Meredith v. Stein, et al

Filing 30

ORDER denying as moot 21 Motion to Stay and denying 14 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction. The parties shall have until July 2, 2018 to conduct discovery, and until August 3, 2018 to file dispositive motions. Signed by US District Judge Terrence W. Boyle on 5/2/2018. (Stouch, L.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-528-BO
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Plaintiff,
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v.
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JOSHUA STEIN, Attorney General of the State of )
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North Carolina, in his official capacity, BOB
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SCHURMEIER, Director of the North Carolina
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State Bureau ofInvestigation, in his official
capacity, and MICHAEL D. WATERS, District
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Attorney of Franklin County, North Carolina, in his )
official capacity,
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Defendants.
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JONATHAN R. MEREDITH

ORDER

This matter is before the Court on defendants' motion to dismiss [DE 14] and motion to
stay discovery and other pretrial proceedings. [DE 21]. The matters have been fully briefed and
are ripe for ruling. A hearing was held before the undersigned in Elizabeth City, North Carolina
on April 10, 2018. For the following reasons, both motions are denied.
BACKGROUND
Plaintiff Jonathan Meredith was convicted in Washington State of "Communication with
a Minor for Immoral Purposes" in 2004. He then moved to North Carolina. According to
plaintiff, when establishing residency here, the Person County Sheriffs office informed him he
did not need to register as a sex offender. The standard for whether an individual convicted of an
out-of-state sex offense must register as a sex offender in North Carolina is whether the offense
was substantially similar to an offense under North Carolina law that would require registration.
N.C.G.S. § 14-208.6(4)(b)-(c). The determination is made by individual sheriffs deputies in the
potential r~gistrant's county ofresidency. That information is then provided to the SBI official

who maintains the list of registrants. Registered sex offenders face significant restrictions in
going about their daily lives. E.g., N.C.G.S. § 14-208.18(a)(3) (Those registered cannot go to
libratjes, arcades, amusement parks, recreation parks, and swimming pools). Failure to register
when required to by law is a felony, and there is no procedure to challenge being required to
register. N.C.G.S. § 14-208.l l(a).
Thirteen years after plaintiff moved to North Carolina, the Wake County Sheriffs office,
where he now lived, informed him he did in fact need to register. After registering, plaintiff filed
this lawsuit, claiming that the mechanism by which those convicted of out-of-state sex offenses
are placed on the North Carolina registry violates his procedural due process rights. Plaintiff
seeks declaratory and injunctive relief. A few months later, plaintiff was removed from the sex
offender registry. Defendants have now moved to dismiss plaintiffs complaint.
DISCUSSION
Defendants have moved to dismiss on three grounds, pursuant to Rules 12(b)(l), (2) and
(6) of the Federal Rules of Civil Procedure. 1 They argue the case is moot, there is no personal
jurisdiction over the defendants, and that plaintiff has failed to state a claim.

I.

Mootness

Defendants have first moved to dismiss for lack of subject-matter jurisdiction, arguing
that plaintiff lacks standing because the case js moot. Mootness and standing are related, yet
distinct concepts. Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 189 (2000). A case is moot

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While defendants did not raise any immunity arguments in their motion to dismiss, they did
discuss immunity in their motion to stay the proceedings pending the consideration of the motion
to dismiss. As the motion to dismiss is ruled on by this order, their motion to stay is mooted, and
no question of immunity is currently before this Court.
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when there is no longer a case or controversy to be resolved by the court. Already, LLC v. Nike,

Inc., 568 U.S. 85, 91 (2013).
Defendants argue that since plaintiff is no longer on the North Carolina Sex Offender
Registry, the case has been mooted. But "voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice." City of Mesquite v.

Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982). If it did, a defendant could freely engage in
unconstitutional activity, as long as he took temporary breaks whenever a lawsuit was filed. Id. at
289 n.10; Laidlaw, 528 U.S. at 189. Because of this concern, a case is only mooted when
"subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior [can] not
reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393
U.S. 199, 203 (1968). A defendant claiming its voluntary action makes a case moot bears a
"formidable burden" in demonstrating this. Laidlaw, 528 U.S. at 189.
According to defendants, this case is moot because plaintiff was removed from the
registry. The removal happened after the instant suit was filed, and defendants have not
explained why plaintiff was removed. They have provided nothing to indicate that plaintiff could
not be required to register again in the future, either by the Sheriff of the county in which he
currently resides or another county to which he could move in 'the future. For these reasons,
defendants' motion to dismiss on the grounds of mootness is denied.
II.

