A.W. v. State of Nebraska et al

Filing 42

MEMORANDUM AND ORDER - The Defendants' 25 Motion to Dismiss is granted in part and denied in part as follows: a. All claims against the State of Nebraska and the Nebraska State Patrol are dismissed without prejudice. b. Plaintiffs Fifth Amendment claim is dismissed with prejudice. c. Plaintiffs procedural due process claim is dismissed with prejudice. d. In all other respects, the motion is denied. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

A.W., a minor child, by and through
JOHN DOE and JANE DOE, as Next
Friends and Guardians,
Plaintiffs,
v.
STATE OF NEBRASKA; NEBRASKA
STATE PATROL; DOUG PETERSON,
Attorney General of Nebraska;
THOMAS SCHWARTEN,
Superintendent of Law Enforcement and
Public Safety for Nebraska State Patrol;
PAUL WOOD, County Attorney for Red
Willow County; and GENE MAHON,
Sheriff Red Willow County,
Defendants.

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8:14CV256

MEMORANDUM
AND ORDER

Defendants have filed a motion to dismiss portions of Plaintiffs’ amended
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), for lack of
subject matter jurisdiction and failure to state a claim upon which relief can be granted
(Filing No. 25). The motion will be granted in part and denied in part.
1. Summary of the Pleadings
Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 2201
and 42 U.S.C. § 1983. It is alleged in the amended complaint that “[a] petition was
filed in the Juvenile Court of Anoka County, Minnesota in October of 2013 alleging
criminal sexual conduct by Plaintiff A.W., which took place when [he] was 11 years

old (Filing No. 24, ¶ 29); that “Plaintiff A.W. was sent to live with Plaintiffs John and
Jane Doe in Red Willow County, Nebraska, after allegations were initially made in
August of 2013, ... [and he] has resided in Red Willow County, Nebraska, since that
time” (Filing No. 24, ¶ 30); that “[o]n or about July 18, 2014, Plaintiff A.W. was
adjudicated delinquent for criminal sexual conduct in the Juvenile Court of Anoka
County, Minnesota, and ordered, inter alia, to comply with Minnesota’s predatory
offender registration” (Filing No. 24, ¶ 31); that “[o]n or about October 22, 2014,
Plaintiff A.W. completed a Minnesota Predatory Offender Registration Form thereby
completing his obligation for registration under Minnesota’s [Predatory Offender
Registration Act (PORA)]” (Filing No. 24, ¶ 32); that “[p]ursuant to Minnesota’s
PORA, Plaintiff A.W. has not been subjected to public notification” (Filing No. 24,
¶ 33); and that “[t]he State of Nebraska has notified Plaintiff A.W. that [he] is subject
to Neb. Rev. Stat. § 29-4003(1)(a)(iv) of Nebraska’s Sex Offender Registration Act1
including public notification pursuant to the state’s Sex Offender website maintained
by the Nebraska State Patrol” (Filing No. 24, ¶ 34).2
There are six named Defendants: (1) the State of Nebraska; (2) the Nebraska
Attorney General; (3) the Nebraska State Patrol (“NSP”); (4) the NSP Superintendent;

1

This provision of the Nebraska Sex Offender Registration Act (“SORA”),
Neb. Rev. Stat.§§ 29-4001 to 29-4014, “applies to any person who on or after January
1, 1997 ... [e]nters the state and is required to register as a sex offender under the laws
of another village, town, city, state, territory, commonwealth, or other jurisdiction of
the United States.” Neb. Rev. Stat. § 29-4003(1)(a)(iv).
2

