Newsome v. Lee

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

THOMAS NEWSOME, )

Plaintiff, )

)

v. ) Civil Action No. 3:21-cv-00041

) Judge Richardson/Frensley

WILLIAM B. LEE, et al., )

Defendants. )

REPORT AND RECOMMENDATION

I. INTRODUCTION AND BACKGROUND

This matter is before the Court upon two Motions: the first, Defendants’ Motion to Dismiss

Plaintiff’s First Amended Complaint (Docket No. 19); and the second, Plaintiff’s Motion for

Preliminary Injunction (Docket No. 21). For the reasons set forth herein, the undersigned

recommends that the Motion to Dismiss be DENIED and that the Motion for Preliminary

Injunction be DENIED.

A. Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint

Defendants’ filed their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

and supporting Memorandum of Law, arguing that: (1) Eleventh Amendment sovereign immunity

deprives this Court of subject matter jurisdiction over Plaintiff’s claims against the State of

Tennessee; (2) Eleventh Amendment sovereign immunity deprives the Court of subject matter

jurisdiction over Plaintiff’s claims for money damages against the individual Defendants in their

official capacities; (3) the Tennessee Sexual Offender and Violent Sexual Offender Registration,

Verification and Tracking Act of 2004 (“SORA”), Tenn. Code Ann. §§ 40-39-201 through 40-39-

218, as applied to Plaintiff, does not impose punishment in violation of the ex post facto clause;

(4) Plaintiff does not allege sufficient facts to show that either Governor Lee or Director Rausch

were personally involved in violating his constitutional rights; and (5) Governor Lee is not a proper

Defendant to this action. Docket Nos. 19, 20.1

Plaintiff has filed a Response opposing Defendants’ Motion. Docket No. 23. In his

Response, Plaintiff lists numerous case citations which he argues discuss “as applied” ex post facto

challenges to the sex offender registration laws of various states. Id. Plaintiff argues that his

allegations demonstrate a sufficient punitive impact on him to support his “as applied” challenge

because “SORA has disrupted Plaintiff’s ability to find housing, obtain a replacement job for the

one that was denied, and travel.” Id.

Plaintiff responds that his injuries stem from the registration requirement because the label

of “Violent Sex Offender” is a global declaration about who he is today, “it declares to the public

that now—right now—Plaintiff is dangerous.” Id. Plaintiff contends that by “merely not informing

the public about Plaintiff’s 1985 conviction that he was found guilty in front of a Davidson County

Criminal Court allows people to reach their own conclusions about who [he is today] and whether

he is dangerous.” Id.

Plaintiff asserts that Defendants “made a conscious, deliberate policy choice to proactively

enforce SORA over the course of at least the past ten years, if not longer. Specifically, Metro

created a series of specialized units to enforce SORA, celebrated that unit’s volume of arrests and

prosecutions for SORA violations, and proactively cooperated with the Tennessee Bureau of

Investigation (“TBI”) to, e.g., make registered sex offenders stay home on Halloween. Given these

readily ascertainable proactive enforcement measures, identified through internet searches, it is

extremely likely that Metro has made myriad other [sic] deliberate policy choices over the past

fifteen years to proactively enforce SORA without regard to offenders’ ex post facto rights.” Id.

1 All served Defendants are parties to this Motion.

(internal citations omitted).

Plaintiff argues that “the only mandatory state policy is for Metro to cooperate in the

quarterly and annual registration of offenders. T.C.A. §40-39-204. Otherwise, Metro’s

enforcement policies are discretionary.” Id. Plaintiff continues, “there is nothing in state law that

requires Metro to go out of its way to arrest and prosecute alleged SORA violators, and nothing

that requires Metro to send detectives out to SORA registrants’ homes to make sure that they are

still residing at their registered addresses.” Id.

Plaintiff further argues that Defendants “knew that this law was unconstitutional as applied

to” him because the previous Director of the TBI and Governor of Tennessee were named in a

2016 lawsuit challenging the retroactive enforcement of provisions of the Act. Id. Plaintiff

contends in his Response that there are statistical disparities that demonstrate “widespread,

systemic racial bias,” that his request to be removed from the registry was denied, and that “the

Governor has a duty to enforce the state laws and the constitution.” Id.

Defendants have filed a Reply to Plaintiff’s Response. Docket No. 24. In it, Defendants

Reply that “not one of the cases cited [by Plaintiff in his Response] is binding precedent in this

case.” Id. Defendants further reply that they continue to assert that an “as applied” challenge

requires the challenging party to plead and prove facts sufficient to show that a statute is

unconstitutional “as applied” to him. Id., citing Women’s Med. Prof. Cor/ v. Voinovich, 130 F.3d

187, 193 (6th Cir. 1997). Defendants note that, although the First Amended Complaint contains

allegations regarding housing, it does not contain any specific, factual allegations regarding travel

or employment. Id. As to the allegations regarding housing, Defendants argue that Plaintiff has not

pleaded facts sufficient to show that the law is unconstitutional as applied to him. Id.

To the extent that Plaintiff alleges individual capacity claims, Defendants reply that

Plaintiff has failed to allege that they had direct involvement in activities that caused the alleged

constitutional deprivation, and that absent such, he cannot sustain this claim. Id. Defendants note

that Plaintiff’s Response contains allegations that were not present in his First Amended

Complaint, and they assert that these additional “arguments amount at most to allegations that

Governor Lee and Director Rausch ‘hold attenuated supervisory positions over those charged with

implementing’ the Act—which, as this Court previously ruled in this case, is insufficient to state

a claim for relief.” Id., citing Docket No. 7.

B. Plaintiff’s Motion for Preliminary Injunction

Plaintiff has filed a Motion for Preliminary Injunction and supporting Memorandum of

Law. Docket Nos. 21, 22. Plaintiff seeks injunctive relief prohibiting Defendants from continuing

to enforce SORA against him because it did not exist at the time of his conviction and therefore is

being applied to him ex post facto. Id. Plaintiff argues that Defendants’ continued enforcement of

SORA imposes ongoing damage to his economic life, liberty, and reputation. Id. Plaintiff

maintains that he has been denied housing, employment, and recreation because of his registry

status, and “must constantly comply with the full panoply of registry requirement[s] on pain of

arrest, incarceration, and felony prosecution.” Id.

Defendants filed their Response, arguing that Plaintiff cannot carry his burden of proving

that the circumstances clearly demand the extraordinary relief that a preliminary injunction affords.

Docket No. 25. Specifically, Defendants argue that Plaintiff has not demonstrated a likelihood of

success as a legal matter on his “as applied” Ex Post Facto claim because the United States

Supreme Court has held that the maintenance of a sexual offender registry that includes offenders

whose crimes were committed prior to the adoption of the registry does not, standing alone, violate

the Ex Post Facto Clause (Smith v. Doe, 538 U. S. 84, 92 (2003), and the Sixth Circuit has held

that Tennessee’s SORA constitutes a civil regulatory scheme and does not violate the Ex Post

Facto Clause (Doe v. Bredesen, 507 F.3d 998, 1000 (6th Cir. 2007). Additionally, Defendants argue

that Plaintiff cannot prevail because his allegations about SORA’s effects, as applied to him, do

not demonstrate that SORA is punitive as applied to him. Id. Defendants further argue that Plaintiff

cannot prevail because his six-month delay in filing this motion demonstrates that he is not “facing

imminent and irreparable injury.” Id. Finally, Defendants argue that the State’s interest in

protecting the public weighs heavily against removing Plaintiff from the Sex Offender Registry.

Id.