Personal Jurisdiction ,

Next, defendants have moved to dismiss on the grounds that plaintiff lacks personal
jurisdiction over the defendants. A plaintiff bears the burden of showing, by a preponderance of
the evidence, that there is 12(b)(2) jurisdiction. Mylan Labs., Inc. v. Akzo, NV, 2 F.3d 56, 59-60
(4th Cir. 1993).

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A. Attorney General Joshua Stein
First, defendants move to dismiss North Carolina Attorney General Joshua Stein from the
case. Defendants argue that Stein lacks the requisite connection to the alleged constitutional
violation such that he is properly named, and second, that Stein has not threatened to prosecute
plaintiff.
When there is an ongoing violation of federal law, suits may be brought against state
officers in their official capacity in order to obtain prospective relief. Ex parte Young, 209 U.S.
123, 159-60 (1908). To be a proper party, the state officer sued must have "some connection
with the enforcement of the act" in question. Lytle v. Griffith, 240 F.3d 404, 409 (4th Cir. 2009).
This requirement is a practical one: for proper resolution of the question, the proper party must
be before the court. If a party that does not have a relationship to the actual enforcement is sued,
that suit should be dismissed. Whether there is a "special relation" under Ex parte Young is a
question of proximity. South Carolina Wildlife Fed v. Limehouse, 549 F.3d 324, 333 (4th Cir.
2008). The Attorney General has, upon the request of a county's district attorney, !the authority to
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prosecute or assist in the prosecution of criminal cases. N.C. Gen. Stat. § 114-11.6. Plaintiff has
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indicated that defendant Stein has enough of a connection to the enforcement of 1"1orth Carolina
criminal laws to satisfy the requirements for personal jurisdiction under Ex parte Young.
Next, defendants argue that as the Attorney General has not publicly indicated he intends
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to prosecute the plaintiff, he is not a proper party to the case. But the rule is not w~ether plaintiff

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will be prosecuted, but whether he could be: whether he faces a "credible threat of prosecution."

Holder v. Humanitarian Law Project, 561 U.S. 1, 15 (2010).

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Here, the state has not disclaimed its authority to prosecute individuals, including
plaintiff, for failing to register when they should do so. There is personal jurisdiction over
defendant Stein and the motion to dismiss on those grounds as to him is denied.
B. Director Bob Schurrneier
Defendants have also moved to dismiss Defendant Bob Schurrneier for lack of personal
jurisdiction. Defendant Schurrneier is the Director of the State Bureau of Investigation. In that
capacity he manages the database of North Carolina's registered sex offenders. As noted above,
state officials are appropriate defendants in cases like the one before this Court when they are
connected to the enforcement of the allegedly wrongful act. Lytle v. Griffith, 240 F.3d 404, 409
(4th Cir. 2009).
As defendant Schurrneier is responsible for placing individuals, including plaintiff, on the
registry itself, he bears the relationship to the alleged unconstitutional action here such that there
is jurisdiction over him. Again, defendants' claim that there is no personal jurisdiction because
Schunneier has not publicly committed to prosecuting plaintiff fails. Their motion is denied.
C. District Attorney Michael Waters
Finally, defendants argue that there is no personal jurisdiction over Michael Waters, the
Franklin County District Attorney. Plaintiff claims he is a resident of Franklin County, and
defendant Waters, the prosecuting authority in Franklin County, could prosecute him for failing
to register. See N.C.G.S. §14-208.11. As discussed above, the fact that Waters has not publicly
threatened plaintiff with prosecution is insufficient to strip this Court of personal jurisdiction,
and the motion to dismiss for that reason is denied.
III.

