Littlefield v. Slatery

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DONALD R. LITTLEFIELD, )

)

Plaintiff, )

)

v. ) NO. 3:19-cv-00490

)

HERBERT H. SLATERY, III, et al., ) JUDGE RICHARDSON

)

Defendants. )

MEMORANDUM OPINION

Before the Court is a pro se complaint under 42 U.S.C. § 1983 (Doc. No. 1), filed by

Plaintiff Donald R. Littlefield, formerly (including at the time he filed the complaint) an inmate of

the Sumner County Jail in Gallatin, Tennessee, and currently confined in the custody of the

Davidson County Sheriff’s Office. (See Doc. Nos. 6, 7.) Plaintiff has also filed an application for

leave to proceed in forma pauperis (IFP). (Doc. No. 5.)

This matter is now before the Court for a determination of Plaintiff’s pauper status and an

initial review of the complaint pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

APPLICATION TO PROCEED AS A PAUPER

Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may apply for

permission to file suit without prepaying the filing fee of $350.00 required by 28 U.S.C. § 1914(a).

Because it is apparent from Plaintiff’s IFP application that he lacks the funds to pay the entire

filing fee in advance, his application (Doc. No. 5) will be granted by separate Order.

INITIAL REVIEW OF THE COMPLAINT

I. PLRA SCREENING STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any IFP complaint that is

facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief. Similarly, Section 1915A

provides that the Court shall conduct an initial review of any prisoner complaint against a

governmental entity, officer, or employee, and shall dismiss the complaint or any portion thereof

if the defects listed in Section 1915(e)(2)(B) are identified. Under both statutes, this initial review

of whether the complaint states a claim upon which relief may be granted asks whether it contains

“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”

such that it would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill

v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

“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 678. Applying this standard, the Court must view the complaint in the light most

favorable to Plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett v.

M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551

F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be liberally

construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However,

pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure,

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the Court “create a claim which [a

plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608, 613 (6th

Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).

II. SECTION 1983 STANDARD

Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42

U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color

of state law, deprives an individual of any right, privilege or immunity secured by the Constitution

or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a

Section 1983 claim, Plaintiff must allege two elements: (1) a deprivation of rights secured by the

Constitution or laws of the United States, and (2) that the deprivation was caused by a person

acting under color of state law. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014).

III. ALLEGATIONS AND CLAIMS

Plaintiff sues the Tennessee Attorney General, Herbert H. Slatery, III, as well as the

Director of the Tennessee Bureau of Investigation, Mark Gwyn,1 each in their official capacity,

claiming that his constitutional rights have been violated by their enforcement of the Tennessee

Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004

(hereinafter, “the Act”), Tenn. Code Ann. § 40-39-201 et seq. (Doc. No. 1 at 5.) Following his

1992 conviction of aggravated rape, Plaintiff was sentenced to a term of imprisonment in the

custody of the Tennessee Department of Correction (TDOC). (Id.) No sex offender registration

requirement existed at the time of Plaintiff’s conviction. (Id.) However, upon his release from

TDOC custody in 2002, Plaintiff was required to register as a violent sexual offender. He claims

that he has been unconstitutionally subjected to retroactive application of the Act’s requirements,

1 Mark Gwyn actually had stepped down as Director of the Tennessee Bureau of Investigation (TBI) long before

Plaintiff even filed the complaint. But Plaintiff’s failure to correctly name the current TBI official sued in his official

capacity is immaterial for purposes of the Court’s initial screening of the complaint.

such that now, under the current version of the Act, he is required to register in person with state

authorities every 90 days for the rest of his life or be subjected to punishment by incarceration

which “cannot be suspended, probated, or diverted.” (Id. at 5–6.)

Plaintiff alleges that the requirements of the Act have resulted in “punishment at the hands

of his fellow citizens - not the state - by the loss of community status, several jobs, and multiple

loss[es] of housing.” (Id. at 10.) He claims that the current version of the Act “as amended since

2004”2 is “punitive in substance and effect,” “creates retroactive punishment,” and is thus

unconstitutional. (Id. at 7–12.) Plaintiff alleges that his loss of status, jobs, and housing due to

public disclosure of his sex-offender status is so punitive “that it literally has forced the Plaintiff

to go underground and not comply” with the Act’s requirements. (Id. at 10.) He claims that the

Act’s enforcement violates his First Amendment right to free speech, his Eighth Amendment right

to be free from cruel and unusual punishment, and his Fourteenth Amendment right to due process.

(Id. at 7.)

As relief, Plaintiff asks the Court to declare that the Act imposes retroactive punishment

and award permanent injunctive relief prohibiting the Act’s enforcement, “including the

dissemination of information regarding registration” under the Act. (Id. at 13.)

IV. ANALYSIS

Plaintiff claims that the Act, as applied to him,3 violates his First, Eighth, and Fourteenth

Amendment rights. However, these constitutional claims are based on Plaintiff’s argument for the

2 In 2004, the Tennessee legislature repealed its original sex offender registration statute (the Sex

Offender Registration and Monitoring Act of 1994) and replaced it with the Act, which has since been

amended on multiple occasions. See Doe v. Haslam, No. 3:16-cv-02862, 2017 WL 5187117, at *2 (M.D.

Tenn. Nov. 9, 2017).