Plaintiff, pro se, filed this action pursuant to 42 U. S.C. 1983, alleging that Defendants

“have violated and continue to violate Plaintiff’s Constitutional right against ex post facto

punishment through retroactive imposition on him” of SORA. Docket No. 15. Plaintiff argues that,

as applied to him, SORA constitutes “punishment” within the meaning of the ex post facto clause

of Article 1, § 10 of the United States Constitution. Id. Plaintiff avers that Defendants Lee and

Rausch are “proper official capacity defendants because they both have roles in enforcing

Tennessee’s SORA regime”; and Defendant Rausch is a “proper personal capacity defendant

because he personally directs the enforcement of SORA under color of state law.” Id. Plaintiff

further avers that Metro has a policy and practice of choosing to enforce SORA through proactive

enforcement measures, including by having officers “show up at registered offender’s [sic]

residences without warning to inspect the premises and verify residence” – without excepting those

offenders whose sex offenses predate Tennessee’s enactment of the SORA laws. Id. Plaintiff seeks

declaratory and injunctive relief, “nominal and compensatory damages against Defendants’ State

of Tennessee and Metro,” as well as “money damages for his claims against the individual

Defendants in their personal and official capacities.” Id.

II. FACTUAL ALLEGATIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

In 1984, Plaintiff was convicted of aggravated rape. Docket No. 15, ¶ 7. Plaintiff was

sentenced to 55 years. Id., ¶ 9. Plaintiff’s criminal case judgment did not impose any special sex

offender conditions. Id., ¶ 11. Plaintiff served his sentence in the Tennessee Department of

Correction (“TDOC”). Id., ¶ 12.

At the time that Plaintiff committed this offense, Tennessee did not have SORA. Id., ¶ 8.

At the time that Plaintiff was convicted of this offense, Tennessee did not have SORA. Id., ¶ 10.

In 1994, Tennessee passed SORA. Id., ¶ 13. However, that law required only those persons

deemed sex offenders be registered in a private law enforcement database. Id. Since then,

Tennessee has repeatedly added to its SORA regime. Id., ¶ 14. Tennessee’s current SORA, Tenn.

Code Ann. §40-39-201, et seq., requires quarterly registration with local law enforcement;

payment of quarterly registration and monitoring fees; re-registration within 10 days if the offender

relocates to a new municipality or county; and always carry state-issued identification that has a

“violent sex offender” designation. Id., ¶¶ 15, 17. Tennessee’s current SORA also makes certain

offender identifying information public and places certain restrictions and prohibitions on

offenders. Id., ¶¶ 18, 19. Tennessee’s current SORA also authorizes that public libraries may ban

offenders from their premises; municipalities may implement a community notification system;

and a municipality may charge a resident offender up to $50 per year toward the cost of its

community notification system. Id.; ¶ 20. Under the current SORA, offenders are registered for

life. Id., ¶ 21.

After Tennessee established its SORA, the Metro Nashville Police Department (“MNPD”)

assigned its Sex Crimes Unit the responsibility of maintaining the Sex Offender Registry, which

includes offender registration, offender compliance, and coordination of enforcement actions. Id.,

¶¶22, 24. By 2018, MNPD had created a separate Sex Offender Registry Unit. Id., ¶ 26.

In 2019, Plaintiff was granted parole. Id., ¶ 31. Just prior to Plaintiff’s release from TDOC,

Plaintiff was informed that he would have to register as a “violent sex offender” because of the

SORA that Tennessee had enacted. Id., ¶ 32.

Plaintiff has made several attempts to obtain his own apartment, but each apartment

company to which he has applied has denied him, explaining that the denial is because Plaintiff is

on the sex offender registry. Id., ¶ 34.

Every March, June, September, and December, Plaintiff must spend half a day going to

MNPD to get booked and update his registration paperwork. Id., ¶¶ 36, 37. Plaintiff must pay $150

per year for his registration and monitoring fees. Id., ¶ 35. Any time Plaintiff moves, he must report

his address within 10 days. Id., ¶ 38. At least once per month, Tennessee Department of Parole

Officers randomly come to Plaintiff’s residence to confirm that Plaintiff lives there. Id., ¶ 39.

Plaintiff’s driver’s license contains the words “Violent Sex Offender,” and the Tennessee Bureau

of Investigation (“TBI”) public sex offender registry website clarifies Plaintiff as “Violent.” Id.,

¶¶ 40, 41.

III. LAW AND ANALYSIS

A. Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

Defendants assert Fed. R. Civ. P. 12(b)(1) and 12(b)(6) as grounds for their Motion to

Dismiss. Docket No. 19. Fed. R. Civ. P. 12(b)(1) provides that a complaint may be dismissed for

lack of subject matter jurisdiction, while Fed. R. Civ. P. 12(b)(6) provides that a complaint may

be dismissed if it fails to state a claim upon which relief can be granted. The Court will focus on

the Rule 12(b)(6) Motion.2

Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a claim

upon which relief can be granted. In order to state a claim upon which relief can be granted, a

complaint must contain either direct or inferential allegations respecting all material elements to

sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.

2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not

suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a legally

cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007). The “[f]actual allegations must be enough to raise a right to relief above the speculative

level”; they must “state a claim to relief that is plausible on its face.” Id. At 1965, 1974. See also,

Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).

The United States Supreme Court addressed the appropriate standard that must be applied

in considering a Motion to Dismiss for failure to state a claim. See Ashcroft v. Iqbal, 129 S. Ct.

1937, 137 L. Ed. 2d 868 (2009). The Iqbal Court stated in part as follows:

Two working principles underlie our decision in Twombly. First, the tenet that a

court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the elements of the cause

of action, supported by mere conclusory statements, do not suffice . . . . Rule 8

marks a notable and generous departure from the hyper-technical, code-pleading

regime of a prior error, but it does not unlock the doors of discovery for plaintiff

armed with nothing more than conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss . . . . Determining whether a

complaint states a plausible claim for relief will, as the Court of Appeals observed,

be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. . . . But where the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct, the complaint has

alleged - but it has not “show[n]” - “that the pleader is entitled to relief.”

2 A dismissal for failure to state a claim upon which relief can be granted is a dismissal on the

merits. See Federated Dept. Stores, Inc., v. Moitie, 452 U. S. 394, 399 n. 3 (1981); Pratt v.

Ventas, Inc., 365 F. 3d 514, 522 (6th Cir. 2004). It is therefore unnecessary for the Court to

discuss Defendants’ arguments under Rule 12(b)(1).

129 S. Ct. at 1949-1950, 173 L. Ed. 2d at 884 (citations omitted).

B. Eleventh Amendment Immunity

Regarding a state’s sovereign immunity under the Eleventh Amendment, the Eleventh

Amendment states:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U. S. Const. amend. XI.

The Supreme Court has construed the Eleventh Amendment and/or the related concept of

sovereign immunity to also bar actions by citizens alleging violations of federal law against their

own states in federal or state court. See Alden v. Maine, 527 U. S. 706 (1999); Seminole Tribe of

Florida v. Florida, 517 U. S. 44 (1996); Edelman v. Jordan, 415 U. S. 651, 662-63 (1974); Hans

v. Louisiana, 131 U. S. 1 (1890). The Supreme Court has also held that sovereign immunity bars

citizen suits against states in federal court for violations of state law. Pennhurst State School and

Hospital v. Halderman, 465 U. S. 89 (1984). Moreover, the Court has recognized that the

“sovereign immunity” of the States is a concept “inherent” in the Constitution and that it is not

limited by the language of the Eleventh Amendment. See Alden, 527 U. S. at 728-29.

There are two main exceptions to sovereign immunity. First, Congress can abrogate a

state’s sovereign immunity by passing appropriate legislation pursuant to Section 5 of the

Fourteenth Amendment. See Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U. S. 96,

101 (1989). Second, a state may waive its immunity from suit. See Pennhurst, 465 U. S. at 99-

100. Federal courts cannot assume that a state has waived its sovereign immunity unless the state

has explicitly done so, or there are “such overwhelming implications from the text [of a statute] as

[to] leave room no room for any other reasonable construction.” Edelman, 415 U. S. at 673. See

also, Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002).

C. 42 U. S.C. § 1983

1. Generally

Plaintiff alleges violations of his rights pursuant to 42 U. S.C. § 1983. See Docket No. 15.

§ 1983 provides, in part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress...

Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States and must show that the alleged

deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U. S.

42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U. S. 527, 535, 101 S. Ct.

1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams, 474

U. S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.

S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of acting

under color of state law requires that the defendant in a § 1983 action have exercised power

“possessed by virtue of state law and made possible only because the wrongdoer is clothed with

the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313 U. S.

299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).

2. Claims Against the State of Tennessee

The law is well-settled that a state is not a “person” within the meaning of §1983. See, e.g.,

Will v. Michigan Dep't of State Police, 491 U. S. 58, 71 (1989); Clark v. Kentucky, 229 F. Supp.

2d 718, 722 (E.D. Ky. 2002).

3. Official Capacity Claims

In complaints alleging federal civil rights violations under § 1983, “[a]n official capacity

claim filed against a public employee is equivalent to a lawsuit directed against the public entity

which that agent represents.” Claybrook v. Birchwell, 199 F. 3d 350, 355 n. 4 (6th Cir. 2000),

citing Kentucky v. Graham, 473 U. S. 159, 165 (1985)). See also, Frost v. Hawkins County Bd. of

Educ., 851 F.2d 822, 827 (6th Cir. 1988). As such, when a public employee is sued in his or her

official capacity, the claims are essentially made against the public entity. Id.

4. Individual Capacity Claims

As an initial matter, §1983 liability cannot be predicated upon the theory of respondeat

superior. Polk County v. Dodson, 454 U. S. 312, 325 (1981). See also, Monell v. Dep’t of Soc.

Serv., 436 U. S. 658, 694 (1978); Street v. Corrections Corp. of America, 102 F.3d 810, 818 (6th

Cir. 1996). In order for Defendants to be held liable in their individual capacities, therefore,

Plaintiff must demonstrate that the individual Defendants personally condoned, encouraged, or

participated in the conduct that allegedly violated Plaintiff’s rights. Birrell v. Brown, 867 F.2d 956,

959 (6th Cir. 1989) (citations omitted). See also, Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.

1984), citing Hays v. Jefferson County, 668 F. 2d 869, 872-74 (6th Cir. 1982) (The supervisor

must have “at least implicitly authorized, approved or knowingly acquiesced in” the misconduct.)

Conclusory allegations are not enough. See Street, 886 F.2d at 1479. See also, Anderson, 477 U.

S. at 257; Nix v. O’Malley, 160 F.3d 343, 347 (6th Cir. 1998); Lujan v. National Wildlife Fed'n,

497 U. S. 871, 888 (1990); McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).

Plaintiff must establish a “causal connection between the misconduct complained of and the

official sued.” Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).

D. Defendants’ Motion to Dismiss

1. Sovereign Immunity, Money Damages and Individual Capacity Claims

On initial review, this Court found that “Plaintiff’s Section 1983 claims against the State

of Tennessee, Governor Lee and Director Rausch in their official capacity for money damages and

Declaratory Judgment Act claim under the Tennessee Constitution will be dismissed . . . . .” Docket

No. 7. The Plaintiff’s individual capacity Section 1983 against Governor Lee and Director Rausch

were dismissed for failure to state a claim. Id. at pp. 8-9. The Court has reviewed the Plaintiff’s

First Amended Complaint, nothing in which changes or requires additional consideration of the

Court’s ruling on initial review. These claims remain dismissed.

2. Plaintiff’s Ex Post Facto Claim and Official Capacity Claim Against

Defendant Lee

The Defendants argue that Plaintiff’s challenge based upon the ex post facto clause and

official capacity claim under Section 1983 for prospective injunctive relief against Governor Lee

should be dismissed. The Court disagrees.

As an initial matter, as noted in the Court’s ruling on initial review, much of the Complaint

in this matter appears to be copied from the Complaint in a similar case pending before Chief

Judge Crenshaw, Brown v. Lee, 3:20-cv-916 (Docket No. 1)(Docket No. 7, p. 3). Upon closed

inspection, except for the specific factual allegations regarding the Plaintiff’s convictions and

release to parole, the Complaints, Amended Complaints, Motions for Preliminary Injunction and

Responses to the Defendants’ Motions to Dismiss are virtually identical. Likewise, the same

arguments are asserted by the Defendants in both this case and Brown in support of their motions

to dismiss.

On January 19, 2022, Magistrate Judge Holmes entered a Report and Recommendation

addressing the same issues raised in the instant motion to dismiss. Brown, 3:20-cv-00916, Docket

No. 32. As was the case on initial review, the Court adopts and applies the reasoning of Magistrate

Judge Holmes in Brown as follows:

Article I of the United States Constitution prohibits a State from passing “ex

post facto Laws.” U. S. Const., Art. I, § 10, cl.1. In its most straightforward

formulation, the Ex Post Facto Clause dictates that “[l]egislatures may not

retroactively alter the definition of crimes or increase the punishment for criminal

acts.” Collins v. Youngblood, 497 U. S. 37, 43 (1990). The breadth of the protection

of the Ex Post Facto Clause, however, is not limited to its most straightforward

application, and it is well settled that its protection applies to more than just express

changes to the particular statutory sentence or definition associated with an offense.

Peugh v. United States, 569 U. S. 530, 539 (2013) (noting that the Supreme Court

has “never accepted the proposition that a law must increase the maximum sentence

for which a defendant is eligible in order to violate the Ex Post Facto Clause.”)

(citing Lindsey v. Washington, 301 U. S. 397 (1937)). For that reason, some

statutory provisions that do not impact the sentence or definition of a crime may

have a sufficiently detrimental and disadvantageous impact upon an offender that

the provisions fall within the scope of the Ex Post Facto Clause.

In this context, courts have grappled whether the Ex Post Facto Clause

prohibits the application of registration and monitoring laws to sexual offenders

whose convictions occurred prior to enactment of such laws. See Smith v. Doe, 538

U. S. 84 (2003) (upholding Alaska’s sexual offender registration law); Does #1-5

v. Snyder, 834 F.3d 696 (6th Cir. 2016) (finding that Michigan’s sexual offender

registration law violated Ex Post Facto Clause). Relevant to the case at hand, the

Sixth Circuit has twice upheld Tennessee’s sexual offender registration and

monitoring laws against Ex Post Facto challenges in Cutshall v. Sundquist, 193 F.

3d 466, 476-77 (6th Cir. 1999), and Doe v. Bredesen, 507 F. 3d 998 (6th Cir. 2007).

However, both decisions dealt with previous versions of the Tennessee sexual

offender registration law and not with the current version that applies to Plaintiff

and is at issue in this case.

While the Sixth Circuit has not yet had the occasion to review the current

SORA, lower courts have conducted such reviews and have found (1) that Doe v.

Bredesen does not control such review because the SORA has been amended in

meaningful respects several times subsequent to the decision in Doe v Bredesen

and (2) that the current version of the SORA, with its new and increased mandates

and prohibitions, violates the Ex Post Facto Clause when analyzed under the

“intent-effects” test that is applicable. See Doe #1 v. Lee, 518 F. Supp. 3d 1157,

1204 (M.D. Tenn. 2021) (upon summary judgment motion, the court found the

SORA to violate the Ex Post Facto Clause); Doe v. Rausch, 461 F. Supp. 3d 747,

769 (E.D. Tenn. 2020) (same); Doe v. Rausch, 382 F. Supp. 3d 783, 788 (E.D.

Tenn. 2019) (same).

Furthermore, several courts have reviewed and denied motions to dismiss

brought in cases raising Ex Post Facto challenges to the SORA, These courts found

no merit in requests by the defendants for Rule 12(b)(6) dismissals in the face of

“as applied” challenges supported by allegations in the pleadings of

disadvantageous restrictions and consequences on the plaintiffs caused by the

SORA. See Doe v. Lee, 2021 WL 1907813, at *13 (M.D. Tenn. May 12, 2021)

(Trauger, J); Reid v. Lee, 476 F. Supp. 3d 684, 706 (M.D. Tenn. 2020); Jackson v.

Rausch, 2020 WL 7496528, at *4 (E.D. Tenn. Dec. 21, 2020); Jordan v. William,

2020 WL 4676477, at *18 (M.D. Tenn. Aug. 12, 2020) (Trauger, J.); Doe v. Gwyn,

2018 WL 1957788 (E.D. Tenn. Apr. 25, 2018); Doe v. Haslam, 2017 WL 5187117,

at *19 (M.D. Tenn. November 9, 2017); Doe v. Haslam, 2017 WL 4782853, at *6

(E.D. Tenn. Oct. 23, 2017).

Brown v. Lee, 3:20-cv-916, Docket No. 32, pp 7-9, n. 4.

As in Brown, nothing about the instant case significantly distinguishes it from those cases

at this point in the proceedings. Plaintiff alleges that his conviction occurred prior to SORA

becoming law, that the law will apply to him for the rest of his life, and that his request to be

removed from the registry has been denied. He further articulates that he has suffered numerous

specific and ongoing injuries to his ability to live as a result of being placed on the registry and

comply with the requirements of the law.

As in Brown, based on the allegations in the Plaintiff’s pleadings the Court cannot reach a

conclusion as to whether those effects are punitive and therefore cannot conclude that the act is

non-punitive as a matter of law. Taking the allegations of the Plaintiff’s pleading as true, he has

alleged at least a plausible claim that the present version of SORA is punitive in effect as to violate

the Ex Post Facto Clause. Defendants request to dismiss this claim for failure to state a claim for

relief should therefore be DENIED.

The final argument advanced in Defendants’ motion is that Defendant Lee is not a proper

Defendant to this action. Docket No. 20, pp. 5-6. In support of his motion, Defendant Lee asserts

the identical argument addressed by Magistrate Judge Holmes in Brown. The Defendant argues

that Plaintiff has failed to allege any enforcement of the Act or attempt to enforce the Act by

Defendant Lee and therefore his allegations fail to state a claim against the Defendant. Docket No.

20, p. 5. As in Brown, Defendant Lee references a case from the Eastern District of Tennessee that

supports his position but offers no argument as to why the Court should not follow the analysis in

Doe v. Haslam where this Court rejected this same argument raised by Defendant Lee’s

predecessor as governor. See Doe v. Haslam, 2017 WL 5187117, at *9. Defendant Lee notes that

even if the Plaintiff’s claims against Defendant Lee are dismissed on immunity grounds, “this does

not stop Plaintiff’s claims against Direct Rausch. Therefore, the governor should be dismissed as

a party to this case.” Id. at p. 6. This Court agrees with the reasoning of Magistrate Judge Holmes

in light of the conflicting authority and Defendant Lee’s failure to refer to and address this Court’s

ruling on the issue in Doe v. Haslam, the Motion to Dismiss should be DENIED as to this

argument.

C. Motion for Preliminary Inunction

Also pending before the Court is Plaintiff’s Motion for Preliminary Injunction. Docket No.

21. In this motion, the Plaintiff seeks to prohibit the Defendants from continuing to enforce the

SORA because the SORA imposes mandates and prohibitions on him that are damaging and in

violation of the Ex Post Facto Clause resulting in irreparable harm to him. Docket No. 22. While

the motion states that he relies upon “attached exhibits” and his “verified complaint” no exhibits

were filed in support of the motion nor is the first amended complaint a verified complaint. The

Defendants oppose his motion arguing primarily that there is no likelihood of success on the merits

of his claims, that he does not face irreparable harm and that the public interest is best served by

continuing to enforce the requirements of the statute. Docket No. 25.

The purpose of a preliminary injunction is to preserve the relative positions of the parties

until a trial of the merits can be had. Certified Restoration Dry Clean Network, LLC v. Tenke Corp.,

511 F. 3d 535, 542 (6th Cir. 2007)(citations omitted). The decision as to whether to issue a

preliminary injunction is committed to the trial court’s discretion. N. E. Ohio Coal v. Blackwell,

467 F. 3d 999, 1009 (6th Cir. 2006)(Patio Enclosures Inc. v. Herbst, 39 Fed. Appx. 964, 967 (6th

Cir. 2002). Preliminary injunction is an extraordinary remedy to be applied only in the limited

circumstances which clearly demand it. Leary v. Daeschner, 228 F. 3d 729, 739 (6th Cir. 2000).

The moving party has the burden of proving that the circumstances “clearly demand” a

Preliminary Injunction. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t., 305 F. 3d 566, 573

(6th Cir. 2002). The court must balance four factors in deciding whether to issue a preliminary

injunction “(1) whether the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury without the injunction; (3) whether issuance of the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by issuance of the injunction.” City of Pontiac Retied Employees Ass’n. v. Schimmel, 751

F. 3d 427, 430 (6th Cir. 2014)(en banc)(internal quotation marks omitted).

These four factors are “factors to be balanced, not prerequisites that must be met.” Michael

v. Futhey, 2009 WL 4981688, at *17 (6th Cir., December 17, 2009)(quoting Six Clinics Holding

Corp., II v. Cafcomp Systems, 119 F. 3d 393, 400 (6th Cir. 1997)). Nonetheless, it remains that the

hallmark of injunctive relief is the likelihood of irreparable harm. Patio Enclosures, Inc. v. Herbst,

39 Fed. Appx. 964, 967 (6th Cir. 2002)(“[t]he demonstration of some irreparable injury is a sine

qua non for issuance of an injunction.”); see also Winter v. Natural Resources Defense Council,

Inc., 555 U. S. 7, 22-23, 129 S. Ct. 365, 172 L. Ed 2d 249 (2008)(rejecting the notion that a mere

“possibility” of irreparable injury was sufficient for a preliminary injunction and holding that

“plaintiffs seeking preliminary relief [are required] to demonstrate that irreparable injury is likely

in the absence of an injunction”)(emphasis in original). “A finding that there is simply no

likelihood of success on the merits is usually fatal.” Gonzalez v. National Board of Medical

Examiners, 225 F. 3d 620, 625 (6th Cir. 2000).

The Plaintiff has failed to meet his burden of establishing that a preliminary injunction

should be granted. Specifically, Plaintiff’s motion is unsupported by any evidence as noted above,

Plaintiff has not filed any supporting exhibits or other evidence in support of his motion nor has

he filed his affidavit or declaration. The allegations from the Amended Complaint, while sufficient

to state a claim for relief that defeats the Defendants’ motion to dismiss, are insufficient to support

a claim for preliminary injunction.3 A request to enjoin enforcement of a statute must be supported

by actual evidence that adds substance and detail to the allegations made by Plaintiff about the

impact of the SORA on his situation. In the absence of this type of evidence in the record, there is

nothing upon which the Court can make the necessary determinations required for the issuance of

a preliminary injunction. Therefore, Plaintiff’s motion for preliminary injunction should be

DENIED.

IV. CONCLUSION

For the reasons set forth herein, the undersigned recommends that the Defendants’ Motion

to Dismiss (Docket No. 19) be DENIED and the Plaintiff’s Motions for Preliminary Injunction

(Docket No. 21) be DENIED.

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days

3 While the Plaintiff’s original Complaint included a statement it was filed under penalty of perjury,

Plaintiff’s Amended Complaint is the operative pleading in his case and is not similarly filed as a

verified Complaint. The Court does not view the original Complaint as placing evidence in the

record that supports the allegations of the Amended Complaint and thus the Motion for Preliminary

Inunction.

after service of this Report and Recommendation in which to file any written objections to this

Recommendation with the District Court. Any party opposing said objections shall have fourteen

(14) days after service of any objections filed to this Report in which to file any response to said

objections. Failure to file specific objections within fourteen (14) days of service of this Report

and Recommendation can constitute a waiver of further appeal of this Recommendation. See

Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 Ls. Ed. 2d 435 (1985), reh’g denied, 474 U.S.

1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

— 2 Xe.

hE

United States Magistrate Judge

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