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Doe v. Gwyn

United States District Court, E.D. Tennessee, Knoxville

April 25, 2018

JOHN DOE, Plaintiff,
MARK GWYN, Director of the Tennessee Bureau of Investigation, in his official capacity. Defendants.



         Defendant Mark Gwyn (“Director Gwyn”), Director of the Tennessee Bureau of Investigation (“TBI”), filed a motion to dismiss the claims against him pursuant to Fed.R.Civ.P. 12(b)(6) [Doc 9]. Having carefully considered the motion, supporting memorandum [Doc. 10] and plaintiff's response [Doc. 20], the motion is ripe for determination.

         I. Relevant Facts[1]

         Plaintiff John Doe is a Tennessee resident who challenges the constitutionality of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004, as amended, Tenn. Code Ann. §§ 40-39-201-218 (hereinafter “the Act”). Director Gwyn is the Director of the TBI and is sued in his official capacity [Doc. 1 at ¶ 24]. Pursuant to the Act, the TBI is required to: maintain Tennessee's database of sex offenders, maintain an Internet-accessible public sex offender registry, register offenders (along with other law enforcement agencies), develop registration forms, provide statutorily-required notices to registrants, collect registration fees, and coordinate with national law enforcement and the national sex offender registry [Doc. 1 at ¶ 25].

         In 1999, plaintiff entered an Alford plea to one count of attempted aggravated sexual battery and nolo contendere to six other counts of sex-based offenses [Id. at ¶ 16]. Plaintiff completed his sentence on May 21, 2005, and since that time, he has not been subject to any supervision other than under the sex offender registry laws [Id. at ¶ 17]. Plaintiff has had no other criminal convictions since 1999, and he has led a productive life since completing his sentence [Id. at ¶¶ 18-19]. Defendant has been employed as a jeweler since his conviction [Id. at ¶ 18].

         At the time of his guilty plea, Tennessee's then-current sex offender registry statute, the Sexual Offender Registration and Monitoring Act, 1994 Tenn. Pub. Laws, ch. 976, as amended (the “1994 Act”), required plaintiff to register as a “sex offender, ” but did not otherwise restrict his liberty [Id. at ¶ 20]. Further, plaintiff notes that his registration was private because the 1994 Act made the registry information available only to law enforcement [Id.]. The 1994 Act also allowed registrants to apply for removal from the registry ten years after completion of their sentence [Id.].

         The repeal of the 1994 Act and adoption of the current Act in 2004, along with subsequent amendments, has resulted in plaintiff being subject to “numerous, onerous, and vague restrictions on where he can live, work, or go” [Id. at ¶ 21]. For example, plaintiff is now listed in a public internet database, along with his home and work addresses and other identifying information, and he is listed as a “violent sexual offender” [Id.]. In 2014, plaintiff became subject to a lifetime registration requirement [Id.]. Plaintiff must report to a law enforcement agency each year in the month of his birthday and pay a fee of $150 [Id. at ¶ 22]. Plaintiff claims that the retroactive application of the “increasingly onerous and punitive” requirements of the Act “encourage law enforcement to treat him like a pariah and disrupt his and his family members' lives at any moment, without warning or reason” [Id.]. Plaintiff contends that, had he known at the time of his guilty plea that he would be subject to “a lifetime of severe restrictions on his liberty, ” he would have bargained for an alternate disposition or gone to trial [Id. at ¶ 23].

         After passage of the 2004 Act, five years after his guilty plea and conviction, plaintiff became classified as a “violent sexual offender” and subject to lifetime registration without any individualized determination about his risk or whether lifetime registration is warranted [Id. at ¶ 45]. Following the 2014 amendment, fifteen years after his guilty plea and conviction, plaintiff became classified as an “offender against children” and was again subject to lifetime registration without any individualized determination about his risk or whether lifetime registration is warranted [Id.]. Plaintiff contends there is no mechanism under the Act to allow him to have his registration obligations eliminated or reduced [Id. at ¶ 46]. Plaintiff complains about the reporting, surveillance, and supervision requirements of the Act [Id. at ¶¶ 50-55]; the impact of the Act's requirements on his family [Id. at ¶¶ 56-60]; the limits on his access to housing [Id. at ¶¶ 61-63]; the limits on his employment and educational opportunities [Id. at ¶¶ 64-65]; the restrictions on his travel [Id. at ¶¶ 66-72], and his Internet usage and public speech [Id. at ¶¶ 73-77]; and his public stigmatization [Id. at ¶¶ 78-79]. Plaintiff also complains that the restrictions and obligations of the Act are so vague he is unable to know whether or not he is in violation of the law and so extensive and pervasive that he is “literally unable to comply with the law” [Id. at ¶ 80]. Plaintiff argues that the requirements of the Act bear no rational relationship to the risk that individual registrants pose to the community [Id. at ¶¶ 92-98]. Plaintiff further argues that the “Exclusion Zones” defined by the Act restrict access to employment, housing, and his ability to engage in normal human activity [Id. at ¶¶ 99-106].[2]

