Opinion
Civil Action 2:19-cv-0392-DCN-TER
07-15-2021
KING GRANT-DAVIS, Plaintiff, v. ATTORNEY GENERAL ALAN WILSON, MARK KEEL, Chief of the South Carolina Law Enforcement Division, WILLIAM BARR, United States Attorney General, BENJAMIN CARSON, United States Secretary of Department of Housing and Urban Development, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action to challenge the constitutionality facially and as applied to him of South Carolina's Sex Offender Registry Act (SORA), S.C.Code Ann. § 23-3-400, et seq., the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901, et seq., and numerous other federal statutes. Presently before the court are Defendants Mark Keel and Alan Wilson's (the State Defendants) Motion to Dismiss (ECF No. 140), Defendants William Barr and Benjamin Carson's (the Federal Defendants) Motion to Dismiss (ECF No. 136), and Plaintiff's Motion for Partial Summary Judgment (ECF No. 152). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his case. Plaintiff timely filed a Response (ECF No. 149) to the Federal Defendants' motion. He did not file a response to the State Defendants' motion. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. PROCEDURAL HISTORY
Plaintiff filed this action on February 11, 2019. Following Defendants' first Motions to Dismiss, Plaintiff moved to amend his complaint and submitted a proposed amended complaint. Plaintiff's motion was granted and the Amended Complaint was filed. Defendants then filed Motions to Dismiss the Amended Complaint. Plaintiff also filed numerous documents entitled “Notice of Joinder” in which he presented additional factual allegations and claims. In his responses to Defendants' Motions to Dismiss the Amended Complaint, Plaintiff discussed his “joindered claims” and argued that Defendants had not responded to those claims and, thus, waived any defenses to such claims.
In a Report and Recommendation (ECF No. 100) on the Motions to Dismiss, the undersigned noted that the factual allegations and claims set forth in the numerous Notices of Joinder were not properly before the court because they were not included in his Amended Complaint. The undersigned further noted in a footnote that even if Plaintiff were to amend his Amended Complaint to add those allegations and claims, the amendment would be futile. Upon review of the Report and Recommendation and Defendants' Motions to Dismiss, the District Judge in his discretion allowed Plaintiff to amend his Amended Complaint and denied the Motions to Dismiss the Amended Complaint as moot. The Court directed Plaintiff “to include all claims he wishes the court to consider in his second amended complaint, including any claims alleged in his ‘Notice of Joinder' or other filings. The court will not consider any of [Plaintiff's] claims outside of the Second Amended Complaint.” Order p. 6 (ECF No. 126).
Plaintiff filed his Second Amended Complaint and Defendants filed the present Motions to Dismiss the Second Amended Complaint.
III. FACTUAL ALLEGATIONS
In January of 1971, Plaintiff was arrested in Manhattan, New York on a charge of rape of a teenage girl. Sec. Am. Compl. p. 7 (ECF No. 134). Plaintiff entered a guilty plea. Sec. Am. Compl. p. 8. In January of 1978, Plaintiff was released on parole. Sec. Am. Compl. p. 8. In February of 1978, Plaintiff was arrested and charged with “sodomy of a teenage youth.” Sec. Am. Compl. p. 8. A jury reached a verdict of guilty following a four day trial in July of 1978. Sec. Am. Compl. p. 8. Plaintiff was sentenced to 12 to 25 years in state prison, and was eligible for parole in 1985. Sec. Am. Compl. p. 8. Plaintiff appeared before the parole board in 1985, 1987, 1989, 1991, and 1993. Each time, the parole board denied parole upon finding that Plaintiff was a risk to re-offend if released. Sec. Am. Compl. p. 8. Plaintiff's sentence was set to expire in June of 2003. Sec. Am. Compl. p. 8.
In April of 2000, the state board of examiners of sex offenders made a recommendation to the sentencing court that Plaintiff be assigned a “Risk Level 3 and designated a predicate sex offender.” Sec. Am. Compl. p. 9. Following a hearing, the sentencing court accepted the recommendation. Sec. Am. Compl. p. 9. An appeal was made, and the decision was reversed and remanded to the trial court in either 2000 or 2002. Sec. Am. Compl. p. 9. Following two hearings, the court reached the same determination as the original. Sec. Am. Compl. pp. 9-10.
