McCarty v. Roos et al

Filing 235

ORDER Granting in part and Denying in part 136 Defendants' Motion to Dismiss. Signed by Judge James C. Mahan on 02/11/2014. (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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2:11-CV-1538 JCM (NJK)

ROBERT JOSEPH MCCARTY,

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Plaintiff,

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v.

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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 Charlene Hoerth, Patrick Saunders, and Catherine

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Cortez Masto’s (“state defendants”) motion to dismiss (doc. # 136). Pro se plaintiff Robert Joseph

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McCarty filed an opposition (doc. # 158), and state defendants filed a reply (doc. # 166).

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

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defendants based on his registration as a tier 1 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. Plaintiff asserts these claims against state defendants in their

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official and individual capacities.

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I.

Dismissal of official capacity claims

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State defendants assert that the Eleventh Amendment bars suit in federal court against state

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employees acting in their official capacities. (Doc. # 136). Therefore, state defendants argue that the

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James C. Mahan
U.S. District Judge

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official capacity claims must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) and

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the Eleventh Amendment. (Doc. # 136). In response, plaintiff argues that there is no Eleventh

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Amendment immunity for 42 U.S.C. § 1983 claims. (Doc. # 158).

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The Eleventh Amendment “bars actions against state officers sued in their official capacities

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for past alleged misconduct involving a complainant’s federally protected rights, where the nature

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of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction.”

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Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988); see also Shaw v. State of California Dept. of

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Alcoholic Beverage Control, 788 F.2d 600, 604 (9th Cir. 1986).

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The instant complaint seeks both retroactive and prospective relief from these defendants.

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(Doc. # 133). Specifically, plaintiff requests injunctive relief and compensatory damages in the

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amount of $850,000.00. (Doc. # 133). It is appropriate to dismiss plaintiff’s official capacity claims

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to the extent they seek damages. See Bair, 853 F.2d at 675. However, to the extent plaintiff seeks

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prospective injunctive relief, dismissal is not proper. Id.; see also Shaw, 788 F.2d at 604.

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II.

Dismissal of individual capacity claims

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State defendants assert that the claims against them in their individual capacities must be

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dismissed pursuant to the doctrine of qualified immunity. (Doc. # 136). The defense of qualified

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immunity protects "government officials performing discretionary functions . . . from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or constitutional

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rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

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(1982). “The principles of qualified immunity shield an officer from personal liability when an

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officer reasonably believes that his or her conduct complies with the law.” Pearson v. Callahan, 555

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U.S. 223, 244 (2009).

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Nev. Rev. Stat. § 179D.460 requires sex offenders convicted of a sexual offense as defined

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by Nev. Rev. Stat. § 179D.097 to register with local law enforcement agencies and the division

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within forty-eight hours after arriving or establishing residence in Nevada. Under Nev. Rev. Stat. §

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179D.097(s), a sexual offense committed in another jurisdiction requires registration in Nevada.

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Based on the plain meaning of Nev. Rev. Stat. § 179D.097(s), plaintiff was required to register

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James C. Mahan
U.S. District Judge

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because of his conviction in Japan of a sexual offense.

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Furthermore, the Sex Offender Registration and Notification Act contains safeguards for

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individuals convicted of sex crimes in foreign countries. For countries that are not specifically

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recognized as having judicial systems equivalent to the United States’, officials are recommended

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to refer to the U.S. Department of State’s annual country report on human rights for the year the

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conviction was obtained to determine if an offender received fundamental fairness and due process.

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Applying the federal guidelines to this case reveals that Japan provided sufficient due process

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guarantees. The Japanese government was deemed to have generally respected the human rights of

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its citizens at the time of plaintiff’s conviction. The Japanese system generally provided an

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independent judiciary, a presumption of innocence, the right to cross-examination and the right not

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to be compelled to testify against oneself.

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Because state defendants were merely applying the procedures specifically laid out in Nevada

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law, the court finds that they reasonably believed that their conduct did not violate plaintiff’s

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constitutional rights. Accordingly, the claims against state defendants in their individual capacities

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will be dismissed.

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III.

Dismissal of defendant Catherine Cortez Masto for lack of personal participation

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State defendants also assert that defendant Attorney General Catherine Cortez Masto should

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be dismissed from this lawsuit because she did not participate in plaintiff’s classification as a sex

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offender. (Doc. # 136). Thus, state defendants assert that Masto is entitled to immunity from

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plaintiff’s claims.

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“Liability under section 1983 arises only upon a showing of personal participation by the

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defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To succeed on a § 1983 claim,

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plaintiff “must prove that the defendants’ actions were the cause in fact and the proximate cause of

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the [plaintiff’s] injuries.” Kraft v. Jacka, 669 F. Supp. 333, 339 (D. Nev. 1987).

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The complaint asserts that Masto conspired to use unauthenticated Japanese court documents

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to make plaintiff illegally register as a sex offender upon return to the United States from Japan.

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(Doc. # 133).

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James C. Mahan
U.S. District Judge

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In order to withstand a motion to dismiss, a claim must be alleged with “sufficient factual

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matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937,

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1949 (2009). Where the complaint does not permit the court to infer more than the mere possibility

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

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Id. (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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In this instance, plaintiff’s claims against defendant Masto fail to meet the standard of

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plausibility. Plaintiff fails to provide particularized allegations as to how defendant Masto and others

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“conspired to deny [plaintiff[ his civil rights” other than to say that they agreed to “cover up” the

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state of the Japanese justice system either in person or telephonically. Even liberally construing pro

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se plaintiff’s complaint, the claims against defendant Masto amount to nothing more than conclusory

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allegations.

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Furthermore, a cursory review of Nevada’s statutes reveals that Nevada’s attorney general

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is not charged with the implementation of any of the sex offender registration laws. See Nev. Rev.

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Stat. § 179D, et seq. The attorney general’s jurisdiction is limited to all state matters arising in the

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executive department of the state government. See Nev. Rev. Stat. § 228.110.

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Therefore, because defendant’s claims against defendant Masto do not meet the standard of
plausibility, defendant Masto will be dismissed from this case.

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Accordingly,

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

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to dismiss (doc. # 136) be, and the same hereby is, GRANTED in part and DENIED in part pursuant

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to the forgoing.

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DATED February 11, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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