         Plaintiff alleges that the Act: violates the Ex Post Facto Clause of the United States Constitution [Id. at ¶ 111]; violates his Due Process rights to travel and work [Id. at ¶¶ 112-120]; violates his First Amendment right to free speech [Id. at ¶¶ 121-124]; violates Due Process by imposing retroactive restrictions on him and by breaching his plea agreement [Id. at ¶¶ 125-130]; violates Due Process by imposing criminal liability without any proof of actual knowledge of the duty to comply with the law and due to vagueness and impossibility [Id. at ¶¶ 131-136]. Plaintiff seeks declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 [Id. at ¶¶ 12-13].

         II. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the [opposing party] fair notice of what the . . . claim is and the grounds upon which it rests, '” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do, ” nor will “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). “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. “Determining whether a complaint states a plausible claim for relief will [ultimately] . . . be a context-specific task that requires th[is Court] to draw on its judicial experience and common sense.” Id. at 679.

         III. Whether Director Gwyn is a Proper Party Defendant

         Director Gwyn first argues that he is not a proper defendant because he has no direct or specific authority to enforce the provisions of the Act [Doc. 10 at pp. 3-6]. Director Gwyn argues that the TBI has no general authority as a law enforcement agency to investigate criminal violations of the Act or violations of the residency or employment restrictions. Instead, Director Gwyn argues “TBI's duties under the Act are administrative only, ” such as maintaining the Sexual Offender Registry, creating and distributing forms, considering requests for removal from the registry, and providing copies of records upon request [Id. at p. 5]. In short, Director Gwyn contends that plaintiff has failed to satisfy the requirements of Ex Parte Young, 209 U.S. 123 (1908), for bringing an action against him for injunctive and declaratory relief.

         In response, plaintiff relies on two recent opinions, including one from this Court, which hold that the TBI Director is a proper defendant for such claims because the TBI has extensive responsibilities for establishing and operating Tennessee's sex offender registry [Doc. 20 at pp. 3-5 (citing Doe & Doe v. Haslam, Nos. 3:16-cv-02862, 3:17-cv-00264, 2017 WL 5187117 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, J.), and Doe v. Haslam, No. 3:17-cv-217, 2017 WL 4782853 (E.D. Tenn. Oct. 23, 2017) (Phillips, J.))]. Thus, plaintiff urges the Court to refuse Director Gwyn's “previously made and rejected” arguments [Doc. 20 at p. 4].

         The Eleventh Amendment provides sovereign immunity to the states against suits by its own citizens. U.S. Const. amend. XI. The succinct analysis of the Ex Parte Young exception to Eleventh Amendment immunity in Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015), properly sets the stage for the arguments in this case:

[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). It is a suit against the State itself. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). The Eleventh Amendment bars many such suits. Will, 491 U.S. at 66, 109 S.Ct. 2304. However, there is an exception to States' sovereign immunity under the doctrine announced in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), whereby “a suit challenging the constitutionality of a state official's action is not one against the State.” Pennhurst, 465 U.S. at 102, 104 S.Ct. 900. “In order to fall within the Ex parte Young exception, a claim must seek prospective relief to end a continuing violation of federal law.” Diaz v. Mich. Dep't of Corr., 703 F.3d 956, 964 (6th Cir. 2013). “Young does not apply when a defendant state official has neither enforced nor threatened to enforce the allegedly unconstitutional state statute.” Children's Healthcare is a Legal Duty v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996).