In July of 2000, Plaintiff was released to parole supervision “after he earned condition release by the accumulation of ‘good time.'” Sec. Am. Compl. pp. 8-9. When Plaintiff moved from New York to South Carolina in May of 2005, he was required to comply with the sex offender registration requirements of this state. Sec. Am. Compl. p. 11. In January of 2017, Plaintiff applied for tenantbased or project-based housing assistance, but City of Charleston Housing Authority officials denied his applications pursuant to 42 U.S.C. § 13663, which directs “an owner of federally assisted housing to prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.” Sec. Am. Compl. p. 13; 42 U.S.C. § 13663(a).
IV. STANDARD OF REVIEW
A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
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.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss “so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
V. DISCUSSION
A. Statutes Challenged by Plaintiff
Plaintiff mentions numerous statutes in his Second Amended Complaint: the Jacob Wetterling Act, 42 U.S.C. § 14071, et seq.; South Carolina's Sex Offender Registry Act (SORA), S.C.Code Ann. § 23-3-400, et seq.; the Adam Walsh Act, 18 U.S.C. § 4248; the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901, et seq.; the International Megan's Law, 18 U.S.C. § 2250(b); and 42 U.S.C. § 13663. A brief introduction to the statutes at issue is helpful to the analysis of Plaintiff's claims.
In 1994, Congress enacted the Jacob Wetterling Act, 42 U.S.C. § 14071 et seq., which encouraged States to create facilities for the registration of sex offenders and for notification to law enforcement officers of registration data. As a result of the Jacob Wetterling Act, all States and the District of Columbia established sex-offender registration programs, although different in nature and scope. In addition, through subsequent amendments to the Jacob Wetterling Act, Congress also established a national database at the FBI. See 42 U.S.C. § 14072.United States v. Gould, 568 F.3d 459, 473 (4th Cir. 2009).
In 1994, the South Carolina General Assembly enacted the SORA. See S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2017). Subsection 23-3-430(A) (2007) provides, “Any person, regardless of age, residing in the State of South Carolina ... who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in any comparable court in the United States ... to an offense described below, ... shall be required to register” as a sex offender. Subsection 23-3-430 includes criminal sexual conduct in all degrees as an offense requiring registration. “A person required to register pursuant to this article is required to register biannually for life.” § 23-3-460(A) (Supp. 2017). “A person classified as a Tier III offender . . .is required to register every ninety days.” S.C. Code Ann. § 23-3-460(B). SORA was passed “to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002).
In 1998, Congress enacted provisions barring from admission into federally assisted housing illegal drug users, alcohol abusers, and sex offenders subject to lifetime registration obligations under state law. Quality Housing and Work Responsibility Act of 1998 (the 1998 Act), Pub. L. No. 105-276, tit. V, subtit. F, §§ 576-79, 112 Stat 2461, 2639-43 (codified at 42 U.S.C. §§ 13661-64). Specifically, 42 U.S.C. § 13663, entitled “Ineligibility of dangerous sex offenders for admission to public housing, ” provides: “Notwithstanding any other provision of law, an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.”
Approximately 10 years after the Jacob Wetterling Act was passed, however, “Congress found that the patchwork of standards that resulted from the various state programs and piecemeal amendments had left loopholes and gaps that allowed for numerous heinous crimes.” Gould, 568 F.3d at 473.
On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 (“AWA”) was signed into law. Pub.L. No. 109-248, §§ 101-55, 120 Stat. 587, 590-611 (2006). Title I of the AWA is SORNA, which was enacted for the purpose of “protect[ing] the public from sex offenders and offenders against children” through the creation of a “comprehensive national system for the registration of those
offenders.” 42 U.S.C.A. § 16901 (West 2008). To that end, jurisdictions must “maintain a jurisdiction-wide sex offender registry” that complies with the standards set out by SORNA. 42 U.S.C.A. § 16912(a) (West 2008). Sex offenders are required to provide several types of information for inclusion in the sex offender registry, including their names and aliases, Social Security numbers, addresses of residences, names and addresses of places of employment, names and addresses of educational institutions in which the offenders are enrolled, and vehicle information. 42 U.S.C.A. § 16914(a) (West 2008).
