Doe v. Jindal, et al

Filing 23

ORDER AND REASONS granting 11 Motion to Dismiss for Failure to State a Claim; granting 18 Motion to Dismiss for Failure to State a Claim. Doe's complaint is DISMISSED WITH PREJUDICE.. Signed by Judge Sarah S. Vance on 11/18/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN DOE

CIVIL ACTION

VERSUS

NO: 15-1283

HONORABLE BOBBY JINDAL, ET AL.

SECTION: R(2)

ORDER AND REASONS
The “state defendants”1 and defendant Michael Harrison move the Court
to dismiss plaintiff’s civil rights complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state
a claim under Rule 12(b)(6).2 For the following reasons, the Court grants the
motions and dismisses Doe’s claims with prejudice.

1

The “state defendants” are Governor Bobby Jindal, Louisiana
Attorney General James D. “Buddy” Caldwell, James “Jimmy” LeBlanc,
Colonel Michael D. Edmonson, Lieutenant Colonel Adam White, Major
Leland Falcon, Captain Stacey Barrett, and Lieutenant Christopher Eskew.
2

R. Doc. 11; R. Doc. 18.

I.

BACKGROUND
A.

Parties

Pseudonymous plaintiff “John Doe”3 is a recent resident of New Orleans,
Louisiana, and a registered sex offender. Doe was convicted and sentenced in
Alabama state court for Transmitting Obscene Material to a Minor by
Computer. Doe now challenges as unconstitutional part of Louisiana’s sex
offender registry laws on substantive due process and equal protection
grounds.
Doe sues the following nine defendants, all in their official capacities.
Defendant Governor Bobby Jindal is Chief Executive of the State of Louisiana,
who is bound by the Louisiana Constitution to see that state laws are faithfully
executed. According to Doe, Governor Jindal also appoints the heads of each
department of Louisiana’s executive branch, including the Secretary of the
Department of Public Safety and Corrections.4
Defendant Buddy Caldwell is the Attorney General of the State of
Louisiana. According to Doe, as attorney general, Caldwell has final authority
regarding criminal justice policy in Louisiana, which includes administering,
3

The parties quarrel over whether Doe is required to use his own
name, rather than a pseudonym, to state a claim as a matter of law under
Federal Rule of Civil Procedure 10(a). Because the Court dismisses Doe’s
claims on other grounds, it is unnecessary to address the parties’ arguments
on this point.
4

R. Doc. 1 at 3 ¶ 5.
2

maintaining, and enforcing Louisiana’s registry laws and the State Sex
Offender and Child Predator Registry.5
Defendant James “Jimmy” LeBlanc is the Secretary of the Louisiana
Department of Public Safety and Corrections.

According to Doe, the

Department obtains the information necessary to maintain the State Sex
Offender and Child Predatory Registry. As Secretary of the Department,
LeBlanc oversees all department programs, formulates rules and regulations
within the department, and determines department policy regarding
operations.6
Defendant Michael D. Edmonson is the Deputy Secretary of the
Department, who is in charge of Public Safety Services, and the
Superintendent of the Louisiana State Police. According to Doe, in these
positions, Edmonson maintains ultimate authority over the State Police’s
policies and practices, including how sex offender information is maintained
and disseminated within the State Sex Offender and Child Predator Registry.7
Defendant Adam White is the Deputy Superintendent of the Louisiana
State Police, who is in charge of Support Services. Support Services oversees
the policies and practices of Louisiana’s Bureau of Identification and
5

Id. at 4 ¶ 6.

6

Id. at ¶ 7.

7

Id. at 5 ¶ 8.
3

Information, which maintains sex offender information and releases that
information to the public.8
Defendant Leland Falcon heads Technical Support Services, a branch of
Louisiana State Police Support Services.9 Defendant Stacey Barrett heads the
Bureau of Identification and Information, which falls under Louisiana State
Police Technical Support Services.10 Defendant Christopher Eskew is the
Deputy Director of the State Sex Offender and Child Predator Registry.11
Defendant Michael Harrison is the Superintendent of the New Orleans
Police Department. According to Doe, as NOPD Superintendent, Harrison
maintains and administers the State Sex Offender and Child Predator Registry
in Orleans Parish. Harrison’s duties include collecting information from sex
offenders living in Orleans Parish and disseminating that information to the
public.12
B.

Factual Background
1.

Doe’s Alabama Conviction and Louisiana Sex Offender
Registration Requirements

8

Id. at ¶ 9.

9

Id. at ¶ 10.

10

Id. at ¶ 11.

11

Id. at 6 ¶ 12.

