 771-73 (holding that ASORCNA does not violate the Ex Post Facto
Clause and explicating its analysis).
D. Plaintiff’s Cruel and Unusual Punishment/Double Jeopardy Claim.
Windwalker expressly rejected plaintiff’s claim that ASORCNA is criminal
rather than civil. Although plaintiff clearly disagrees (doc. 17 at 23-24), the undersigned
finds Windwalker persuasive on this point as well. Accordingly, the court finds that
plaintiff’s objections to this portion of the R&R are due to be OVERRULED. See
Windwalker, 579 F. App'x 769, 771-73 (holding that ASORCNA is civil rather than
criminal in nature and explicating its analysis).
E. Plaintiff’s Equal Protection Claim.
Windwalker expressly rejected plaintiff’s claim that ASORCNA violates the
equal protection clause. Although plaintiff clearly disagrees (doc. 17 at 24-25), the
undersigned finds Windwalker persuasive on this point as well. Accordingly, the court
finds that plaintiff’s objections to this portion of the R&R are due to be
OVERRULED. See Windwalker, 579 F. App'x at 774 (rejecting equal protection claim
and applying rational basis test).
Magistrate Judge’s Findings on Alabama Constitutional Challenges
As to plaintiff’s claims arising under the Alabama constitution, the magistrate
judge said only:
Claims grounded in the Alabama Constitution
The plaintiff declares his sex offender classification violates various
provisions of the Alabama constitution. However, this court should decline to
exercise jurisdiction over the plaintiff’s state law claims.
(Doc. 14 at 14.)
The “Recommendation” section of the R&R does not provide any additional
information, as it merely states, “The magistrate judge further RECOMMENDS
that jurisdiction over the plaintiff’s state law claims be DECLINED.” (Doc. 14 at
14)(emphasis in original).
Plaintiff has objected to this portion of the R&R by arguing that, because he
is proceeding pro se, his claims should have been construed more liberally than they
were (doc. 17 at 28), and he should be given “at least one chance to amend the
complaint.” (Id. at 29).10 Specifically, because his complaint “mentioned the Article
I, §§ 9 and 10 of the [U]nited [S]tates [C]onstitution along with the Alabama
Constitution Article I, § 22[,] [it should have been] construed that [plaintiff was
arguing the United States Constitution but that the U.S.C. [sic] overrides the
Alabama Constitution.” (Id.). This statement, taken together with the omission of
any claims “grounded in the Alabama Constitution” from plaintiff’s Amended
Complaint (doc. 19), causes the undersigned to find that plaintiff’s objections to this
portion of the R&R are due to be OVERRULED as MOOT.11
THE AMEND MOTION
The court has considered the Amend Motion and the proposed Amended
Because, as set out hereinafter, the undersigned will grant plaintiff’s Amend Motion,
this objection to the R&R is due to be OVERRULED as MOOT.
The Amended Complaint (doc. 19) fleshes out, at “Issue III. Bill of Attainder”, the
claim that plaintiff says the magistrate judge misunderstood or omitted. The undersigned will
address that claim as clarified in the portion of this Memorandum Opinion that addresses the
Complaint. Because the Amended Complaint would be due to be dismissed under
the reasoning set out above, the Amend Motion is due to be DENIED. A district
court is not required to permit a pro se plaintiff to amend his complaint if, inter alia,
“amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, the court is of the opinion that
the magistrate judge’s report is due to be and is hereby ADOPTED in part and
REJECTED in part as set out herein. Specifically, although the undersigned agrees
with plaintiff that his due process claim is ripe, the undersigned finds that it is due to
be dismissed as stating neither a cognizable procedural due process claim nor a
cognizable substantive due process claim. The court further finds that plaintiff’s ex
post fact claim, his cruel and unusual punishment claim, and his equal protection
claim are due to be dismissed as not cognizable. Finally, the court finds that
plaintiff’s state law claims are due to be dismissed as moot. The Court further finds
that plaintiff’s motion for leave to amend his complaint is due to be denied because
the proposed Amended Complaint still fails to state any cognizable claim, and,
accordingly, any such amendment would be futile. The court EXPRESSLY FINDS
that the complaint and the proposed Amended Complaint fail to state any claim for
which relief can be granted. Accordingly, the complaint is due to be DISMISSED
WITHOUT PREJUDICE for failure to state a claim. A Final Judgment Order will
DONE this the 2nd day of December, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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