In addition to detailing the kinds of information that must be included in the sex offender registry, SORNA dictates when and how convicted sex offenders must register. See 42 U.S.C.A. § 16913 (West 2008). As a general matter, sex offenders must register and keep their registration current in each jurisdiction where they reside, work, or attend school. 42 U.S.C.A. § 16913(a) (West 2008). Sex offenders are required to initially register in one of two ways: if the sex offender was sentenced to a term of imprisonment for his underlying offense, he must register before completing the sentence of imprisonment for that offense; otherwise, the sex offender must register within three days of being sentenced for the offense. 42 U.S.C.A. § 16913(b) (West 2008). Following the initial registration, sex offenders must keep their registration current by notifying at least one jurisdiction where they are required to register of all changes of name, residence, employment, or student status within three days of the change. 42 U.S.C.A. § 16913(c) (West 2008).United States v. Hatcher, 560 F.3d 222, 224-25 (4th Cir. 2009).
The International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (the International Megan's Law) criminalizes the “knowin[g] fail[ure] to provide information required by [SORNA] relating to intended travel in foreign commerce.” Nichols v. United States, 136 S.Ct. 1113, 1119, 194 L.Ed.2d 324 (2016) (quoting 18 U.S.C. § 2250(b)).
B. Constitutional Challenges
Plaintiff challenges the various statutes at issue in his Amended Complaint as applied to him and facially. “Under the well recognized standard for assessing a facial challenge to the constitutionality of a statute, the Supreme Court has long declared that a statute cannot be held unconstitutional if it has constitutional application.” United States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012). Thus, to succeed in a facial constitutional challenge, a movant “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Because of this stringent standard, a facial challenge is “the most difficult challenge to mount successfully.” Id. Courts may dismiss a facial challenge “by reference to the challenged regulation and its legislative history.” Educ. Media Co. at Virginia Tech v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010). In contrast to a facial challenge, the Court must assess an as-applied challenge based on the facts of a particular case and the application of a statute to a specific person. Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc). Still, a plaintiff making an as-applied challenge must plead facts sufficient to state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 677-78; Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).
C. Claims Asserted by Plaintiff
1. Counts One and Two
Count one of Plaintiff's Second Amended Complaint is entitled “Pariah Enactments.” Sec. Am. Compl. p. 19. Plaintiff alleges that SORA and SORNA both require Plaintiff to register and provide extensive personal information to law enforcement officials every three months, which violates his constitutional rights to control his speech and not be compelled to answer any forms of questioning by law enforcement officers regarding his sex offender status. Sec. Am. Compl. pp. 1920. He alleges that these statutes violate his Fourteenth Amendment right to privacy and his First Amendment right to free speech. Count two of Plaintiff's Second Amended Complaint is entitled “Violation of Other Fundamental Constitutional Rights” and also alleges that the registration and reporting requirements under these statutes violate his Fourteenth Amendment rights and also implicate the Fifth Amendment. Sec. Am. Comp. p. 22.
In general, the First Amendment “‘prohibits the government from telling people what they must say.'” Agency for Int'l Dev. v. Alliance for Open Society Int'l, Inc., 570 U.S. 205, 213, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (further citations omitted)). However, a public sex offender registry does not violate a sex offender's First Amendment rights. See United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014) (in rejecting a claim that SORNA registration requirements do not violate the First Amendment, the court reasoned that “[w]hen the government, to protect the public, requires sex offenders to register their residence, it conducts an ‘essential operation[ ] of [the] government,' just as it does when it requires individuals to disclose information for tax collection” and further stating that the Constitution does not provide a sex offender “with a right to keep his registry information private”); United States v. Fox, 286 F.Supp.3d 1219, 1223-24 (D. Kansas 2018) (concluding that registration, including providing the government with “facts, ” under SORNA does not offend the First Amendment because even though it compelled the defendant to speak it serves a compelling government interest in a narrowly tailored fashion); Prater v. Linderman, No. 1:18-CV-992, 2019 WL 6711561, at *9 (W.D. Mich. Dec. 10, 2019); Davis v. Thompson, No. 19-3051-SAC, 2019 WL 6327420, at *3 (D. Kan. Nov. 26, 2019). Therefore, Plaintiff fails to state a claim under the First Amendment.