12

Id. at ¶ 13.
4

On April 30, 2012, Doe pled guilty in Alabama state court to
Transmitting Obscene Material to a Minor by Computer, an Alabama sex
offense. As part of Doe’s sentence, the Alabama court ordered Doe to register
himself as a sex offender for the rest of his life. According to Doe, the Alabama
court did not determine that Doe was dangerous or otherwise needed to
register for life because of some personal characteristic or disposition. Rather,
Alabama law mandates that every sex offender required to register must do so
for life.13
Doe now lives in Louisiana. According to Doe, when he transferred his
sex offender registration to Louisiana, the State, through the Louisiana Bureau
of Criminal Identification and Information, determined that because the
Alabama court sentenced Doe to lifetime sex offender registration, Doe must
register himself on Louisiana’s State Sex Offender and Child Predatory
Registry for the rest of his life as well. In addition, the Bureau determined that
Doe must periodically renew his sex offender registration in person with the
New Orleans Police Department every three months. The Bureau also rested
this determination on the Alabama court’s imposing lifetime registration as
part of Doe’s sentence.14

13

Id. at 7 ¶ 19.

14

Id. at 6 ¶ 16.
5

On April 14, 2015, Doe filed this 42 U.S.C. § 1983 civil rights lawsuit
seeking declaratory and injunctive relief from defendants. Doe alleges that the
portions of Louisiana’s sex offender registry laws on which the Bureau relied
in making its duration of registration and frequency of in-person renewal
determinations are unconstitutional.15
2.

Louisiana’s Sex Offender Registry Laws

Louisiana maintains a comprehensive statutory scheme governing sex
offender registry within the state. See La. Rev. Stat. § 15:540, et seq. (“Chapter
3-B. Registration of Sex Offenders, Sexually Violent Predators, and Child
Predators).

Doe challenges only two subsections within that overall

scheme–Louisiana Revised Statute § 15:544(C) and § 15:542.1.3(B)(2)(c).
Louisiana Revised Statute § 15:544 is the general provision addressing
the duration of an offender’s registration requirement. Subsection 544(C)
provides, “[a] person who is required to register pursuant to the provisions of
R.S. 15:542.1.3 shall register and maintain his registration . . . for the period
of registration provided by the jurisdiction of conviction or for the period of
registration provided by the provisions of this Section, whichever period is
longer.” La. Rev. Stat. § 15:544(C) (emphasis added). Revised Statute §
15:542.1.3 states that “[a]ny person who is convicted or adjudicated of an
offense under the laws of another state, or military, territorial, foreign, tribal,
15

Id. at 6-8.
6

or federal law [that] requires registration shall be subject to and shall comply
with all of the registration requirements of this Chapter . . . .” La. Rev. Stat. §
15:542.1.3(A). Thus, under § 15:544(C), if a person is convicted of a sex
offense in a state other than Louisiana, and that state’s period of registration
for the offense is longer than the registration period that Louisiana law would
require, Louisiana applies the registration period required by the offender’s
state of conviction. See La. Rev. Stat. § 15:544.
Revised Statute § 15:542.1.3 also establishes how an offender’s out-ofstate conviction affects Louisiana’s requirement that sex offenders residing
here periodically renew their sex offender registration in person with the
appropriate law enforcement agencies. According to subsection 542.1.3(A),
once an offender establishes a residence in Louisiana, he must provide the
Louisiana Bureau of Criminal Identification and Information certain
information pertaining to his offense of conviction.

The Bureau then

determines the offender’s period of registration and the frequency of his inperson periodic renewals by analogizing the offender’s out-of-state offense of
conviction to the “most comparable Louisiana offense.” La. Rev. Stat. §
15:542.1.3(B)(2)(a).

But when the offender’s jurisdiction of conviction

requires lifetime registration, the statute provides as follows:
If the period of registration required by the offender’s jurisdiction
of conviction is for the duration of the offender’s lifetime, the
bureau shall not be required to determine which time period of
7

registration and the frequency of in-person periodic renewals that
would be applicable to the offender while residing in Louisiana .
. . . The duration of the registration for any such offender shall be
for the duration of his lifetime pursuant to R.S. 15:544, and the
frequency of in-person periodic renewals for the offender shall be
every three months from the date of initial registration . . . .
La. Rev. Stat. § 15:542.1.3(B)(2)(c).
In other words, if the offender’s jurisdiction of conviction imposed a
lifetime registration requirement, the Bureau will not undertake the “most
comparable Louisiana offense” analysis. Instead, Louisiana will also impose
upon the offender a lifetime registration requirement and require him to
periodically renew his registration in person every three months. See id.
Doe alleges that the special provisions in sections 15:544(C) and
15:542.1.3(B)(2)(c) for offenders sentenced to lifetime registration by out-ofstate courts violate principles of substantive due process, as well as the Equal
Protection Clause of the Fourteenth Amendment by treating similarly situated
sex offenders differently depending on their state of conviction.16 Doe also
alleges that treating out-of-state offenders differently implicates the
fundamental right to travel, triggering strict scrutiny of Louisiana’s registry
provisions.17
C.

Defendants’ Motions to Dismiss

16

Id. at 3, 8.

