SUSAN RUSS WALKER, Chief Magistrate Judge.
In this 42 U.S.C. § 1983 action, Ronald Phillips, a state inmate, alleges that rights, privileges or immunities afforded him under the Constitution or laws of the United States have been abridged by the defendants. Phillips names former Governor Bob Riley, former Attorney General Troy King, former Director of Public Safety J. Christopher Murphy, former Commissioner of the Alabama Department of Corrections Richard Allen, Director of Central Records Kathy Holt and Director of Classification Carolyn Golson as defendants in this cause of action. Phillips seeks a trial by jury, monetary damages, declaratory relief, preliminary/permanent injunctive relief and costs.
The defendants filed an answer, special report and relevant supporting evidentiary materials addressing Phillips' claims for relief. The court informed Phillips that the defendants' special report may, at any time, be treated as a motion for summary judgment, and the court explained to Phillips the proper manner in which to respond to a motion for summary judgment. Order of December 7, 2010 — Doc. No. 21. Phillips responded to the special report filed by the defendants. Doc. No. 27. Thus, this case is now pending on the defendants' motion for summary judgment. Upon consideration of this motion, the evidentiary materials filed in support thereof and Phillips' response in opposition, the court concludes that the defendants' motion for summary judgment is due to be granted.
"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11
The defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11
Beard v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (internal citation omitted). Consequently, to survive the defendants' properly supported motion for summary judgment, Phillips is required to produce "sufficient [favorable] evidence" which would be admissible at trial supporting his claims of constitutional violations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of Civil Procedure. "If the evidence [on which the nonmoving party relies] is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-250. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11
For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 SW 74
Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F.2d 667, 670 (11
Phillips filed this action while he was incarcerated at the Elmore Correctional Facility in Elmore, Alabama. The evidentiary materials before the court demonstrate that Phillips was convicted in 1998 by the Circuit Court of Houston County, Alabama for first degree sodomy, second degree sodomy, first degree sexual abuse and enticing a child to enter a motor vehicle. The trial court sentenced Phillips to twenty years imprisonment for these convictions. Phillips has been incarcerated since the imposition of his convictions and his projected release date is February 27, 2018.
In the present action, Phillips alleges that the Alabama Community Notification Act ["the Act" or "ACNA"], Ala. Code 1975 § 15-20-1 et seq. (1975, as amended) (repealed), is unconstitutional. In support of the complaint, Phillips makes a variety of allegations claiming abuse, harassment, discrimination and general hardship based on perceived application of the ACNA to him. Phillips also asserts the following federal claims for relief: (1) the defendants' enactment, application and enforcement of the ACNA violates his substantive rights, privileges and immunities protected by the Constitution; (2) the defendants' enactment, application and enforcement of the ACNA violates the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, et seq.; (3) the defendants' enactment, application and enforcement of the ACNA violates the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(1)(a), et seq.; (4) the defendants' enactment, application and enforcement of the ACNA violates the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; (5) the defendants' enactment, application and enforcement of the ACNA violates the Alabama Religious Freedom Amendment, under Art. I, § 3.01 of the Alabama Constitution. Doc. No. 1 at 5-13. In an amendment to the complaint, Phillips complains that the State of Alabama does not provide a classification system for sex offenders on its public registry which would allow sex offenders to be grouped according to an individual assessment of potential dangerousness and risk of re-offending. Doc. No. 16 at 1-2.
