Lemay v. NH Department of Safety, Division of State Police, Sex Offender Registry
Filing
37
///ORDER granting 33 Sealed Motion for Summary Judgment. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Harvey Lemay
v.
Civil No. 11-cv-185-JD
Opinion No. 2013 DNH 039
New Hampshire Department of Safety
O R D E R
Harvey Lemay, proceeding pro se and in forma pauperis,
brought civil rights claims against New Hampshire State Troopers
Rocky, McDonald, and Rowe, alleging that they violated his
Fourteenth Amendment due process rights by characterizing his
convictions in a manner that extended the requirement for him to
register as a sexual offender.
summary judgment.
The defendants filed a motion for
Lemay’s motion to dismiss the motion for
summary judgment was denied, and he did not file an objection to
the defendants’ motion for summary judgment.
Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
“A genuine issue is one that can be resolved in favor
of either party and a material fact is one which has the
potential of affecting the outcome of the case.”
Gerald v. Univ.
of P.R., --- F.3d ---, 2013 WL 310396, at *6 (1st Cir. Jan. 28,
2013).
In deciding a motion for summary judgment, the court
draws all reasonable factual inferences in favor of the
nonmovant.
Kenney v. Floyd, 700 F.3d 604, 608 (1st Cir. 2012).
Background1
The magistrate judge construed Lemay’s complaint, as
amended, “to state a plausible claim against Troopers Rocky,
McDonald, and Rowe, for a deprivation of Lemay’s liberty interest
in not being stigmatized in a manner that alters his legal
status, without due process of law.”
doc. no. 9, at 3.
Report & Recommendation,
In support of that claim, Lemay alleged that
he was subject to sexual offender registration because of a
conviction in Massachusetts until October 9, 2009.
He further
alleged that Rocky recommended that the charges to which Lemay
pleaded guilty in Massachusetts be upgraded to the crime of
felonious sexual assault on a child of fourteen so that Lemay
would be required to register as a sexual offender for life.
1
He
The defendants’ statement of material facts provides a
procedural history of the case. Because the defendants did not
provide a supported statement of material facts, see LR
7.2(b)(1), Lemay’s failure to respond does not cause him to be
deemed to have admitted facts for purposes of summary judgment,
see LR 7.2(b)(2).
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also alleged that McDonald required Lemay to register as a sexual
offender until McDonald retired and that Rowe required him to
register until June 5, 2011, and arrested him for failing to
register.
The magistrate judge noted that Lemay mentioned a
hearing but concluded that there was insufficient information to
know whether he received due process.
Lemay then moved to amend his complaint to add claims
against Denise Perry and Kathy Cliver.
In support of his motion,
Lemay filed the report of the hearings examiner at the New
Hampshire Department of Safety, dated September 24, 2009.
Based
on the report, the court denied Lemay’s motion to amend as
futile.
The report shows that Lemay requested a hearing to review
the issue of whether he was required to register as a sex
offender for life based on his Massachusetts conviction.
A
hearing was held before a hearings examiner, and Lemay appeared
and represented himself.
Hampshire.
Rocky represented the State of New
Denise Perry, Supervisor of the Sexual Offender
Records for the New Hampshire State Police, and Donna R. Page,
Lemay’s wife, also attended the hearing.
The hearings examiner
found that Lemay’s crime of conviction in Massachusetts was
reasonably equivalent to RSA 632-A:3-II, and sustained the
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decision that Lemay was required to register as a sexual offender
for life.
Discussion
The defendants, Rocky, Rowe, and McDonald, move for summary
judgment on the ground that the hearings examiner’s report, which
Lemay submitted with his motion to amend, demonstrates that there
were no deficiencies in the process afforded him.
They contend
that for the reasons the motion to amend was denied as futile,
they are entitled to summary judgment.
Alternatively, the
defendants contend that they are entitled to summary judgment
because Lemay violated the registration requirement which
extended its duration, obviating all of his claimed harm.
A procedural due process claim under the Fourteenth
Amendment “requires a showing that the plaintiff was deprived of
a protected liberty or property interest without adequate notice
and an opportunity to be heard at a meaningful time and in a
meaningful manner.”
Roman-Oliveras v. P.R. Elec. Auth., 655 F.3d
43, 47 (1st Cir. 2011).
Other courts have concluded that
required registration as a sexual offender can implicate a
protected liberty interest.
See Brown v. Montoya, 662 F.3d 1152,
1168 (10th Cir. 2011); Meza v. Livingston, 607 F.3d 392, 401 (5th
Cir. 2010).
The process due before imposing a sexual
4
registration requirement depends on the particular situation.
See Meza v. Livingston, 2010 WL 6511727, at *8-*16 (5th Cir. Oct.
19, 2010).
A.
Hearing
In this case, Lemay apparently received notice that he was
subject to lifetime registration and requested a hearing.
The
hearing was held before a hearings examiner, and Lemay
participated in the hearing.
The hearings examiner made findings
and sustained the registration requirement based on his findings.
Lemay does not allege any procedural deficiencies in the
hearing or the process afforded him.
Although Lemay disagrees
with Rocky’s interpretation of his offense in Massachusetts, the
hearings examiner heard both sides and found that Rocky’s
interpretation was correct.
Therefore, the record shows that
Rocky did not deny Lemay due process.
The bases for Lemay’s claims against McDonald and Rowe are
less clear.
Lemay alleges that they required him to register and
that Rowe arrested him for failing to register.
Lemay
acknowledges that he was required to register until October 9,
2009, based on the Massachusetts conviction.
The lifetime
registration requirement was sustained on September 24, 2009,
before the expiration of the initial registration requirement.
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Therefore, McDonald’s and Rowe’s actions to enforce the
registration requirement were in accord with the registration
requirements applicable to Lemay and were not due process
violations.
B.
Violations
The defendants also argue that Lemay was subject to extended
registration because he violated the initial registration
requirement.
As a result, the extension of the requirement, they
contend, did not cause the harm Lemay alleges.
The court need
not resolve that issue because Lemay received constitutionally
adequate due process before the registration requirement was
extended to Lemay’s lifetime.
Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 33) is granted.
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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 20, 2013
cc:
Harvey Lemay, pro se
Kevin H. O’Neill, Esquire
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