17

Id. at 7 ¶ 22.
8

The “state defendants”–everyone but New Orleans Police Department
Superintendent Michael Harrison–move to dismiss Doe’s complaint on two
grounds. First, as to the claims against Governor Bobby Jindal, the state
defendants argue that the Court lacks subject matter jurisdiction because
Eleventh Amendment immunity bars Doe’s official-capacity claims against the
Governor.18 Second, as to Doe’s remaining claims, the state defendants argue
that Doe fails to state a claim upon which relief can be granted because the
challenged portions of Louisiana’s sex offender registry laws are
constitutional.19
Defendant Michael Harrison also moves to dismiss Doe’s complaint.
Harrison argues not only that the challenged statutes are constitutional, but
also that Doe fails to allege that Harrison’s conduct violated Doe’s
constitutional rights.20

II.

LEGAL STANDARD
A.

Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), “[a] case is properly
dismissed for lack of subject matter jurisdiction when the court lacks the
18

R. Doc. 11-1 at 5.

19

Id. at 10.

20

R. Doc. 18-1 at 5-6.
9

statutory or constitutional power to adjudicate the case.” Home Builders Ass’n
of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.
1996)). In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on
(1) the complaint alone, presuming the allegations to be true; (2) the complaint
supplemented by undisputed facts; or (3) the complaint supplemented by
undisputed facts and the court’s resolution of disputed facts. Den Norske Stats
Ojeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The
party asserting jurisdiction bears the burden of establishing that the district
court possesses jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001).
When, as here, grounds for dismissal may exist under both Rule 12(b)(1)
and Rule 12(b)(6), the Court should, if necessary, dismiss only under the
former without reaching the question of failure to state a claim. See Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). A court’s dismissal for
lack of subject matter jurisdiction is not a decision on the merits and does not
prevent the plaintiff from pursuing the claim in another forum. See id.
Because defendants argue that the Court lacks subject matter jurisdiction over
Doe’s claims against Governor Jindal only, the Court must nonetheless
address whether Doe states a claim as to the other defendants.
10

B.

Failure to State a Claim

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. at 678. A court must accept all
well-pleaded facts as true and must draw all reasonable inferences in favor of
the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir.
2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not
contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above the speculative
level, or if it is apparent from the face of the complaint that there is an
insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at
555.
11

III. DISCUSSION
A.

The Court Lacks Subject Matter Jurisdiction over Doe’s
Claims Against Governor Jindal

Defendants contend that Doe’s official-capacity claims against Governor
Jindal must be dismissed for lack of subject matter jurisdiction because the
Eleventh Amendment immunizes Governor Jindal from suit.21 The Eleventh
Amendment generally bars private citizens from suing a state in federal court.
See U.S. Const. amend. XI; K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)
(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)). The Eleventh Amendment
also bars private citizens from suing a state employee in his official capacity
because an official-capacity claim against a state employee is equivalent to
suing the state itself. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); K.P., 627 F.3d at 124.
But, as the Supreme Court has recognized, the Ex parte Young doctrine
excepts from Eleventh Amendment immunity a plaintiff’s action to enjoin a
state official from enforcing an unconstitutional law. See K.P., 627 F.3d at 124
(citing Ex parte Young, 209 U.S. 123 (1908)); Will, 491 U.S. at 71 n.10. To
satisfy the Ex parte Young exception, the plaintiff must show that the state
official has “some connection with the enforcement of the act.” Ex parte
Young, 209 U.S. at 157. In Okpalobi v. Foster, a plurality of the Fifth Circuit

21

R. Doc. 11-1 at 5.
12

explained that, to determine whether a state official has “some connection”
with enforcing the allegedly unconstitutional statute, a court should evaluate
(1) the official’s ability to enforce the statute according to his statutory or
constitutional powers, and (2) the official’s “demonstrated willingness” to
enforce the statute. See 244 F.3d 405, 417 (5th Cir. 2001).
Here, Doe’s complaint alleges that, according to the Louisiana
Constitution, Governor Jindal “has a duty to faithfully support the constitution
and laws of the state and . . . see that the laws are faithfully executed.”22 The
Governor also appoints the head of each department in Louisiana’s executive
branch, including the Secretary of the Department of Public Safety and
Corrections, which “administers, implements and maintains the State Sex
Offender and Child Predator Registry.”23
To bolster his claims against Governor Jindal, Doe argues in his brief
that the Governor demonstrated his willingness to enforce the challenged
statutes in a 2012 press release, in which Governor Jindal made strong
statements about out-of-state sex offenders.24 But “it is axiomatic that a
complaint cannot be amended by briefs in opposition to a motion to dismiss.”
In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566
22

R. Doc. 1 at 3 ¶ 5.

23

Id.