Russell, 784 F.3d at 1046-47; see McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery, 226 F.3d 429, 437 (6th Cir. 2000) (“[a]n action seeking to enjoin enforcement of an allegedly unconstitutional statute through a suit against state officials charged with its enforcement is not barred by the Eleventh Amendment.”). There is no dispute that plaintiff is seeking prospective relief to enjoin enforcement of the Act.

         The Ex Parte Young exception “does not reach state officials who lack a ‘special relation to the particular statute' and ‘[are] not expressly directed to see to its enforcement.'” Russell, 784 F.3d at 1047 (citing Young, 209 U.S. at 157). The Sixth Circuit has noted that the “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Id. at 1048 (quoting 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 113 (3rd Cir. 1993)). Thus, the requirement of “some connection with the enforcement of the act” means there must be “a realistic possibility the official will take legal or administrative actions against the plaintiff's interests.” Id. (citing Children's Healthcare is a Legal Duty v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996), cert. denied, 519 U.S. 1149 (1997)). Without a connection to the enforcement of the act, the government official retains Eleventh Amendment immunity from suit. See Children's Healthcare, 92 F.3d at 1416.

         Director Gwyn argues that he has no authority “to investigate criminal violations of the Act” and the TBI's duties under the Act are “administrative” [Doc. 10 at pp. 4-5]. However, the Sixth Circuit has plainly stated “Young's enforcement element is not confined to criminal actions, ” but may be met “when there is a realistic possibility the official will take legal or administrative actions against the plaintiff's interests.” Russell, 784 F.3d at 1048. As set forth in the complaint, it is not merely “a realistic possibility” that the TBI will take legal or administrative action against Plaintiff Doe's interests. In addition to the Act's many registration requirements implemented by the TBI, plaintiff claims he “was arrested for allegedly violating provisions of the amended statute that require him to register all usernames and social media accounts” [Doc. 1 at ¶ 58]. As Judge Crenshaw noted, “[t]he TBI's duties in the administration of Tennessee's statutory scheme are numerous and significant.” Haslam, 2017 WL 5187117, at *10. Accordingly, the Court finds plaintiff has alleged a plausible claim for relief against Director Gwyn in his official capacity.

         IV. Whether Plaintiff's Claims are Time-Barred

         Director Gwyn argues that all of plaintiff's claims are barred by the one-year statute of limitations for civil rights claims in Tennessee, Tenn. Code Ann. § 28-3-104(a)(3) [Doc. 10 at pp. 6-11]. Director Gwyn contends that plaintiff's claims accrued when he knew or should have known he was subject to the Act's restrictions and potential penalties. Based on the allegations of the complaint, Director Gwyn contends that plaintiff knew or should have known that the restrictions of the Act were being retroactively applied to his conduct as early as May 21, 2005, and at the latest by July 1, 2015. In other words, beginning with the application of the Act to plaintiff upon his release from incarceration in 2005, he has been affected by each subsequent amendment to the Act, including the July 1, 2015 amendment. Thus, plaintiff's challenges should have been filed within one year of the imposition of each of the challenged restrictions. Because this case was not filed until November 22, 2017, more than two years after the latest amendment to the Act, Director Gwyn argues that this case is time-barred. Director Gwyn also argues that plaintiff's allegations do not constitute a “continuing violation” that would toll the statute of limitations.

         Plaintiff argues that the Act “inflicts retroactive punishment on him every day” and thus “a new cause of action accrues every day” [Doc. 20 at p. 5]. Plaintiff emphasizes that he is seeking injunctive relief from future punishment, rather than damages for past punishment [Id. at pp. 5-6]. Plaintiff relies on Judge Crenshaw's rationale in Haslam in support of the continuing violation of his constitutional rights [Id. at p. 7].[3]

         The statute of limitations for a § 1983 action is the statute of limitations for personal injury actions under the state law where the claim arises. Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). Thus, the applicable limitations period for § 1983 claims in Tennessee is one year based on Tenn. Code Ann. § 28-3-104(a).[4]Id. Although the limitations period is borrowed from state law, the “date on which the statute of limitations begins to run in a § 1983 action is a question of federal law.” Id. at 635. ÔÇťOrdinarily, the limitation period starts to run when the plaintiff knows or has reason ...

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