To the extent Phillips seeks to sue the defendants in their official capacities, they are immune from monetary damages. Official capacity lawsuits are "in all respects other than name, ... treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). "A state official may not be sued in his official capacity unless the state has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state's immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996). Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence, 916 F.2d 1521, 1525 (11
In light of the foregoing, it is clear that the defendants are state actors entitled to sovereign immunity under the Eleventh Amendment for claims seeking monetary damages from them in their official capacities. Lancaster, 116 F.3d at 1429; Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11
The Alabama Community Notification Act became effective in 1996. On July 1, 2011, the Act was repealed by the Alabama Sex Offender Registration and Community Notification Act, Alabama Act No. 2011-640, § 49, Ala. Code § 15-20A-1, et seq., ["ASORCNA"]. The ASORCNA now governs the registration and community notification requirements applicable to adult sex offenders, see Ala. Code § 15-20A-4(1), and is "applicable to every adult sex offender convicted of a sex offense as defined in Section 15-20A-5, without regard to when his or her crime or crimes were committed or his or her duty to register arose." Ala. Code § 15-20A-3. Upon his release in February of 2018, and assuming no further change in the law, Phillips will be subject to the provisions of ASORCNA due to his prior convictions for first degree sodomy, second degree sodomy, first degree sexual abuse and enticing a child.
Because the ACNA was repealed by the ASORCNA the court must decide whether repeal of the ACNA renders Phillips' challenges to the statute moot. If repeal of the ACNA has rendered Phillips' challenges thereto moot, then such claims must be dismissed for lack of jurisdiction.
Article III of the United States Constitution confers jurisdiction on the district courts to hear and determine "cases" or "controversies." U.S. Const. Art. III, 2. Federal courts are not permitted to rule upon questions which are hypothetical in nature or which do not affect the rights of the parties in the case before the court. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). This is because courts do not sit to render advisory opinions. North Carolina v. Rice, 404 U.S. 244, 246 (1971). An actual controversy must exist at all times when the case is pending. Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974).
A claim becomes moot when the controversy between the parties is no longer alive because one party has no further concern in the outcome. Weinstein v. Bradford, 423 U.S. 147 (1975); Flast v. Cohen, 392 U.S. 83, 95 (1968) ("Where the question sought to be adjudicated has been mooted by developments subsequent to filing of the complaint, no justiciable controversy is presented."). "Article III requires that a plaintiff's claim be live not just when he first brings suit, but throughout the litigation." Tucker v. Phyfer, 819 F.2d 1030, 1034 (11
In Saladin v. Milledgeville, 812 F.2d 687, 693 (11
(citations omitted).
"Generally, a challenge to the constitutionality of a statute is mooted by repeal of the statute." Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1329 (11
The repeal of a challenged law does not necessarily moot a claim for damages by a plaintiff alleging a past violation of his rights. Outdoor Media Group, Inc., v. City of Beaumont, 506 F.3d 895, 902 (9
The record before the court establishes that the provisions of the ACNA were never applied to Phillips; instead, Phillips concedes that he has not "live[d] outside of prison as a sex offender." Doc. No. 1-1 (Affidavit of Ronald L. Phillips) at 2. Thus, it is clear that Phillips bases his claim for damages on a past threat of potential application of various provisions of the now-repealed statute. Phillips may not, however, proceed on prospective damage claims under § 1983. Tanner Advertising Group v. Fayette County, 451 F.3d 777, 786 (11
1. General Claims of Constitutional/Federal Violations. Phillips maintains that by enacting, applying and enforcing the ACNA the defendants willfully subjected him and/or conspired to subject him to alleged violations of his substantive rights, privileges and immunities protected by the Constitution, including various rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments, as well rights protected under Art. 1, § 9, the Constitutional Rights of Incarcerated Persons Act, 42 U.S.C. § 1997, et seq., the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc(1)(a), et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Alabama Religious Freedom Amendment, Art. I, § 3.01 of the Alabama Constitution. To the extent these allegations are not subject to dismissal for the reasons previously set forth in this opinion, infra at 9-13, and to the extent Phillips may bring a cause of action under the above delineated constitutional amendments and/or Acts, his contentions are merely broad assertions of constitutional violations without any facts to support his claims that the defendants violated or conspired to violate his rights under the Constitution and stated statutory provisions through enactment, application and/or enforcement of the ACNA.
In this case, Phillips fails to specify any injury or harm actually caused by the allegedly unconstitutional conduct of the defendants and only conclusorily asserts that upon his release he will suffer "a life of harassment, scrutiny and never ending registration." Doc. No. 1-1 (Affidavit of Ronald L. Phillips) at 2. This shortcoming, coupled with Phillips' broad and unsubstantiated allegations of constitutional violations against the named defendants without any factual development to support his claims against them, renders his response insufficient to defeat the motion for summary judgment. The court, therefore, concludes that the defendants' dispositive motion is due to be granted with respect to the allegations set forth above to the extent these allegations are not otherwise subject to dismissal for lack of jurisdiction.
2. The Sex Offender Registry Classification Claim. In an amendment to the complaint, Phillips contends that the defendants should institute a tiered classification system based on the convicted sex offender's individual dangerousness. Doc. No. 16 at 1. Phillips argues that the failure of the State of Alabama to have such a classification system on its website registry of sex offenders violates his constitutional rights. Id. at 1. Specifically, Phillips maintains that without providing information on the registry of sex offenders as to a registrant's potential dangerousness, those presumably not dangerous registrants must endure the stigma of the general public erroneously thinking otherwise. Id. at 2.
In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), the Court addressed a Fourteenth Amendment Due Process challenge to Connecticut's sex offender registration and notification law on grounds that it did not provide registrants a pre-deprivation hearing to determine whether they were currently dangerous. Reasoning that "due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme," and that Connecticut's registration requirement was "based on the fact of previous conviction, not the fact of current dangerousness," the Supreme Court found that "due process does not entitle [a defendant] to a hearing...." 538 U.S. at 4, 7.
Here, Phillips' contention that he has a constitutional right not to be stigmatized due to omission of a registrant's dangerousness on Alabama's sex offender registry and website listings entitles him to no relief. Although Phillips does not assert violation of a specific federal constitutional right with respect to this claim, the court understands this allegation as one implicating the Fourteenth Amendment Due Process Clause. The law is well-settled, however, that damage to reputation alone does not implicate a protected liberty or property interest. See Paul v. Davis, 424 U.S. 693, 701 (1976). In order for a defamation claim to be viable under § 1983, a plaintiff must show that the "governmental action taken ... deprived [him] of a right previously held under state law." Id. at 708. That is, in addition to showing reputational harm, the plaintiff must also show an alteration or extinguishment of an interest protected by the Constitution or state law. Id. at 708-709. This is known as the "stigma-plus" test. Id. at 711.
The Doe Court applied the "stigma-plus" test in the context of the challenge to Connecticut's sex offender registry law. As noted, the Court determined that because the basis of Connecticut's registration requirement is the fact of conviction alone, dangerousness and the opportunity to be heard on the issue of dangerousness are simply not material issues. 538 U.S. at 7-8. Alabama's current sex offender website registry is based upon the fact of an offender's conviction. There is no statement regarding the dangerousness of the persons listed on the registry. See Alabama Department of Public Safety Community Information Center, available at
3.
L.A. Draper and Son v. Wheelabrator Frye, Inc., 735 F.2d 414, 427 (11
For the foregoing reasons, it is
ORDERED and ADJUDGED that:
1. The plaintiff's motion for preliminary injunction and requests for declaratory and permanent injunctive relief (Doc. No. 1 at 13) be and are hereby DENIED as moot.
2. The plaintiff's challenges to the Alabama Community Notification Act be and are hereby DISMISSED for lack of subject matter jurisdiction.
3. The plaintiff's claim seeking tiered classification of the sex offender registry be DISMISSED as this claim provides no basis for relief.
4. The defendants' motion for summary judgment (Doc. No. 19) with respect to the plaintiff's federal claims for relief be and is hereby GRANTED.
5. The plaintiff's state law claims be and are hereby DISMISSED without prejudice.
6. This case be and is hereby DISMISSED.
7. No costs are taxed herein.
A separate Final Judgment will accompany this memorandum opinion.