24

R. Doc. 15 at 7.
13

(S.D. Tex. 2011) (collecting cases). Accordingly, the Court will not consider the
new factual allegations Doe raises in his briefing.
Considering the allegations Doe properly presents in his complaint, the
Court finds that Doe has failed to demonstrate that the Ex parte Young
exception applies to his claims against Governor Jindal. Allegations that a
state official has merely carried out his constitutional duties do not satisfy Ex
parte Young’s requirement that there be “some connection” between the state
official and enforcement of the allegedly unconstitutional act. See Okpalobi,
244 F.3d at 417; Doe v. Jindal, No. 11-3888, 2011 WL 3925042, at *5 (E.D. La.
Sept. 7, 2011). Accordingly, the Court dismisses Doe’s claims against Governor
Jindal.

B.

Doe Fails to State a Claim that Defendants Violated His
Constitutional Rights by Enforcing the Challenged
Statutes
1.

Pleading a Civil Rights Claim under 42 U.S.C. § 1983

Section 1983 imposes civil liability on “[e]very person who, under color
of [state law], subjects, or causes to be subjected, any citizens of the United
States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws . . . .” 42 U.S.C. § 1983. To plead a section 1983
claim adequately, a plaintiff must allege that a state actor violated the
plaintiff’s constitutional right or a right otherwise protected by federal law.
14

Cornish v. Correctional Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005) (citing
West v. Atkins, 487 U.S. 42, 48 (1988)). “The first inquiry in any § 1983 suit,
therefore, is whether the plaintiff has been deprived of a right secured by the
Constitution and laws.” Baker v. McCollan, 443 U.S. 137, 140 (1979).
Doe challenges Louisiana Revised Statute § 15:544(C) and §
15:542.1.3(B)(2)(c) as violative of his substantive due process rights, his right
to equal protection, and his fundamental right to travel. Defendants argue
that Louisiana’s sex offender registry provisions are valid under each
constitutional doctrine.
2.

Substantive Due Process

The Court first addresses Doe’s substantive due process claim. The
Fourteenth Amendment guarantees that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. The Supreme Court has interpreted the Due Process Clause
to include both substantive and procedural components. See Washington v.
Glucksberg, 521 U.S. 702, 719-20 (1997). Procedural due process guarantees
that a state will not deprive a person of life, liberty, or property without
undertaking certain procedures, including some form of notice and an
opportunity to be heard. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).
Substantive due process protects certain fundamental rights that are so
“implicit in the concept of ordered liberty” from state infringement regardless
15

of any procedures that the state may use. Glucksberg, 521 U.S. at 720-21
(quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)). State legislation
that infringes on a fundamental right is subject to strict scrutiny and will be
invalidated unless it “narrowly tailored to serve a compelling state interest.”
Reno v. Flores, 507 U.S. 292, 302 (1993). If no fundamental right is involved,
the state statute need only be “rationally related to legitimate government
interests.” Glucksberg, 521 U.S. at 728 (citing Heller v. Doe ex rel. Doe, 509
U.S. 312, 319-20 (1993)).
As the Supreme Court explains, the fundamental rights that substantive
due process protects include “the rights to marry, to have children, to direct
the education and upbringing of one’s children, to marital privacy, to use
contraception, to bodily integrity, and to abortion.” Id. at 720; see also Doe v.
Jindal, No. 11-388, 2011 WL 3925042, at *9 (E.D. La. Sept. 7, 2011). The
Supreme Court has “always been reluctant to expand the concept of
substantive due process” to include additional rights or liberty interests
“because guideposts for responsible decisionmaking in this unchartered area
are scarce and open-ended.” Glucksberg, 521 U.S. at 720 (citing Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 125 (1992)). Therefore, to plead a
substantive due process claim properly, a plaintiff must first allege that he held
a constitutionally protected right to which the Fourteenth Amendment’s due

16

process protection applies. See SIMI Inv. Co., Inc. v. Harris Cty., 236 F.3d
240, 249-50 (5th Cir. 2000).
Here, Doe’s substantive due process allegation reads in its entirety:
“Each Defendant is the head of an agency, department, bureau, division, or
subdivision thereof responsible for the administration of Louisiana’s sex
offender registry and has conspired to deny Mr. Doe his rights under the Equal
Protection Clause of the 14th Amendment to the US Constitution and the
Statute denies Mr. Doe his substantive due process rights.”25 Beyond that,
Doe fails to articulate which substantive due process rights he believes
defendants to have infringed. Though elsewhere Doe alleges that defendants
violated his fundamental right to interstate travel, courts traditionally
safeguard the right to travel under the Equal Protection Clause of the
Fourteenth Amendment. See, e.g., Saenz v. Roe, 526 U.S. 489, 499 (1999)
(“[A] classification that ha[s] the effect of imposing a penalty on the exercise
of the right to travel violate[s] the Equal Protection Clause . . . .”); Attorney
Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 n.2 (1986) (noting that “[i]t is
clear from our cases [that] the right to travel achieves its most forceful
expression in the context of equal protection analysis”); Zobel v. Williams, 457
U.S. 55, 60 n.6 (1982) (“In reality, right to travel analysis refers to little more
than a particular application of equal protection analysis.”). Accordingly, the
25

R. Doc. 1 at 6 ¶ 14 (emphasis added).
17

Court addresses Doe’s right to travel as an equal protection claim, and not as
a substantive due process claim.
Doe must therefore allege some other fundamental right “implicit in our
concept of ordered liberty” to sustain his substantive due process claim. See
Glucksberg, 521 U.S. at 720-21 (quoting Palko v. Connecticut, 302 U.S. 319,
325-26 (1937)). Because he does not, Doe’s substantive due process allegation
is nothing more than a bare, conclusory allegation that the Court need not
accept as true on defendants’ motions to dismiss. See Varela v. Gonzales, 773
F.3d 704, 710 (5th Cir. 2014) (holding that the court “need not accept such
conclusory allegations as true”).
Further, the absence of an allegation that the challenged statutes
infringe on an already-established fundamental right is fatal to Doe’s
substantive due process claim. Because courts are “reluctant to expand the
concept of substantive due process,” see Glucksberg, 521 U.S. at 720, courts
routinely reject substantive due process challenges to state or federal sex
offender registry laws when the plaintiff fails to articulate a right that falls
within the types of substantive due process rights the Supreme Court has
already recognized. See Doe v. Cuomo, 755 F.3d 105, 114 (2d Cir. 2014) (New
York’s Sex Offender Registration Act does not implicate the fundamental right
to privacy); Does v. Munoz, 507 F.3d 961, 964-65 (6th Cir. 2007) (plaintiffs
have no fundamental right to privacy regarding expunged sex offense
18

convictions); Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 500 (6th Cir.
2007) (rejecting sex offenders’ fundamental rights arguments based on right
to privacy and interests in nondisclosure of private information); Doe v.
Moore, 410 F.3d 1337, 1343-44 (11th Cir. 2005) (rejecting allegations that
Florida’s Sex Offender Act violated plaintiffs’ “rights to family association, to
be free of threats to their persons and members of their immediate families,
to be free of interference with their religious practices, to find and/or keep any
housing, and to a fundamental right to find and/or keep any employment”);
Doe v. Miller, 405 F. 3d 700, 709-10 (8th Cir. 2005) (Iowa’s sex offender
residency restrictions do not implicate fundamental right to personal choice
in family matters); Doe v. Tandeske, 361 F.3d 594, 596-97 (9th Cir. 2004) (sex
offenders do not have a fundamental right to be free from state registration
and notification requirements); Gunderson v. Hvass, 339 F.3d 639, 644 (8th
Cir. 2003) (Minnesota’s sex offender registry law does not implicate the
fundamental right to the presumption of innocence); Paul P. v. Verniero, 170
F.3d 396, 404-05 (3d Cir. 1999) (effects of sex offender community
notification on family relationships does not “fall within the penumbra of
constitutional privacy protection”); see also Doe v. Jindal, No. 11-388, 2011
WL 3925042, at *10 (E.D. La. Sept. 7, 2011) (sex offender plaintiffs fail to state
a substantive due process claim based on the right to privacy). Because the
challenged legislation is then subject to rational basis review, courts have
19

almost always upheld sex offender registry statutes as constitutional. E.g.,
Doe v. Cuomo, 755 F.3d 105, 114 (2d Cir. 2014) (upholding New York’s Sex
Offender Registration Act under rational basis review); Does v. Munoz, 507
F.3d 961, 964-65 (6th Cir. 2007) (upholding Michigan’s registration
requirement for sex offenders with expunged convictions under rational basis
review); Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 500 (6th Cir. 2007)
(upholding Michigan’s registration requirement for juvenile sex offenders
under rational basis review); Doe v. Moore, 410 F.3d 1337, 1343-44 (11th Cir.
2005) (upholding Florida’s Sex Offender Act under rational basis review); Doe
v. Miller, 405 F. 3d 700, 709-10 (8th Cir. 2005) (upholding Iowa’s sex
offender residency restriction under rational basis review); Doe v. Tandeske,
361 F.3d 594, 596-97 (9th Cir. 2004) (upholding Alaska’s sex offender registry
law under rational basis review); Gunderson v. Hvass, 339 F.3d 639, 644 (8th
Cir. 2003) (upholding Minnesota’s sex offender registry law under rational
basis review).
As the Court explains in its equal protection analysis in Part III.B.3,
infra, Louisiana’s lifetime sex offender registry provisions are rationally
related to legitimate state interests and thus constitutional. “A rational basis
that survives equal protection scrutiny also satisfies substantive due process.”
Exec. Air. Taxi Corp. v. City of Bismarck, N.D., 518 F.3d 562, 569 (8th Cir.
2008) (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 n.12
20

(1981)).

Therefore,

Louisiana’s statutes are constitutional under the

substantive due process component of the Fourteenth Amendment.
3.