3 While Plaintiff also purports to mount a facial challenge to the Act (see Doc. No.1 at 9 (“[The Act]

as amended since 2004 is unconstitutional on its face and as applied to Plaintiff as it creates retroactive

punishment.”)), the gravamen of the complaint is its claim that the Act is invalid in the fact-specific context

application here of case law that considered other states’ sex offender registration laws as applied

to the particular plaintiffs in those cases (Doc. No. 1 at 8–9),4 rather than factual allegations that

could give rise to a plausible claim of First, Eighth, and Fourteenth Amendment violations in this

case. Liberally construing the complaint as raising a challenge under the Ex Post Facto Clause, the

only requirement of the Act alleged as the source of any violation is the requirement that Plaintiff

register in person with state authorities every 90 days for the rest of his life. (Id. at 5.) His only

allegation of resulting harm is the nonspecific report of “the loss of community status, several jobs,

and multiple loss[es] of housing” due to the judgment of his fellow citizens, and the only relief he

seeks is an injunction “prohibiting enforcement of [the Act] including the dissemination of

information regarding registration.” (Doc. No. 1 at 10, 13.)

Even broadly construing the complaint’s sparse allegations, the Court cannot find that

Plaintiff has stated any plausible claims of First, Eighth, or Fourteenth Amendment violations

attributable to the Act, rather than to the fact of his conviction of a violent sex offense. Cf. Burns

v. Helper, No. 3:18-cv-01231, 2019 WL 5987707, at *7 (M.D. Tenn. Oct. 24, 2019)

(recommending dismissal where complaint’s allegations did not support plausible Sixth, Eighth,

and Fourteenth Amendment claims resulting from “the Act itself,” and where allegation of harm

of its retroactive application to Plaintiff, a “violent” sexual offender. For this reason, and because facial

challenges are disfavored particularly when an as-applied challenge is also made, Washington State Grange

v. Washington State Republican Party, 552 U.S. 442, 450 (2008), the Court does not view the complaint as

stating a colorable claim that the Act should be stricken in toto as facially unconstitutional. See Warshak v.

United States, 532 F.3d 521, 529 (6th Cir. 2008) (noting that the point of a facial attack is “to leave nothing

standing,” since success on a facial challenge to a statute requires “that no set of circumstances exists under

which the Act would be valid”) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

4 Plaintiff relies on Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (holding that retroactive

application of Michigan’s sex offender registration statute punished plaintiffs in violation of Ex Post Facto

Clause), Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017) (holding that Colorado statute as applied

to plaintiffs violated their Eighth and Fourteenth Amendment rights), and Packingham v. North Carolina,

137 S. Ct. 1730 (2017) (holding North Carolina statute that barred registered sex offenders from accessing

commercial social networking sites invalid under First Amendment).

“turns on the fact of his conviction and not on the Sex Offender Registration Act”), report and

recommendation adopted, No. 3:18-cv-01231, 2019 WL 5964546 (M.D. Tenn. Nov. 13, 2019)

(Campbell, J.); accord Smith v. Doe, 538 U.S. 84, 101 (2003) (“Although the public availability

of the information may have a lasting and painful impact on the convicted sex offender, these

consequences flow not from the Act’s registration and dissemination provisions, but from the fact

of conviction, already a matter of public record.”). The allegation that Plaintiff must register with

law enforcement every 90 days or incur liability, standing alone, plainly does not support a

colorable claim that his rights related to free speech, cruel and unusual punishment, or due process

have been violated. See Burns, 2019 WL 5987707, at *7 (rejecting Eighth and Fourteenth

Amendment claims where plaintiff failed to plead any facts that would support the inference that

the Act’s requirements or restrictions were cruel and unusual, denied a procedural safeguard, or

burdened a fundamental right).

Furthermore, “[i]t is well-settled that the state may adopt some retroactive registration and

reporting requirements for sexual offenders without categorically violating the Ex Post Facto

clause.” Doe v. Haslam, No. 3:16-cv-02862, 2017 WL 5187117, at *19 (M.D. Tenn. Nov. 9, 2017)

(Crenshaw, C.J.) (citing Smith, 538 U.S. at 92). True, the Act’s registration requirement may be

onerous and the public dissemination of Plaintiff’s status as a violent sex offender painful. But the

bare allegation that he is subject to these things despite no such law being on the books in 1992

when he was convicted, and that he will be liable if he fails to register, combined with the

conclusory assertion that this amounts to “retroactive punishment” (Doc. No. 1 at 9, 12, 13), is not

sufficient to state a plausible Ex Post Facto claim. See United States v. Coleman, 675 F.3d 615,

619 (6th Cir. 2012) (rejecting argument that sentence for failing to comply with registration

requirement of federal statute “actually punishes the prior sex offense and not the failure to

register,” and that application of statute “to individuals who committed the underlying sex offense

prior to its effective date [therefore] retroactively increases the punishment for the subject offense

after its commission’) (citing United States v. Felts, 674 F.3d 599, 605-06 (6th Cir. 2012) (relying

on “unanimous consensus among the circuits” that federal statute providing for conviction of a sex

offender who fails to register “does not increase the punishment for the past conviction” of a sex

offense, and thus does not violate Ex Post Facto Clause)).

In sum, Plaintiff has failed to plead sufficient facts to support the claimed constitutional

violations resulting from the Act, as applied to him. His complaint will therefore be dismissed.

CONCLUSION

For these reasons, the Court finds that Plaintiff has failed to state a claim upon which relief

may be granted, and that this case must therefore be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B)Gi).

An appropriate Order will enter.

Shi Rich aadtcon

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE