McCarty v. Roos et al

Filing 234

ORDER Granting 156 Defendants' Motion to Dismiss Official Capacity Claims with prejudice. Signed by Judge James C. Mahan on 02/10/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROBERT JOSEPH MCCARTY,

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2:11-CV-1538 JCM (NJK)

Plaintiff,
v.
JOHN V. ROOS, et al.,

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Defendants.

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ORDER

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Presently before the court is defendants U.S. Department of State, U.S. Department of

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Justice, Hillary Clinton, John Roos, Joseph Koen, Stuart Delery, Vincent Garvey and Lynn Lee’s

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(“federal defendants”) motion to dismiss official capacity claims (doc. # 156). Pro se plaintiff Robert

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Joseph McCarty filed an opposition (doc. # 159), and federal defendants filed a reply (doc. # 162).

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In this case, plaintiff Robert Joseph McCarty asserts numerous claims against federal

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defendants based on his registration as a tier-one sex offender in Nevada. Plaintiff argues that he was

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denied due process when he was convicted of a sex crime in Japan, and thus that it violates several

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of his constitutional rights to require him to register as a sex offender in the United States. Plaintiff

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requests relief in the form of $850,000 as well as the expunction of all records that identify him as

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a convicted felon and a sex offender.

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On December 7, 2012, the court issued an order dismissing all claims against federal

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defendants, but gave leave for plaintiff to amend his complaint. (Doc. # 112). In this order the court

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stated, “if the second amended complaint is similarly deficient, the court may conclude that further

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James C. Mahan
U.S. District Judge

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leave to amend would be futile.” Id. Subsequently, plaintiff filed an amended complaint that raises

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claims that are strikingly similar to the claims in his prior complaint, but now adds that federal

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defendants’ actions violate more constitutional provisions than he had first alleged.

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I.

Legal standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can

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be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements

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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S.

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at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

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“state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when

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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations

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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.

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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not

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suffice. Id. at 1949.

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Second, the court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the

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alleged misconduct. Id. at 1949.

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Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged–but not shown–that the pleader is entitled to relief.” Id.

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(internal quotations omitted). When the allegations in a complaint have not crossed the line from

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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

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James C. Mahan
U.S. District Judge

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The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth,

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allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively. Second, the factual allegations that are taken as true must

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plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to

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be subjected to the expense of discovery and continued litigation.” Id.

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IV.

Discussion

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As an initial matter, the court acknowledges that the amended complaint and opposition to

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the instant motion are pro se, which are held to less stringent standards. Erickson v. Pardus, 551 U.S.

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89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however

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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

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lawyers.”) (internal quotations and citations omitted).

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Plaintiff’s second amended complaint attacks the constitutionality of the Sex Offender

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Registration Notification Act’s (“SORNA”) foreign conviction provision as applied in this case well

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as the alleged conduct of federal defendants in relation to the enforcement of this provision.

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Specifically, plaintiff alleges that this provision violates plaintiff’s procedural and substantive due

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process rights as well as his rights under the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth

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Amendments to the United States Constitution.

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a. Procedural Due Process

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In evaluating procedural due process, the Ninth Circuit has outlined a two-step inquiry: “The

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first asks whether there exists a liberty or property interest which has been interfered with by the

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[s]tate; the second examines whether the procedures attendant upon that deprivation were

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constitutionally sufficient.” United States v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir. 2012) cert.

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denied, 133 S. Ct. 234 (U.S. 2012) (citation omitted).

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James C. Mahan
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In this instance, the court need not determine whether the limitations placed on plaintiff as

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a tier-one sex offender constitute interference with a liberty or property interest, because the law is

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clear that the procedures that federal defendants followed were constitutionally sufficient.

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Ninth Circuit precedent clearly holds that, with regard to sex offender registry requirements,

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the fact that an individual has already been convicted in a procedurally safeguarded proceeding is

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sufficient to conform with the requirements of due process. Juvenile Male, 670 F.3d at 1014.

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SORNA specifically contains safeguards for individuals convicted of sex crimes in foreign

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countries. For countries that are not specifically recognized as having judicial systems equivalent to

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the United States’, officials are recommended to refer to the U.S. Department of State’s annual

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country report on human rights for the year the conviction was obtained to determine if an offender

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received fundamental fairness and due process.

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In reference to the instant case, the Japanese government was deemed to have generally

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respected the human rights of its citizens at the time of plaintiff’s conviction. The Japanese system

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generally provided an independent judiciary, a presumption of innocence, the right to cross-

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examination and the right not to be compelled to testify against oneself.

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Therefore, because the United States recognizes that convictions issued in Japan adhered to

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constitutional due process requirements, and because plaintiff does not dispute that he was convicted

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of a sex crime in Japan, plaintiff does not put forward a sufficient claim that his procedural due

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process rights were violated by federal defendants.

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b. Substantive due process

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For a substantive due process claim, the Supreme Court has described the “fundamental”

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rights protected by substantive due process as “those personal activities and decisions that this Court

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has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of

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constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.” Juvenile

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Male, 670 F.3d at 1012 (quoting Washington v. Glucksberg, 521 U.S. 702, 727 (1997)). “Those

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rights are few, and include the right to marry, to have children, to direct the education and upbringing

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James C. Mahan
U.S. District Judge

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of one’s children, to marital privacy, to use contraception, to bodily integrity, to abortion, and to

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refuse unwanted lifesaving medical treatment.” Id.

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Further, a plaintiff must provide “a careful description of the asserted fundamental liberty

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interest,” Glucksberg, 521 U.S. at 721, or “a narrow definition of the interest at stake,” Raich v.

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Gonzalez, 500 F.3d 850, 863, (9th Cir. 2007) (citing Glucksberg, 521 U.S. at 722). Lastly, the Ninth

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Circuit has stated that “individuals convicted of serious sex offenses do not have a fundamental right

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to be free from sex offender registration requirements.” Juvenile Male, 670 F.3d at 1012 (citing Doe

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v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004)).

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Plaintiff does not allege violation of any of the fundamental rights identified by the Supreme

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Court. Further, plaintiff has failed to provide a “careful description of the asserted fundamental

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liberty interest.” See Glucksberg, 521 U.S. at 721. Thus, the court need not consider whether this

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unidentified right is “deeply rooted in our history and traditions . . . .” Juvenile Male, 670 F.3d at

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1012. Therefore, the court finds that plaintiff’s second amended complaint fails to state a claim for

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a violation of substantive due process.

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c. Equal protection

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In his complaint, plaintiff argues that he has a constitutional right “not to be treated

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differently than other registrants on a sex offender registry who were all provided full United States

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[c]onstitutional [d]ue [p]rocess and equally, if they were convicted in a foreign court, all the rights

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included in those foreign courts, to include but not limited to the rights, equivalent to United States

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[d]ue [p]rocess [r]ights.” (Doc. # 133 p. 9) (emphasis in original).

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Plaintiff has not clearly identified how SORNA treats him differently from sex offenders who

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were convicted under the U.S. criminal justice system (or systems that grant criminal defendants the

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same rights and privileges as the U.S.). Nor has plaintiff shown a discriminatory purpose behind any

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supposedly disparate treatment of subjects of foreign convictions. See Iqbal, 556 U.S. at 676-77

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(purposeful discrimination “requires a decisionmaker’s undertaking a course because of, not merely

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in spite of, the action’s adverse effects upon an identifiable group”) (citations and internal quotation

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marks omitted).

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James C. Mahan
U.S. District Judge

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Indeed, it seems that SORNA’s statutory scheme treats all individuals convicted of sexual

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offenses, both in domestic and foreign courts, in precisely the same way. A conviction for a sex

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offense is sufficient to warrant that an individual register as a sex offender regardless of the country

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that issued the conviction, as long as that country is recognized as respecting due process. Therefore,

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plaintiff does not state a sufficient claim for a violation of the Equal Protection Clause.

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d. Retaliation

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Plaintiff alleges a vast conspiracy between federal defendants that included deliberate

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attempts to “cover up” the alleged injustices he suffered under the Japanese system. He asserts that

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defendants Roos and Koen, together with then-Secretary of State Clinton, various other State

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Department employees and current and former Department of Justice counsel in this case, including

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the attorneys who previously represented the United States and defendants Roos and Koen in their

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official capacity, conspired to “make [plaintiff] illegally register as a sex offender” and, relatedly,

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to conceal, suppress, and otherwise “cover up” evidence of plaintiff's alleged abuse and ill treatment

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by the Japanese justice system. (Doc. # 133 pp. 33-35, 37-38).

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He also asserts that federal defendants acted out of “invidiously discriminatory animus” and

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in retaliation for plaintiff’s exercise of his First Amendment rights. See id. Plaintiff fails to establish

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any plausible claim to relief.

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With respect to the first charge, plaintiff has failed to show that his having to register under

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SORNA was “illegal,” or that any of the federal defendants had a duty to ensure that he would not

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have to register as a sex offender. Nor has he shown that any of the federal defendants were

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personally responsible for SORNA’s alleged violation of his constitutional rights.

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To the extent that plaintiff is attempting to assert a claim of First Amendment retaliation for

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his writing letters to “Congress, [m]edia, and [h]uman [r]ights [g]roups,” such a claim fails. Plaintiff

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has not alleged a basis for retaliatory action, and he does not assert a clear deprivation of a benefit

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or a punitive act such as a prosecution, arrest, or adverse employment action. See Hartman v. Moore,

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547 U.S. 250, 256 (2006).

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James C. Mahan
U.S. District Judge

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In addition, plaintiff cannot show that but for federal defendants’ alleged animus he would

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not have had to register–given that the law, independent of the defendants’ particular actions, clearly

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required him to register. See id. at 260; see also Lacey v. Maricopa Cnty, 693 F.3d 896, 917 (9th Cir.

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2012). To the extent that plaintiff’s alleges “invidiously discriminatory animus” to frame an equal

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protection claim against federal defendants, plaintiff does not explain how he was treated differently

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from other similarly situated people, or indeed who these similarly situated people even are.

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Plaintiff has not pled facts sufficient to show that by allegedly forcing him to register, federal

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defendants were acting out of a discriminatory purpose rather than the legitimate public interest of

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protecting society from sex offenders. See Iqbal, 556 U.S. at 683 (finding complaint “does not

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contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of

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mind.”).

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e. Other rights

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Finally, plaintiff contends that federal defendants violated several of his civil rights, including

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the right to live and assemble on specific properties, the right to petition the government for a redress

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of grievances, the right to bear arms, the right to be secure in one’s person, the right to trial by an

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impartial jury, the right not to be put twice in jeopardy, the right to vote, the right that cruel and

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unusual punishment not be inflicted, the right that no person be held to answer for infamous crime

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(sex offender) without legal safeguards, and the right that no capriciously imposed limits be set on

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his employment, housing, and other aspects of his life. (Doc. # 133 p. 35-36).

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The court previously held in its prior dismissal order that plaintiff failed to state a claim

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based upon these contentions. Plaintiff merely reasserts these civil rights claims in his second

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amended complaint and fails to cure any of the deficiencies identified by the court. Thus, the court’s

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holding and findings as to these claims remain. As to “rights that are implicated by the criminal

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justice system, such as double jeopardy and cruel and unusual punishment, SORNA cannot violate

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these rights because it is a civil regulatory scheme.” Id. at 10 (citing Juvenile Male, 670 F.3d at

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1013-14).

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James C. Mahan
U.S. District Judge

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The court previously held that plaintiff “does not provide a sufficient factual basis to

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determine how SORNA’s registration requirements” violate plaintiff’s right to petition for redress

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of grievances, the right to bear arms, and the right to vote. Id. at 10-11. As to plaintiff’s contention

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that he had a right to a jury trial, the court held that “plaintiff fails to explain how SORNA confers

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or deprives this right or why he was entitled to a jury trial in Japan.” Id. at 11. Finally, the court held

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in its prior dismissal order that “plaintiff does not explain how SORNA’s requirement to report

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certain information associated with travel places an unconstitutional burden on his right to travel.”

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Id. Plaintiff fails to correct for any of these deficiencies his second amended complaint, and therefore

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these claims will similarly be dismissed.

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f. Claims for damages

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Sovereign immunity shields the federal government from suit, including suits against federal

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officials in their official capacities, in the absence of a waiver. FDIC v. Meyer, 510 U.S. 471, 475

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(1994); Balser v. Dep’t of Justice, Office of U.S. Trustee, 327 F.3d 903, 907 (9th Cir. 2003). To the

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extent that plaintiff seeks damages against the United States pursuant to 42 U.S.C. § 1983, that

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statute only creates a cause of action against persons acting under color of state law. See Stonecipher

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v. Bray, 653 F.2d 398, 401 (9th Cir. 1981).

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To the extent that plaintiff seeks damages pursuant to Bivens v. Six Unknown Named Agents

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of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), it is well established that Bivens actions can only

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be brought against federal employees in their individual capacities. Correct. Svcs. Corp. v. Malesko,

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534 U.S. 61, 70 (2001); see also Meyer, 510 U.S. at 484-86 (declining to extend Bivens to federal

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agencies). Therefore, neither § 1983 claims nor Bivens claims can lie against defendants in their

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official capacities because they are barred by sovereign immunity.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that federal defendants’ motion

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to dismiss official capacity claims (doc. # 156) be, and the same hereby is, GRANTED.

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James C. Mahan
U.S. District Judge

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It is further ordered that plaintiff’s claims against defendants U.S. Department of State, U.S.

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Department of Justice, Hillary Clinton, John Roos, Joseph Koen, Stuart Delery, Vincent Garvey and

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Lynn Lee in their official capacities are DISMISSED WITH PREJUDICE.

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DATED February 10, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
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