HOLMES v. STATE OF INDIANA
ENTRY Dismissing Complaint and Directing Further Proceedings. The plaintiff shall have through February 1, 2017, in which to show cause why Judgment consistent with this Entry should not issue or to identify a viable claim which was not considered by the Court in this Entry. (See Order.) Signed by Judge Larry J. McKinney on 1/4/2017. Copy sent to Plaintiff via US Mail. (LDH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
FREDERICK R. HOLMES,
STATE OF INDIANA,
Case No. 1:16-cv-03181-LJM-MJD
Entry Dismissing Complaint and Directing Further Proceedings
Plaintiff Frederick Holmes filed a civil rights action alleging that his constitutional rights
will be violated when he is released from the New Castle Correctional Facility on January 5, 2021,
and is required by Indiana law to register on the Indiana Sex Offender Registry with a designation
he is a sexually violent predator. Ind. Code § 35-38-1-7.5.
The plaintiff is a prisoner currently incarcerated at New Castle Correctional Facility (“New
Castle”). Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has
an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants.
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or
malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
immune from such relief. In determining whether the complaint states a claim, the Court applies
the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff
are construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
In the complaint, the plaintiff acknowledges that he will have to register on the Indiana Sex
Offender Registry. However, he alleges his designation as a sexually violent predator under
Indiana law is unconstitutional because the law was passed in 2007, yet he was convicted by a jury
on March 3, 1999, and therefore should not be subject to the requirements of a 2007 law. This is a
claim that the plaintiff’s rights under the Ex Post Facto clause will be violated. The plaintiff also
alleges that the Indiana Department of Correction’s (“IDOC”) requirement that he participate in
the SOMM program while incarcerated violates his rights under the Constitution.
To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution or laws of the United States and must show that the alleged deprivation was
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). This
court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. ' 1331.
Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating
federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, “the first step in any [§ 1983] claim is
to identify the specific constitutional right infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994).
A corollary to this rule is that without a predicate constitutional violation one cannot make out a
prima facie case under § 1983. Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992).
In this case, the complaint makes reference to constitutional provisions but does not allege
a plausible violation of them.
The plaintiff’s claim under the Ex Post Facto Clause of the United States Constitution fails
to state a claim. The United States Constitution “prohibits both federal and state governments from
enacting any ‘ex post facto Law.’” Peugh v. United States, 133 S. Ct. 2072, 2081 (2013) (citing
Art. I, § 9, cl. 3; Art. I, § 10). “The [Supreme] Court has emphasized [that a] . . . civil regulatory
regime will implicate ex post facto concerns only if it can be fairly characterized as punishment.”
United States v. Leach, 639 F.3d 769, 772 (7th Cir. 2011) (citations and quotation marks omitted).
Simply put, “[t]o violate the Ex Post Facto Clause . . . a law must be both retrospective and penal.”
The plaintiff’s allegations regarding Indiana’s Sexually Violent Predator regime do not
show that the changes created by the law are penal. “[W]hether a comprehensive registration
regime targeting only sex offenders is penal . . . is not an open question,” given that the Supreme
Court in Smith v. Doe, 538 U.S. 84 (2003), held that “an Alaska sex offender registration and
notification statute posed no ex post facto violation because it was a civil, rather than penal,
statute.” Leach, 639 F.3d at 773. Moreover, the Seventh Circuit has held that the federal
registration statute, the Sex Offender Registration and Notification Act, “is not an ex post facto
law.” Id. Accordingly, the plaintiff’s claims based on the Ex Post Facto Clause of the United
States Constitution are dismissed.
The plaintiff also challenges the requirements of Indiana Sex Offender Management
Monitoring Program. To the extent that any prison proceeding pursuant to this program resulted
in the deprivation of earned good time, his claims must be dismissed. The settled law in these
circumstances is that when a prisoner makes a claim that, if successful, could shorten his term of
imprisonment, the claim must be brought as a habeas petition, not as a § 1983 claim. Heck v.
Humphrey, 512 U.S. 477 (1994). See Preiser v. Rodriguez, 411 U.S. 475 (1973). In Edwards v.
Balisok, 520 U.S. 641 (1997), the foregoing rule was “extend[ed] . . . to the decisions of prison
disciplinary tribunals.” Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2007). A court cannot on its
own convert a §1983 suit to one under § 2254; the two kinds of actions have different conditions,
different defendants (or respondents), and different consequences on either success or an adverse
outcome. See, e.g., Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997); Copus v. Edgerton, 96 F.3d
1038 (7th Cir. 1996).
VI. Supplemental Jurisdiction over State Law Claims
The plaintiff argues that the Indiana Sex Offender Registration Act (“Act”), Ind. Code §§
11–8–8–1 to 11–8–8–22 and the statutory definition of Sexual Violent Predator under Ind. Code
§§ 5–2–12–4.5, 35–38–1–7.5, violate the ex post facto clause of the Indiana Constitution. See
Wallace v. State, 905 N.E.2d 371, 373 (Ind. 2009) (discussing application of ex post facto clause
as applied to individual defendants); Jensen v. State, 905 N.E.2d 384 (Ind. 2009) (same); Lemmon
v. Harris, 949 N.E.2d 803, 813 (Ind. 2011) (same); Tyson v. State, 51 N.E.3d 88 (Ind. 2016)(same).
Because the federal claims purported alleged in the complaint fails to state a claim upon
which relief may be granted, the plaintiff may not rely on the court’s supplemental jurisdiction to
entertain his state-law claims. See 42 U.S.C. § 1367(c)(3); Hagans v. Lavine, 415 U.S. 528, 536-
37 (1974); In re African-Am. Slave Descendants Litig., 471 F.3d 754,757-58 (7th Cir. 2006).
Accordingly, the state law claims are subject to dismissal for lack of jurisdiction.
The plaintiff’s complaint must be dismissed for each of the reasons set forth above. The
plaintiff shall have through February 1, 2017, in which to show cause why Judgment consistent
with this Entry should not issue or to identify a viable claim which was not considered by the Court
in this Entry. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (“Without
at least an opportunity to amend or to respond to an order to show cause, an IFP applicant’s case
could be tossed out of court without giving the applicant any timely notice or opportunity to be
heard to clarify, contest, or simply request leave to amend.”).
IT IS SO ORDERED.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
FREDERICK R. HOLMES
DOC # 935125
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
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