Guerrero v. Blakely et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS that plaintiff's objections are OVERRULED for the reasons stated herein, the magistrate judge's report is due to be and is hereby ADOPTED, and the recommendation is ACCEPTED; It is therefore ORDERED that plaintiff's motion to amend his request for injunctive relief is DENIED, and all claims against all defendants are DISMISSED pursuant to 28 U.S.C. § 1915A(b), except plaintiff's claim that defendant Gunter deprived him of due pro cess of law when he refused to allow plaintiff to make a post-arrest telephone call for 13 days; It is further ORDERED that plaintiff's claim that defendant Gunter deprived him of due process of law when he refused to allow plaintiff to make a post-arrest telephone call for 13 days is REFERRED to the magistrate judge for further proceedings as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/12/2014. (AHI)

FILED
2014 Sep-12 AM 11:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
PAUL RUDY GUERRERO,
Plaintiff,
vs.
SHERIFF MIKE BLAKELY,
MIKE GUNTER,
and GARY LOVELL,
Defendants.

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Case no: 6:12-CV-1072-CLS-SGC

ORDER
The magistrate judge filed a report and recommendation on July 11, 2014,
recommending that plaintiff’s motion to amend his request for injunctive relief1 be
DENIED. The magistrate judge further recommended that all claims against all
defendants in this action be DISMISSED pursuant to 28 U.S.C. § 1915A(b), with the
exception of plaintiff’s claim that defendant Gunter deprived him of due process of
law when he refused to allow plaintiff to make a post-arrest telephone call for 13 days.
On August 7, 2014, plaintiff filed objections to the report and recommendation.2
In his objections, plaintiff argues that the magistrate judge addressed his claim
of unlawful arrest only as a “Fourth Amendment” claim “against unreasonable
searches and seizures,” and alleges that “[t]he arrest . . . did violate due process . . . as
1

Doc. no. 25.
2
Doc. no. 32.

established by the Fourteenth Amendment.”3 (citing Lambert v. California, 355 U.S.
225, 227-228 (1957) (reversing conviction for violation of California felony
registration law, finding that the law violated the notice requirements of the
Fourteenth Amendment when “applied to a person who has no actual knowledge of
his duty to register, and where no showing is made of the probability of such
knowledge[.]”)).
Plaintiff alleged in his complaint that defendant Gunter’s method of arresting
him was unlawful because Gunter chose to obtain an arrest warrant instead of
affording him an opportunity to register under the Alabama Sex Offender Community
Notification and Registration Act (“ASORCNA” or “the Act”).4 Plaintiff also alleged
that he did not know he was obligated to register under the ASORCNA, and that due
process requires fair notice.5 The magistrate judge construed plaintiff’s claim as one
asserting unlawful arrest and malicious prosecution, actions which are analyzed under
the Fourth Amendment.
Even if these allegations are considered in the context of due process, plaintiff
has failed to state a claim upon which relief may be granted. Plaintiff does not point
to, nor does this court independently find, a provision of ASORCNA that requires a
sex offender to be given specific notice of his obligations to comply with the Act.

3

Id. at 1.
Doc. no. 16 at 4.
5
Id.

4

Moreover, notice of the Act is not an element of the criminal offense with which
plaintiff was charged and to which he pled guilty. See Ala. Code (1975), § 13A-11200.
Although plaintiff suggests that Gunter used “an unreasonable arrest method
. . . upon receiving uncertified information” about two sex convictions to get an arrest
warrant, plaintiff does not explain what he means by that statement, and has never
denied that he was convicted of the two sex offenses.6 Plaintiff does not allege that
Gunter made false statements to achieve the arrest warrant, nor does he contend that
the “warrant w[as] facially [in]valid.” Fullman v. Graddick, 739 F.2d 553, 561 (11th
Cir. 1984). Therefore, plaintiff’s allegations fail to “show that the arrest warrant was
executed in [the absence of] good faith and with[out] probable cause.” Id. (citing
United States v. Leon, 468 U.S. 897 (1984)). Finally, the Fourteenth Amendment
does not require an official “executing an arrest warrant . . . to investigate
independently every claim of innocence . . . based on . . . [for example,] a defense
such as lack of requisite intent.” Baker v. McCollan, 443 U.S. 137, 145–46 (1979)
(alteration supplied).
For the foregoing reasons, plaintiff’s allegations do not implicate any
wrongdoing under the Due Process Clause on the part of defendant Gunter for
obtaining and executing an arrest warrant against plaintiff in connection with his

6

Doc. no. 16 at 3.

failure to register under the Act. Instead, plaintiff’s fair notice due process claim, at
best, raises only the questions of whether the Act itself is unconstitutional per se or
as applied to him. Unlike the defendant in Lambert v. California, who unsuccessfully
objected to the California statute’s lack of fair notice during a jury trial, and whose
unrefuted proof in support thereof was refused, 355 U.S. at 227, plaintiff in this case
pled guilty to the ASORCNA violation against him and presented no defense.
Regardless, because plaintiff’s conviction for failure to register has not been
overturned or expunged by any court, and a ruling in his favor would necessarily
imply the invalidity of his conviction, he “‘may not bring a claim for damages under
42 U.S.C. § 1983[.]’” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (quoting
Heck v. Humphrey, 512 U.S. 477, 487 (1994)) (alteration supplied).
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, plaintiff’s
objections are OVERRULED for the reasons stated herein, the magistrate judge’s
report is due to be and is hereby ADOPTED, and the recommendation is ACCEPTED.
It is therefore ORDERED, ADJUDGED, and DECREED that plaintiff’s motion
to amend his request for injunctive relief7 is DENIED, and all claims against all
defendants are DISMISSED pursuant to 28 U.S.C. § 1915A(b), except plaintiff’s
claim that defendant Gunter deprived him of due process of law when he refused to

7

Doc. no. 25.

allow plaintiff to make a post-arrest telephone call for 13 days. It is further
ORDERED that plaintiff’s claim that defendant Gunter deprived him of due process
of law when he refused to allow plaintiff to make a post-arrest telephone call for 13
days is REFERRED to the magistrate judge for further proceedings.
DONE this 12th day of September, 2014.

______________________________
United States District Judge