Failure to State a Claim

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Defendants have also moved to dismiss on the grounds that plaintiff has failed to state a
claim. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule

12(b)(6), "the court should accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130,
1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility
means that the facts pied "allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Mere recitals of the elements of a cause of action supported
by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint must be dismissed if the factual allegations do not nudge the plaintiffs
claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. The complaint
must plead sufficient facts to allow a court, drawing on judicial experience and common sense,
to infer more than the mere possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumerajfairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009). The Court need not accept the

plaintiffs legal conclusions drawn from the facts, nor need it accept as true unwarranted
inferences, unreasonable conclusions, or arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d
176, 180 (4th Cir. 2009). Taking all facts plausibly alleged by plaintiff as true, he has stated a
claim upon which relief may be granted.
Defendants move to dismiss first on the ground that defendant does not have a protected
liberty interest that implicates due process. In this section of their motion, defendants cite to
some of the Supreme Court's substantive due process cases. [DE 15 at 10]; e.g., Griswold v.
Connecticut, 381U.S.479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942).

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Substantive due process is the principle that there are some government actions so
unjustifiable that there is no process available that could validate them. See U.S. Const. Amend.
V; U.S. Const. Amend. XIV; Sylvia Development Corp. v. Calvert County, Md. 48 F.3d 810, 827
(4th Cir. 1995). By contrast, there are other actions the state may take that affect protected
interests, but are permissible as long as there is proper process. Snider Intern. Corp. v. Town of
Forest Heights, Md., 739 F.3d 120, 146 (4th Cir. 2014). These interests are necessarily less
fundamental than those covered by substantive due process, as that protection is more
. heightened. Sylvia Development Corp., 43 F.3d at 827.
Plaintiff has brought a procedural due process claim. To the extent defendants move to
dismiss on the grounds that plaintiff has not established a fundamental interest protected by
substantive due process, their argument is misplaced. Procedural due process is implicated when
the state alters or extinguishes a previously recognized right or status. Paul v. Davis, 424 U.S.
693, 710-11 (197 6). That is the case here, as plaintiff claims that placement on the registry alters
his previous status as a normal citizen. Once registered, he faces restrictions on where he may
go, live, study, pray and work. [DE 1 at 11].
Defendants go on to argue that if there is such an interest, then the process provided is
sufficient. They make three claims here: first, that plaintiff received due process when originally

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convicted; second, that the availability of a declaratory judgment action provides due process;
and third, that there is an effective post-registration removal process.
Defendants first claim that because the requirement to register follows a conviction for a
sex offense, the registrant received the requisite process when he or she was convicted of that
offense. See Conn. Dep 't ofPub Safety v. Doe, 538 U.S. 1, 7 (2003} It is true that if plaintiff had
been arrested, tried, and convfoted of a clearly registrable North Carolina sex offense, he would

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have had due process. That is in large part because North Carolina law indicates whether the
need for registration is a consequence of violating a particular criminal law. N.C.G.S. § 14208.6(5). By contrast, when plaintiff was convicted of his sex offense in Washington, that court
did not resolve whether his conviction was "substantially similar" to a North Carolina offense
such that he needed to register in North Carolina should he move there. And North Carolina,
when relying on an out-of-state conviction in other circumstances, such as when determining
whether a particular defendant should receive a harsher sentence, does investigate the question.
State v. Burgess, 715 S.E.2d 867, 870-71 (2011). The due process plaintiff received in

Washington is not enough.
Next, defendants argue that plaintiff can file a declaratory judgment action in state court
to argue that his placement on the registry is improper. The ability to file a lawsuit to keep the
state from doing something alleged to be wrongful does not, itself, provide due process.
Finally, defendants claim N.C.G.S. §14-208.12A satisfies due process. This provision
allows registrants to petition to have their registration requirement terminated-but only after ten
years on the registry, and only in specific circumstances. This mechanism is much too limited to
constitute due process for all individuals with out-of-state sex offenses who are instructed to
register. Plaintiff has stated a claim upon which relief may plausibly be granted.
CONCLUSION
For the above reasons, defendants' motion to dismiss [DE 14] is DENIED. Defendants'
motion to stay proceedings pending a ruling on the motion to dismiss [DE 21] is therefore also
DENIED AS MOOT. The parties shall have until July 2, 2018 to conduct discovery, and until
August 3, 2018 to file dispositive motions.

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SO ORDERED.
This the

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day of May, 2018.

UNITED STATES DISTRICT JUDGE

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