Equal Protection and the Fundamental Right to Travel

The Equal Protection Clause of the Fourteenth Amendment guarantees
that “[n]o state shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. As the Supreme Court
explains, the Equal Protection Clause “embodies a general rule that States
must treat like cases alike but may treat unlike cases accordingly.” Vacco v.
Quill, 521 U.S. 793, 799 (1997) (citations omitted). Importantly, “[t]he
Constitution does not require things which are different in fact . . . to be
treated in law as though they were the same.” Plyler v. Doe, 457 U.S. 202, 216
(1982) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). Thus, to state an
equal protection claim, the plaintiff must allege that he is “similarly situated”
to other persons, that he has been treated differently from those similarly
situated persons, and that the relationship between the differential treatment
and the state’s asserted goals cannot satisfy judicial review. See Gibson v. Tex.
Dep’t of Ins.–Div. of Workers’ Comp., 700 F.3d 227, 238 (5th Cir. 2012);
Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999).
Most courts hold that persons are “similarly situated” for purposes of an
equal protection analysis “when they are alike in all relevant aspects.” E.g.,
Castaneira v. Potteiger, __ F. App’x __, 2015 WL 4385694, at *4 (3d Cir.
21

2015); accord Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d
677, 680 (7th Cir. 2005) (“To be considered ‘similarly situated,’ comparators
must be prima facie identical in all relevant respects or directly comparable
to [plaintiff] in all material respects.”). In the context of a class-of-one equal
protection claim, however, the Fifth Circuit has cautioned that the “similarly
situated” inquiry is case-specific and that courts must consider “the full variety
of factors that an objectively reasonable . . . decisionmaker would have found
relevant in making the challenged decision.” Lindquist v. City of Pasadena
Tex., 669 F.3d 225, 233-34 (5th Cir. 2012) (citation omitted).
Here, Doe’s allegations are flawed at their outset. In his complaint, Doe
alleges that, as a person convicted of an Alabama sex offense and sentenced to
a lifetime term of sex offender registration by an Alabama court, he is similarly
situated to persons convicted of Louisiana sex offenses and sentenced to a
term of registration by a Louisiana court. Doe is materially unlike, and
therefore not similarly situated to, Louisiana offenders because he was
convicted and sentenced of an Alabama offense, which carries penalties
different from a Louisiana offense.

See Castaneira v. Potteiger, No.

3:13cv3108, 2014 WL 4716621, at *6 (M.D. Pa. Sept. 22, 2014), aff’d, __ F.
App’x __, 2015 WL 4385694 (3d Cir. 2015) (“Plaintiff is not similarly situated
to offenders convicted of similar crimes in Pennslyvania [because he] was
arrested, charged and convicted in Georgia.”); Creekmore v. Attorney Gen. of
22

Tex., 341 F. Supp. 2d 648, 663 (E.D. Tex. 2004) (“[Plaintiff] is not similarly
situated to individuals convicted under the Texas Penal Code . . . . [Plaintiff]
is similarly situated to individuals convicted of a sex offense in a jurisdiction
other than Texas.”); Oulman v. Setter, No. A13-2389, 2014 WL 3801870, at
*3-4 (Minn. Ct. App. 2014) (“[I]ndividuals may be classified as dissimilarly
situated based on location. . . . [Plaintiff] belongs to that class of persons who
commit crimes in violation of another state’s laws, who are subject to
registration requirements of that state, and who relocate to Minnesota.”).
Importantly, Doe admits that an Alabama state court initially imposed the
lifetime registration requirement as part of his sentence.26 See Castaneira v.
Potteiger, 2014 WL 4716621, at *6 (“[P]laintiff is not similarly situated to
Pennslyvania offenders because Georgia, not Pennsylvania, imposed the
special condition.”). Because Alabama, and not Louisiana, has the specific,
penological interest in imposing a lifetime registration requirement on
Alabama offenders, such as Doe, Doe is different in fact from Louisiana
offenders. Therefore, Louisiana need not treat Doe or other offenders with
out-of-state convictions the same under the law. See Plyler v. Doe, 457 U.S.
202, 216 (1982). “Different treatment of [persons] who are not similarly
situated does not offend equal protection.” Apache Bend Apartments, Ltd. v.

26

Id.
23

United States ex rel. IRS, 987 F.2d 1174, 1182 (5th Cir. 1993) (Goldberg, J.,
dissenting).
Even if the Court considered an offender convicted in another state to be
similarly situated to an offender convicted in Louisiana, Doe’s equal protection
claim would still fail as a matter of law. To start, Doe argues that, because this
differential treatment infringes on the fundamental right to travel, the
Louisiana sex offender registry provisions must be strictly scrutinized.
The “freedom to travel throughout the United States has long been
recognized as a basic right under the Constitution.” Attorney General of N.Y.
v. Soto-Lopez, 476 U.S. 898, 901 (1986) (citations omitted).