In Minnesota, a person who “was charged with or petitioned for a felony
violation of [criminal sexual conduct] ... and convicted of or adjudicated delinquent
for that offense” must register. Minn. Stat. § 243.166.1b(a)(1)(iii). However,
registration data concerning persons who are “required to register based solely on a
delinquency adjudication” is not publicly disclosed because they are not considered
“predatory offenders” for notification purposes. See Minn. Stat. §§ 243.166.7(a),
244.052.1(5)).
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(5) the Red Willow County Attorney; and (6) the Red Willow County Sheriff. The
State and the NSP argue that they are not proper parties.
Four constitutional claims are asserted. Plaintiffs allege that unless Defendants
are enjoined from enforcing Neb. Rev. Stat. § 29-4003(1)(a)(iv) against Plaintiff
A.W., they will (1) subject him to “cruel and unusual punishment in violation of the
Eighth Amendment to the U. S. Constitution and Article I, section 9 of Nebraska’s
Constitution” (Filing No. 24, ¶ 38); (2) “violate [his] right to equal protection of the
laws contrary to the Fourteenth Amendments [sic] to the U. S. Constitution and
Article I, section 3 of Nebraska’s Constitution” (Filing No. 24, ¶ 40); (3) “violate [his]
right to procedural and substantive due process in violation of the Fifth and Fourteenth
Amendments to the U. S. Constitution and Article I, section 3 of Nebraska’s
Constitution (Filing No. 24, ¶ 42); and (4) violate “the privileges and immunities
clause of the Article IV, Section 2, Clause 1 of the U. S. Constitution and Article I,
section 16 of Nebraska’s Constitution” (Filing No. 24, ¶ 44). Defendants argue that
the first and third claims are not actionable.
2. The State Cannot Be Sued Under 42 U.S.C. § 1983
The State of Nebraska moves for the dismissal of all § 1983 claims against it
because “[t]he State is not a person as that term is used in 42 U.S.C. § 1983 and that
section does not create a cause of action against the State of Nebraska” (Filing No. 26,
at p.3 (citing Sundberg v. Nebraska, No. 8:09CV228, 2009 WL 2948559, at *1
(D.Neb. Sep. 11, 2009)). “Plaintiffs do not take issue with Defendants’ contention that
42 U.S.C. § 1983 does not create a cause of action against the State of Nebraska.”
(Filing No. 40, at p.2).
3. The State Has Not Waived Sovereign Immunity
Defendants additionally assert that “Plaintiff’s [sic] First, Second, Third, and
Fourth Causes of Action against the State of Nebraska and the Nebraska State Patrol
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are barred because the State of Nebraska, on behalf of its agencies and officials, has
not waived its sovereign immunity from suit in federal court” (Filing No. 26, at p.3).3
Plaintiffs do not dispute that the State of Nebraska and the NSP are immune from suit
in federal court, but they contend that “Eleventh Amendment immunity has been
waived by the State of Nebraska through litigation conduct” (Filing No. 40, at p.2).
Specifically, Plaintiffs claim sovereign immunity was waived when Defendants, in
opposing Plaintiffs’ motion to certify a question of state law to the Nebraska Supreme
Court, argued that “[t]his Court’s review” of the Constitutional questions “will
determine this case.” (docket no. 37)” (Filing No. 40, at p.2).4
Plaintiffs argue that “a state seeking to prevent a state court from considering
a state law question in favor of having a federal court resolve Constitutional questions
is analogous to a state removing an action to federal court” (Filing No. 40, at pp.2-3
(citing Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618-23
(2002), for the proposition that “[a] state waives immunity when it voluntarily
removes an action to federal court.”)). There is no merit to this contention. The State
did not invoke federal court jurisdiction by opposing Plaintiffs’ motion, and its legal
argument was not a clear waiver of immunity. “[A] State’s waiver of its Eleventh
Amendment immunity through conduct in litigation must be unambiguous and evince

3

Plaintiffs note “that Defendants do not contend that immunity extends to the
Nebraska Attorney General, the Superintendent of the Nebraska State Patrol, the
County Attorney for Red Willow County or the County Sheriff for Red Willow
County” (Filing No. 40, at p.2). Plaintiffs’ observation is not refuted by Defendants
in their reply brief.
4

Defendants actually stated: “This Court’s review of § 29-4003(1)(a)(iv), as
applied to A. W. under the U.S. Constitution and the Interstate Compact for Juveniles,
will determine this case, not Plaintiffs’ proposed state law question” (Filing No. 37,
at p.3). The question Plaintiffs proposed for certification was “[w]hether Neb. Rev.
Stat. § 29-4003(1)(a)(iv) .... applies to a minor that is required to register as a sex
offender in another state that requires sex offender registration without public
notification for juvenile adjudications” (Filing No. 32, at p.1).
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a clear choice to submit its rights to adjudication by the federal courts.” Consejo de
Salud de la Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695 F.3d
83, 103 (1st Cir. 2012) (internal quotation marks and alterations omitted). “[A] state
does not waive its immunity ... by defending a case in federal court so long as it
asserts its Eleventh Amendment sovereign immunity defense in a timely manner.”
U.S. v. Metropolitan St. Louis Sewer Dist., 578 F.3d 722, 725 (8th Cir. 2009).
4. Plaintiffs Have Sufficiently Alleged an Eighth Amendment Claim
Defendants argue that count one of the amended complaint, involving a claim
of cruel and unusual punishment in violation of the Eighth Amendment (and Neb.
Const., Art. I, § 9),5 must be dismissed because “SORA’s registration and notification
requirements do not constitute punishment” (Filing No. 26, at p.4, quoting Doe v.
Nebraska, 734 F. Supp. 2d 882, 922 (D. Neb. 2010)). Plaintiffs seek to distinguish
Doe v. Nebraska because in that case this court “was not faced with the specific and
unique circumstances present when a juvenile with a juvenile adjudication is subjected
to sex offender registration and notification” (Filing No. 40, at p.3). They argue that
“[i]n determining whether a statute constitutes punishment, courts in applying the
Kennedy factors consider whether the sanction ‘appears excessive in relation to the
alternative purpose assigned.’” (Filing No. 40, at p.3, quoting Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69 (1963)). In Doe v. Nebraska, I ruled that a trial was
necessary to determine the constitutionality of certain amendments to SORA that were
foreign to the federal Sex Offender Registration and Notification Act (“SORNA”),
42 U.S.C. §§ 16901-16991, because there were genuine issues of material fact as to
whether those amendments were so punitive either in purpose or effect as to negate
the legislative intention to deem them civil. See 734 F.Supp.2d at 897-99.

5

“[T]he Nebraska Constitution’s cruel and unusual punishment provision “does
not require more than does the [Eighth Amendment to the] U.S. Constitution.” State
v. Mata, 745 N.W.2d 229, 257 (Neb. 2008) (quoting State v. Hurbenca, 669 N.W.2d
668, 675 (Neb. 2003)).
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Considering that SORNA does not apply to persons adjudicated delinquent as
juveniles if they were less than 14 years old at the time of the offense, or if the offense
was not at least comparable to aggravated sexual abuse, see 42 U.S.C.§ 16911(8),6 and
considering also that Plaintiffs allege that“[t]he State of Nebraska opted not to have
juvenile offenders [who are adjudicated delinquent in Nebraska] comply with sex
offender registration and not to list [such] juvenile offenders on its sex offender
registry website” (Filing No. 24, ¶ 22),7 I conclude that Plaintiffs’ Eighth Amendment
claim should not be dismissed without allowing them to present evidence concerning
the alleged punitive effect of Neb. Rev. Stat. § 29-4003(1)(a)(iv) as applied to Plaintiff
A.W.8 Cf. United States v. Under Seal, 709 F.3d 257, 266 (4th Cir. 2013) (registration
6

Plaintiffs allege that A.W. was 11 years old at the time of his offense (Filing
No. 24, ¶ 29) and “does not present a high risk to commit repeat offenses” (Filing No.
24, ¶ 35). The exact nature of A.W.’s offense is not alleged.
7

As discussed in a previous memorandum and order, the Nebraska Supreme
Court has “not decide[d] whether SORA may ever be applied to juveniles who are
adjudicated as having committed a registerable offense” State v. Parks, 803 N.W.2d
761, 767 (Neb. 2011), but as a matter of practice it appears that juveniles are not
required to register “[u]nless they are found guilty in adult court or they are an
offender who enters the state and is required to register as a sex offender under
the laws of another village, town, city, state, territory, commonwealth, or other
jurisdiction of the United States,” see Nebraska Sex Offender Registry website,
www.sor.nebraska.gov/FAQ. Registration is required under SORA for persons who
have “pled guilty to, pled nolo contendere to, or been found guilty of” specified
crimes, Neb. Rev. Stat. § 29-4003, but the Nebraska Juvenile Code provides that
“[n]o adjudication by the juvenile court upon the status of a juvenile shall be deemed
a conviction ....” Neb. Rev. Stat. § 43-280.
8