To the extent Plaintiff claims a violation of his right to privacy, the Fourteenth Amendment provides a constitutional right to privacy, which the Fourth Circuit has limited to matters concerning marriage, contraception, family relationships, and child rearing and education. See Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir.1990). “Personal, private information in which an individual has a reasonable expectation of confidentiality is protected by one's constitutional right to privacy.” Id. However, because a right to privacy protects only information with respect to which the individual has a reasonable expectation of privacy, information that is freely available in public records is not protected. Id. at 193 (citing Fraternal Order of Police, Lodge 5 v. Philadelphia, 812 F.2d 105, 112-113 (3d Cir.1987). Plaintiff complains that being compelled to answer questions from law enforcement about his past sex offense conviction, personal affairs, information about his body, residence, and any personal activities violates his right to privacy. Courts have held that “[t]he privacy interest of sex offenders in keeping their personal information confidential is not a privacy interest of constitutional dimension.” Willman v. United States Off. of Att'y Gen., No. 19-10360, 2019 WL 4809592, at *5 (E.D. Mich. Oct. 1, 2019), affd sub nom. Willman v. Att'y Gen. of United States, 972 F.3d 819 (6th Cir. 2020) (noting that the Constitution does not encompass a general right to nondisclosure of private information and holding that the plaintiff's right to privacy claim with respect to SORNA was “not plausible on its face”); Valentine v. Strickland, No. 5:08-CV-00993, 2009 WL 9052193, at *8 (N.D. Ohio Aug. 19, 2009)(“[T]here is no fundamental right to privacy that is deeply rooted in our Nation's history in the context of sex offender registration statutes.”)); Cf. Prynne v. Settle, 848 Fed.Appx. 93, 105 (4th Cir. 2021) (holding with respect to Virginia's sex offender registry statute that “to the extent that any of the information in the registry could be deemed nonpublic, such as a registrant's work or home address or appearance, the public disclosure is justified by the government's interest in protecting the public by alerting them of the location of known sex offenders); Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999)(“The Constitution does not provide Cutshall with a right to keep his registry information private, and the Act does not impose any restrictions on his personal rights that are fundamental or implicit in the concept of ordered liberty, such as his procreative or marital rights.”); Clive v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (“[T]here is no constitutional right to privacy in one's criminal record.”). Plaintiff fails to state a claim under the Fourteenth Amendment for violation of his right to privacy.
Plaintiff also argues that SORNA and SORA violate his right under the Fifth Amendment not to be compelled to be a witness against himself. However, SORNA's registration requirement does not violate an offender's Fifth Amendment privilege against self-incrimination. United States v. Simon-Marcos, 363 Fed.Appx. 726 (11th Cir. 2010) (finding no violation because none of the information the offender was required to provide confronted him with a substantial hazard of selfincrimination and because SORNA was not designed to uncover criminal behavior, but was instead intended to protect public from sex offenders by tracking their interstate movement); United States v. Juvenile Male, 670 F.3d 999, 1011 (9th Cir. 2012) (finding no Fifth Amendment violation because SORNA requires only an acknowledgment that an offender has been previously adjudicated or convicted of a crime). Plaintiff fails to state a claim for a Fifth Amendment violation.
2. Count Three
In count three, Plaintiff alleges that “SORNA is Unonstitutional and Ulteriorly Vindictive and Punitive.” Sec. Am. Compl. p. 22. Within this count, Plaintiff sets forth portions of the legislative history behind SORNA to assert that the congressional intent behind the statute is vindictive and punitive. Specifically, Plaintiff alleges that the true purpose of the lifetime registration requirement is “for severity upon the offender and not [because] it is necessary to achieve a goal of safety of society.” Sec. Am. Compl. p. 26.
Of course, that a statute is punitive does not by itself make the statute unconstitutional. It is only when a statute authorizes “retroactive punishment” that is unconstitutional. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The Constitution forbids Congress or the states from passing any ex post facto law. See U.S. Const. art. I, § 9, cl. 3; Id. § 10, cl. 1. An ex post facto law is one that “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326, 18 L.Ed. 356 (1866)), limited on other grounds by Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
A threshold question in determining whether a statute is an ex post facto law is whether the challenged statute in fact authorizes punishment. United States v. Wass, 954 F.3d 184, 189 (4th Cir. 2020). “If the intention of the legislature was to impose punishment, that ends the inquiry”; retroactive application of such a punishment would violate the Constitution. Smith, 538 U.S. at 92. But if the legislature's intention “was to enact a regulatory scheme that is civil and nonpunitive, ” courts must examine “whether the statutory scheme is so punitive either in purpose or effect as to negate” that intention. Id. (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)) (internal quotation marks omitted).
The Fourth Circuit has addressed the argument raised here as to whether SORNA's registration requirement is punitive in purpose or effect. In Wass, 954 F.3d at 192, the defendant argued, inter alia, that SORNA's “registration requirement itself is so punitive that it constitutes punishment for the underlying sex offense, and thus that requiring him to register violates the ex post facto clause.” The Wass court held that the defendant's argument could not succeed because the court has already held that “SORNA is non-punitive, ‘both in purpose and effect.'” Id. (citing United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013)). In Under Seal, the Fourth Circuit first concluded that congress intended SORNA's registration requirements “to create a non-punitive regulatory framework to keep track of sex offenders.” Id. at 264. It then used the framework that the Supreme Court established in Smith to conclude that SORNA's registration requirements are non-punitive: “Appellant cannot show, much less by the ‘clearest proof,' that SORNA's effects negate Congress' intent to establish a civil regulatory scheme.” Id. The Fourth Circuit reiterated this holding as the law of this circuit in Wass. Wass, 954 F.3d at 193. This holding compels the conclusion in the present case that SORNA's registration requirements are not punitive and, thus, do not violate the ex post facto clause.
“Under the Smith framework, a court asks whether, in its necessary operation, the regulatory scheme: (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to this purpose.” Wass, 954 F.3d at 193 (citing Smith, 538 U.S. at 97) (internal quotations marks omitted).
3. Count Four
Similarly, in count four, Plaintiff alleges that “SORA is Punitive and Unconstitutional.” Sec. Am. Compl. p. 26. However, applying the Smith factors set forth above, the South Carolina Supreme Court has held that SORA, South Carolina's sex offender registry statute, “is not so punitive in its purpose or effect as to constitute a criminal penalty.” State v. Walls, 348 S.C. 26, 31558 S.E.2d 524, 526 (S.C.2002); see also Jones v. Glover, No. 1:09-2670, 2011 WL 489942, at *2 (D.S.C. Jan. 12, 2011), report and recommendation adopted, No. C/A 1:09-2670, 2011 WL 489940 (D.S.C. Feb. 7, 2011). Thus, Plaintiff's argument fails.
4. Count Five
In count five, Plaintiff asserts that “Congress Lacked Jurisdiction and Power to Enact and Apply the Wetterling and Walsh Acts” to him. Sec. Am. Compl. p. 29. This count appears to be a hodge podge of various claims. Plaintiff alleges that “it is not within Congress' power to dictate to the states how to control crime” nor is it “necessary or proper for Congress to pass legislation to guide or control the States' efforts to control crime within their jurisdiction.” Sec. Am. Compl. p. 30. He also alleges that “Congress violated the separation of powers doctrine by passing the Wetterling Act and the Walsh Act and coerced the individual states to adopt and enforce those crime control policies and applying them to the plaintiff in the states.” Sec. Am. Compl p. 30. In addition, he alleges that he is entitled to relief because “no proper bicamera review process was followed by Congress to enact” SORNA. Sec. Am. Compl. p. 31. He alleges that application of SORNA to him “abridg[es] [his] privileges and immunities” and subjected him to double jeopardy. Sec. Am. Compl. p. 31. Plaintiff also alleges that the International Megan's Law violates separation of powers, is arbitrary, and was not a necessary and proper legislation by Congress. Sec. Am. Compl. pp. 31-32.