The

constitutional “right to travel” includes three components: (1) “the right of a
citizen of one State to enter and to leave another State,” (2) the “right to be
treated as a welcome visitor rather than unfriendly alien when temporarily in
the second State,” and (3) for those who elect to become permanent residents
of another state, “the right to be treated like other citizens of that State.”
Saenz v. Roe, 526 U.S. 489, 500 (1999). In other words, people should
generally “be free to travel throughout the length and breadth of our land
inhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement.” Id. at 499 (emphasis) (quoting Shapiro v. Thompson,
394 U.S. 618, 629 (1969)). “However, mere burdens on a person’s ability to
travel from state to state are not necessarily a violation of the[] right to travel.”
24

Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir. 2005) (emphasis added) (citing
Saenz v. Roe, 526 U.S. 489, 599 (1999)); see also United States v. Byrd, 419
F. App’x 485, 491 (5th Cir. 2011) (emphasizing that courts should apply strict
scrutiny only to statutes that “unreasonably burden” the right to travel);
United States v. Shenandoah, 595 F.3d 151, 163 (3d Cir. 2010) (“[I]t is worth
noting that the [c]onstitutional right of interstate travel is not an absolute right
. . . .”).
Here, Doe contends that defendants have burdened the third component
of the right to travel, i.e., the right to be treated like other citizens of Louisiana.
Doe argues that “[b]y treating individuals required to register on the state sex
offender registry differently if they move to Louisiana after their conviction
that they would be treated if they were living in Louisiana at the time of their
conviction, the State of Louisiana denies those individuals . . . the fundamental
right to travel.” Doe’s argument rests on a fundamental misunderstanding of
the applicable Louisiana law.
Again, the relevant portions of Louisiana’s sex offender registry laws are
as follows. Louisiana Revised Statute § 15:542.1.3 explains that “[a]ny person
who is convicted or adjudicated of an offense under the laws of another state,
or military, territorial, foreign, tribal, or federal law [that] requires registration
shall be subject to and shall comply with all of the registration requirements
of this Chapter . . . .” See La. Rev. Stat. § 15:542.1.3(A). This provision does not
25

limit its applicability to persons born outside of Louisiana or to persons who
lived in another state at the time of their conviction. See Nolan v. State, 148
So.3d 198, 203 (La. App. 1 Cir.), cert. denied, (La. 2014) (“The applicable
Louisiana statute at issue, La. R.S. 15:542.1.3(A), specifically addresses
procedures for the registration of sex offenders who have residences in
Louisiana but who have been convicted under the laws of another state.”)
This is also clear because the law explicitly covers persons convicted of
“military, territorial, foreign, tribal, or federal law” crimes. Louisiana’s
registry provisions plainly apply to “any person . . . convicted or adjudicated
of an offense under the laws of another state [or other sovereign]” without
regard to the person’s state of residency at the time of his conviction. See La.
Rev. Stat. § 15:542.1.3(A) (emphasis added).
Louisiana Revised Statute § 15:544 is the general provision governing
the duration of a sex offender’s registration and notification period. Regarding
those offenders who have been “convicted or adjudicated of an offense under
the laws of another state, or military, territorial, foreign, tribal, or federal law,”
subsection 544(C) provides that a person who is required to register as a sex
offender under the laws of another jurisdiction “shall register . . . for the period
of registration provided by the jurisdiction of conviction or for the period of
registration provided by the provisions of [Louisiana’s registry laws],
whichever period is longer.”

La. Rev. Stat. § 15:544(C).
26

Even though

subsection 544(C) necessarily compels this result, subsection 542.1.3(B)(2)(C)
explicitly provides that “if the period of registration required by the offender’s
jurisdiction of conviction is for the duration of the offender’s lifetime . . . [t]he
duration of the registration for any such offender shall be for the duration of
his lifetime . . . .” La. Rev. Stat. 542.1.3(B)(2)(C). This subsection also
provides that “if the period of registration required by the offender’s
jurisdiction of conviction is for the duration of the offender’s lifetime . . . the
frequency of in-person periodic renewals for the offender shall be every three
months from the date of initial registration . . . .”

La. Rev. Stat.

542.1.3(B)(2)(C).
Initially, the Court finds that these provisions do not facially restrict, in
any way, a sex offender’s movement into or out of the state of Louisiana. See
United States v. Byrd, 419 F. App’x 435, 492 (5th Cir. 2011) (rejecting
plaintiff’s right to travel challenge because “nothing in SORNA places any
restriction on [defendant’s] movement from state to state”). The provisions
merely require that if a person residing in Louisiana has at any time been
ordered to register as a sex offender by a jurisdiction other than Louisiana,
then that person must also register as a sex offender under Louisiana law. See
United States v. Shenandoah, 595 F.3d 151, 162 (3d Cir. 2010) (“[Defendant]
may travel interstate, but when he does, [he] must register in the new state,