“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Determining whether a complaint crosses over the
plausibility threshold is a context-specific task that requires a court “to draw on its
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requirements of SORNA, as applied to juvenile who was adjudicated delinquent for
committing aggravated sexual abuse, did not violate Eighth Amendment; juvenile did
not show “clearest proof” that SORNA’s regulatory scheme was excessive; SORNA
requires registration only for a defined class of older juveniles who are adjudicated
delinquent for committing particularly serious sexually assaultive crimes).
5. No Actionable Fifth Amendment Claim Is Stated
Plaintiffs claim SORA’s public notification provisions violate A.W.’s right to
procedural and substantive due process under the Fifth and Fourteenth Amendments.
However, the Fifth Amendment “only restrains the federal government and none of
[Defendants] are federal employees.” Livers v. Schenck, 700 F.3d 340, 351 (8th Cir.
2012). Plaintiffs concede that no Fifth Amendment claim exists, but Defendants are
also alleged to have violated A.W.’s right to procedural and substantive due process
under the Fourteenth Amendment (and Neb. Const., Art. I, § 3).9
6. No Actionable Procedural Due Process Claim Is Stated
“Procedural due process limits the ability of the government to deprive people
of interests which constitute ‘liberty’ or ‘property’ interests within the meaning of the
Due Process Clause and requires that parties deprived of such interests be provided

judicial experience and common sense.” Id. at 679. “[A] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556, quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
9

“The Nebraska Supreme Court has indicated that the federal and state
constitutions contain similar due process language, and has applied the same analysis
to such claims.” Doe v. Nebraska, 734 F. Supp. 2d at 922 (citing Scofield v. State,
Dept. of Natural Resources, 753 N.W.2d 345, 356 (Neb. 2008)).
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adequate notice and an opportunity to be heard.” Doe v. Nebraska, 734 F. Supp. 2d
at 930 (quoting Murray v. Neth, 783 N.W.2d 424, 432 (Neb. 2010)). “Reputational
damage caused by state action which results in a person’s stigmatization can implicate
a protected liberty interest, but only if it is coupled with some more tangible interest.”
State v. Norman, 808 N.W.2d 48, 61 (Neb. 2012) (quoting State v. Worm, 680 N.W.2d
151, 164 (Neb. 2004)) (applying “stigma-plus” analysis to procedural due process
claim involving public notification under SORA). “[T]o establish a violation of due
process, a plaintiff who complains of governmental defamation must show (1) the
utterance of a statement about him or her that is sufficiently derogatory to injure his
or her reputation, that is capable of being proved false, and that he or she claims is
false and (2) some tangible and material state-imposed burden or alteration of his or
her status or of a right in addition to the stigmatization.” Id.
“Being publicly deemed a sex offender is sufficiently derogatory to injure a
person’s reputation.” Id. However, “stigmatization by the State alone does not give
rise to a liberty interest or necessitate procedural due process.” Id. (citing Paul v.
Davis, 424 U.S. 693, 711 (1976)). “Only where there is a stigma imposed by state
action and where that stigma causes a nontrivial injury which could not have been
initiated by a private citizen will the plus factor be recognized.” Id. The Nebraska
Supreme Court has held that the “extensive and onerous” registration duties imposed
by SORA constitute the plus factor. Id.
In State v. Norman, the State’s labeling of the defendant as a “sex offender” was
capable of being proved false because his “underlying conviction for third degree
assault is not a crime necessarily sexual in nature.” Id. at 60. In the present case, by
contrast, Plaintiffs admit that A.W. “was adjudicated delinquent for criminal sexual
conduct” (Filing No. 24, ¶ 31).
Plaintiffs complain, however, that “Nebraska’s Sex Offender Registry website
... contains a declaration ‘that sex offenders present a high risk to commit repeat
offenses’” (Filing No. 24, ¶ 42). They allege that A.W. “does not present a high risk
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to commit repeat offenses” (Filing No. 24, ¶ 35), but this is immaterial under SORA,
which does not require a risk assessment. See Connecticut Dept. of Public Safety v.
Doe, 538 U.S. 1, 4 (2003) ([D]ue process does not require the opportunity to prove a
fact that is not material to the State’s statutory scheme.”). “In short, even if [Plaintiffs]
could prove that [A.W.] is not likely to [be a repeat sex offender], [Nebraska] has
decided that the registry information of all sex offenders ... must be publicly
disclosed. Unless [Plaintiffs] can show that that substantive rule of law is defective
(by conflicting with a provision of the Constitution), any hearing on [A.W.’s
likelihood to reoffend] is a bootless exercise.” Id. at 7-8 (emphasis in original).
Plaintiffs’ claim “‘must ultimately be analyzed’ in terms of substantive, not
procedural, due process.” Id. at 8 (quoting Michael H. v. Gerald D., 491 U.S. 110, 120
(1989) (plurality opinion)).
7. Plaintiff Have Sufficiently Alleged a Substantive Due Process Claim
To address Plaintiffs’ substantive due process claim, the court “must determine
whether the registration statute implicates a fundamental right.” Gunderson v. Hvass
339 F.3d 639, 643 (8th Cir. 2003). “If the statute implicates a fundamental right, the
state must show a legitimate and compelling governmental interest for interfering with
that right.” Id. “If the statute does not implicate a fundamental right, [the court will]
apply a less exacting standard of review under which the statute will stand as long as
it is rationally related to a legitimate governmental purpose.” Id.
As I explained in Doe v. Nebraska, the “stigma plus” test “does not apply to
substantive due process claims.” 734 F.Supp.2d at 926. The Nebraska Supreme
Court’s holding in State v. Norman is therefore inapplicable to this analysis. “[M]ere
injury to reputation, even if defamatory, does not constitute the deprivation of a liberty
interest.” Connecticut Dept. of Public Safety v. Doe, 538 U.S. at 6-7.
The plaintiffs in Doe v. Nebraska argued that “[p]ublic notification for all
registrants deprives them of their liberty interest in their names, reputations and
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standing in their communities by failing to differentiate between high- and lower-risk
persons on the sex offender registry.” 734 F.Supp.2d at 926. I determined that “[t]his
claim does not implicate a fundamental right.” Id. Plaintiffs’ argument in the instant
case is substantially similar, as they claim A.W. should not be required to register in
Nebraska because he is not likely to be a repeat offender.
Plaintiffs argue that SORA impedes a fundamental right to interstate travel
because “[b]y not applying Nebraska’s sex offender registration laws to resident
juveniles, the State of Nebraska is treating A.W. differently than other citizens of the
State of Nebraska” (Filing No. 40, at p.6).10 In making this argument, Plaintiffs rely
upon the Supreme Court’s decision in Saenz v. Roe, 526 U.S. 489, 500 (1999), which
holds that the right to interstate travel embraces at least three different components:
“the right of a citizen of one State to enter and to leave another State, the right to be
treated as a welcome visitor rather than an unfriendly alien when temporarily present
in the second State, and, for those travelers who elect to become permanent residents,
the right to be treated like other citizens of that State.” Cf. Doe v. Miller, 405 F.3d
700, 712 (8th Cir. 2005) (finding no substantive due process violation because Iowa’s
sex offender registry act “imposes no obstacle to a sex offender’s entry into Iowa, ...
[n]or does [it] violate principles of equality by treating nonresidents who visit Iowa
any differently than current residents, or by discriminating against citizens of other