These types of naked assertions, which are devoid of any factual enhancement, are insufficient to state a plausible claim. See Twombly, 550 U.S. at 555. The “labels and conclusions” are insufficient to meet the Rule 8 standard. Further, many of these claims have been raised and rejected by the Supreme Court, the Fourth Circuit, and/or other federal courts. See, e.g., United States v. Kebodeaux, 570 U.S. 387, 393-97 (2013) (holding that both the Wetterling Act and SORNA are proper exercises of Congressional authority under the Necessary and Proper Clause); Gundy v. United States, ___U.S.___, 139 S.Ct. 2116, 2121, 204 L.Ed.2d 522 (Kagan, J.) (plurality opinion), reh'g denied, ___U.S. ___, 140 S.Ct. 579, 205 L.Ed.2d 378 (2019) (holding that delegation of authority to Attorney General in SORNA to specify the retroactive applicability of SORNA's registration requirements did not violate the nondelegation doctrine, and thus, separation of powers); Orfield v. Virginia, No. 3:12CV541-HEH, 2012 WL 3561920, at *2 (E.D. Va. Aug. 16, 2012) (citing Ballard and holding that because registration of sex offenders is not punitive, it does not run afoul of constitutional prohibitions on Bills of Attainder or double jeopardy); As such, dismissal is appropriate on these causes of action.
5. Counts Six and Seven
Count six is entitled “Unconstitutional Retroactive Sex Offender Laws.” Therein, Plaintiff asserts that the Attorney General erroneously determined that SORNA could be applied retroactively. He argues that congress evidenced no intent that SORNA be applied retroactively. This allegation is directly related to count seven, in which Plaintiff asserts that delegation by Congress to the Attorney General to specify the application of the registration requirements of SORNA to offenders convicted before the act became law was improper. The Supreme Court has specifically addressed and foreclosed this argument. Gundy v. United States, ___ U.S. ___, 139 S.Ct. 2116, 2121, 204 L.Ed.2d 522 (Kagan, J.) (plurality opinion), reh'g denied, ___ U.S. ___, 140 S.Ct. 579, 205 L.Ed.2d 378 (2019). In Gundy, the Court held that SORNA's provision authorizing the Attorney General to specify the applicability of SORNA's registration requirements to offenders convicted of sex offenses before SORNA's enactment did not violate the non-delegation doctrine. Id.; see also United States v. Wass, 954 F.3d 184, 188 (4th Cir. 2020) (applying Gundy). The delegation provision at issue here and in Gundy provides
The Attorney General Shall have the authority to specify the applicability of the
requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).34 U.S.C. § 20913(d). The Gundy court rejected Gundy's reading of the statute, similar to Plaintiff's here, that it empowers the Attorney General “to do whatever he wants as to pre-Act offenders, ” such as making them all register immediately or exempting them from registration forever or anything in between. Gundy, 139 S.Ct. at 2126. Rather, reading the delegation provision “in context and with a view to [its] place in the overall statutory scheme, ” the Supreme Court concluded that “specify the applicability” as used in the delegation provision did not mean “specify whether to apply SORNA” to pre-act offenders, but rather “specify how to apply SORNA” to preact offenders. Id. at 2128. As such, the Court held that the delegation in SORNA “easily passes muster” as a constitutional delegation of authority to the Attorney General. Id. at 2129. Thus, Plaintiff's allegation that the delegation violates the “nondelegation doctrine” is without merit. Likewise, because the Supreme Court found that the delegation provision did not leave it to the Attorney General to determine whether it would be applied retroactively, but how it would be applied retroactively, Plaintiff's argument that SORNA's retroactive application was erroneously determined by the Attorney General is also without merit. Counts six and seven fail to state a claim for relief.
Subsection (b) requires an offender to initially register either before completing the sentencing giving rise to the registration requirement or not later than 3 business days after being sentenced if the sentence does not include a term of imprisonment. 34 U.S.C. § 20913(b).