27

while a convicted sex offender who remains within a state need only remain
properly registered therein.”).
That Louisiana also requires the offender to register for whichever
jurisdiction’s applicable registration period is longer does not offend the right
to travel. Doe interprets his fundamental right to travel as allowing a sex
offender easily to escape the registration requirement imposed by his
jurisdiction of conviction by moving to a state which would have imposed a
more lenient registration condition if it had originally prosecuted the offender.
The Constitution does not require this result. What the constitutional right to
travel does require–“the right to be treated like other citizens of that
State”–Louisiana’s lifetime sex offender registry provisions already achieve.
See Saenz v. Roe, 526 U.S. 489, 500 (1999). The challenged statutes treat an
out-of-state resident with an out-of-state conviction and a lifelong Louisiana
resident with an out-of-state conviction the same way. Accordingly, the Court
concludes that Louisiana’s lifetime registration provisions do not
unreasonably burden the right to travel.
Because the challenged statutes do not unreasonably burden the
fundamental right to travel and Doe has not suggested that they implicate any
other fundamental right, the Court need only review the statutes’
constitutionality under the rational basis standard. Rational basis review
requires the Court to find that the challenged statutes are “rationally related
28

to legitimate government interests.” Glucksberg, 521 U.S. at 728 (citing Heller
v. Doe ex rel. Doe, 509 U.S. 312, 319-20 (1993)). As the Supreme Court has
explained,
rational-basis review in equal protection analysis is not a license
for courts to judge the wisdom, fairness, or logic of legislative
choices. . . . [A] classification neither involving fundamental rights
nor proceeding along suspect lines is accorded a strong
presumption of validity. Such a classification cannot fun afoul of
the Equal Protection Clause if there is a rational relationship
between the disparity of treatment and some legitimate
governmental purposes. Further, a legislature that creates these
categories need not actually articulate at any time the purpose or
rationale supporting its classification. Instead, a classification
must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational
basis for the classification.
Heller v. Doe ex rel. Doe, 509 U.S. 312, 319-20 (1993) (citations omitted). In
sum, the rational basis standard is highly deferential. The Court will not
overturn government action unless it “is so unrelated to the achievement of
any combination of legitimate purposes that [the court] can only conclude that
the [government’s] actions were irrational.” Kimel v. Fla. Brd. of Regents, 528
U.S. 62, 84 (2000) (citing Vance v. Bradley, 440 U.S. 93, 97 (1979)); see also
Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007)
(explaining that courts invalidate statutes as unconstitutional under rational
basis review “only in rare or exceptional circumstances”).
Here, the Court concludes that there are at least two justifications for
Louisiana’s imposing the longer period of registration and the in-person
29

periodic renewals that satisfy rational basis review. First, Louisiana Revised
Statute 15:544(C)’s “whichever period is longer” provision reflects a public
policy determination that, to promote public safety and discourage recidivism,
individuals convicted of sex offenses must register on the State Sex Offender
and Child Predator Registry for at least the period of registration that a
Louisiana court would have imposed under Louisiana law. See La. Rev. Stat.
§ 15:540 (explaining Louisiana’s interest in protecting the public from sex
offenders, sexually violent predators, and child predators).

But if the

offender’s jurisdiction of conviction has determined that a longer period of
registration is necessary for deterrence, safety, or other reasons, Louisiana will
recognize that jurisdiction’s penological interest and will not permit an
offender to circumvent it by leaving his state of conviction for a more lenient
jurisdiction.

Applying the longer period of registration simultaneously

satisfies the penological interests of Louisiana, the jurisdiction in which the
offender resides, and the jurisdiction in which the offender was convicted.
This reasoning also applies to Louisiana Revised Statute 15:542.1.3(B)(2)(c),
which imposes a lifetime registration requirement in Louisiana on an offender
subject to a lifetime registration requirement by another jurisdiction.
Second, defendants explain that Louisiana Revised Statute § 15:544(C)
and § 15:542.1.3(B)(2)(c) are an effort to adopt a “more unified” sex offender

30

registry system.27 As the Supreme Court recently has recognized, the existing
“patchwork of federal and 50 individual state registration systems” is plagued
with “loopholes and deficiencies.” United States v. Kebodeaux, 133 S. Ct.
2496, 2505 (2013). Louisiana’s requirements of “whichever [registration]
period is longer” and, for offenders subject to lifetime registration, in-person
periodic renewals every three months are rationally related to Louisiana’s
interest in preventing sex offenders from subverting the purposes of their
court-ordered registration requirements.
In sum, Louisiana’s statutes are constitutional under the Equal
Protection Clause of the Fourteenth Amendment.
4.

Summary

Louisiana Revised Statute § 15:544(C) and § 15:542.1.3(B)(2)(c) are
constitutional under both the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment. Consequently, no defendant has
deprived Doe of a constitutional right by applying these statutes to him.
Therefore, Doe cannot satisfy the threshold requirement of stating a claim
under section 1983, see Baker v. McCollan, 443 U.S. 137, 140 (1979), and his
complaint must be dismissed as a matter of law.

27

R. Doc. 11-1 at 24.
31

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the state defendants’ and

defendant Michael Harrison’s Motions to Dismiss.

Doe’s complaint is

DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this _______ day of November, 2015.
18th

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

32