10

Plaintiffs make a similar argument in support their equal protection claim
(which is not subject to the pending motion), as they allege that “[t]he application of
SORA to Plaintiff A.W. and not to resident juveniles or out-of-state juveniles entering
from states without sex offender registration of juveniles” is unconstitutional (Filing
No. 24, ¶ 40). Although Plaintiffs allege that SORA is not applied to “resident
juveniles,” the amended complaint indicates that A.W. has been residing in Nebraska
since August 2013, which was approximately 14 months prior to the date he registered
under Minnesota’s PORA, thereby triggering the notice from the State of Nebraska
that he is required to register as a sex offender under SORA (Filing No. 24, ¶¶ 30-32).
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States who wish to establish residence in Iowa.”); Doe v. Nebraska,734 F.Supp.2d at
926 (finding that SORA’s in-person reporting requirements do not create an actual
barrier to interstate travel).
Defendants have failed to reply to this argument. Instead, they simply reiterate
their position that no fundamental right is implicated and again note that I have
previously held that “Nebraska’s registration and public notification requirements
are rationally related to a legitimate governmental purpose.”11 Doe v. Nebraska, 734
F.Supp.2d at 930. Because none of the plaintiffs in Doe v. Nebraska was a juvenile
offender, that holding does not require dismissal of A.W.’s substantive due process
claim. I will leave open the question of which standard of review applies.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss (Filing No. 25) is granted
in part and denied in part, as follows:
a.
All claims against the State of Nebraska and the Nebraska State Patrol
are dismissed without prejudice.
b.
Plaintiffs’ Fifth Amendment claim is dismissed with prejudice.
c.
Plaintiffs’ procedural due process claim is dismissed with prejudice.
d.
In all other respects, the motion is denied.
July 13, 2015.

11

Defendants are reminded that our local rules provide that “[t]he reply brief
may not merely repeat the moving party’s initial arguments, but rather must address
factual or legal issues raised in the opposing brief.” NECivR 7.1(c).
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BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

* This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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