6. Count Eight
In Count Eight, Plaintiff asserts that his exclusion from federally assisted housing benefits due to his lifetime registration requirement is an equal protection violation and is, thus, unconstitutional. Section 13663 of Title 42 of the United States Code provides that “an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.” Equal Protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment to the Constitution. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Legislation is subject to rational basis scrutiny unless it discriminates against members of a suspect class or implicates a fundamental right. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985); Schweiker v. Wilson, 450 U.S. 221, 230 (1981); Heller v. Doe, 509 U.S. 312, 319-320 (1993).
“To the extent that the Complaint asserts that sex offenders are a suspect or quasi-suspect class, neither the United States Supreme Court, nor the Fourth Circuit, has directly addressed this specific issue. However, all other federal Circuit Courts that have addressed this issue have found that they are not.” Wiley v. WV House of Delegates, No. 2:14-CV-10974, 2017 WL 663671, at *7 (S.D. W.Va. Jan. 30, 2017), report and recommendation adopted sub nom., 2017 WL 663350 (S.D. W.Va. Feb. 17, 2017) (citing Roe v. Marcotte, 193 F.3d 72 (2d. Cir. 1999); Artway v. Atty. Gen., 81 F.3d 1235 (3d. Cir. 1996); Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014); Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999); United States v. Lemay, 260 F.3d 1018, 1030-31 (9th Cir. 2001); Riddle v. Mundragon, 83 F.3d 1197, 1207 (10th Cir. 1996); Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005); Windwalker v. Gov. of Alabama, 579 Fed.Appx. 769 (11th Cir. 2014)). Further, “the possibility of receiving federal housing assistance under 42 U.S.C. § 1437f does not rise to the level of a constitutionally-protected property interest.” Cunningham v. Parkersburg Hous. Auth., No. CIV A 605-CV-00940, 2007 WL 712392, at *7 (S.D. W.Va. Mar. 6, 2007) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Phelps v. Housing Auth. of Woodruff, 742 F.2d 816, 822 (4th Cir.1984)(prospect of receiving housing assistance merely an expectation, not an entitlement arising to the level of a constitutionally-protected interest). Therefore, rational basis scrutiny applies here.
Under the rational basis standard, the challenged statute is entitled to a “strong presumption of validity.” FCC v. Beach Communications, 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The statute need only be “‘rationally related to a legitimate state interest.'” Pulte Home Corp. v. Montgomery Cty., 909 F.3d 685, 693 (4th Cir. 2018). The Fourth Circuit has instructed that, to withstand a motion to dismiss, a plaintiff “‘must plead sufficient facts to overcome the presumption of rationality that applies to government classifications.'” Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008) (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992)). Aiding low-income families in obtaining safe and secure public housing is a legitimate governmental interest. Cunningham, 2007 WL 712392, at *8. Plaintiff has failed to plead facts sufficient to overcome the presumption of rationality and, therefore, dismissal of this cause of action is appropriate.
In sum, sex offender registration statutes, both state statutes and SORNA, have been repeatedly challenged and upheld under numerous theories including those raised by Plaintiff. See generally “Validity, Construction, and Application of Federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901 et seq., its Enforcement Provision, 18 U.S.C.A. § 2250, and Associated Regulations, ” 30 A.L.R. Fed. 2d 213. Further, even though Plaintiff alleges that these statutes are unconstitutional as applied to him, he points to no factual allegations showing how the application to him, as opposed to all individuals required to register under these statutes, renders them unconstitutional. Even though as-applied challenges are more fact-driven than facial challenges, as stated above, a plaintiff making an as-applied challenge must still plead facts sufficient to state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 677-78; Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008). The pleading standard in Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 677-78. Plaintiff's second amended complaint fails to meet this standard, and, thus, dismissal is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that the State Defendants' Motion to Dismiss (ECF No. 140) be granted, the Federal Defendants' Motion to Dismiss (ECF No. 136) be granted, Plaintiff's Motion for Partial Summary Judgment (ECF No. 152) be denied, and this case be dismissed in its entirety.