Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doe v. Rausch

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

May 20, 2019

JOHN DOE, Plaintiff,
DAVID B. RAUSCH, Director of the Tennessee Bureau of Investigation, in his official capacity, Defendant.



         This civil action presents a constitutional challenge to the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (hereinafter the “Act”), Tenn. Code Ann. §§ 40-39-201 - 40-39-218 (2018). Pending before the Court are the cross motions for summary judgment filed by Plaintiff John Doe and Defendant David B. Rausch, Director of the Tennessee Bureau of Investigation (“TBI”) [Docs. 28, 45]. Both motions have been fully briefed [Docs. 31, 40, 48, 51, 54, 57], counsel presented their arguments on March 11, 2019, and the motions are ripe for determination.

         For the reasons set forth herein, the Plaintiff's motion for summary judgment [Doc. 28] will be GRANTED in part and DENIED in part and the Defendant's motion for summary judgment [Doc. 45] will be GRANTED in part and DENIED in part.

         I. Relevant Facts

         The facts as set forth in the Amended Complaint are largely undisputed. In 2006, Plaintiff was charged with several sex offenses involving a minor victim, described as eleven (11) years old, in the State of North Carolina [Doc. 52 at ¶¶ 8-9].[1] On August 15, 2006, Plaintiff pled guilty to the charge of Indecent Liberties with a Child, in violation of N.C. Stat. 14-202.1 [Id. at ¶ 9]. As a consequence of his guilty plea and conviction, Plaintiff was required to and did register as a sex offender on the State of North Carolina's Sex Offender Registry [Id. at ¶ 11]. After relocating to Tennessee, Plaintiff was required to and did register as a sex offender on the State of Tennessee's Sex Offender Registry (the “Registry”) [Id. at ¶ 12]. Plaintiff has continued to report annually with the Registry and complied with the requirements of the Act [Id. at ¶ 14].

         Plaintiff admits that when he goes in for his annual reporting, he asks the officer of the registering agency whether there have been any changes to the registration form [Doc. 45-2 at p. 8]. Plaintiff is given the opportunity to ask questions and the officer always answers any questions he has [Id. at pp. 9-10]. Plaintiff denies that he has had any logistical difficulties with the actual reporting process, other than instances when he has been short on funds and the registering agency has allowed him to pay his annual registration fee late [Id. at pp. 10-11].

         Tennessee first adopted a sex offender registration law in 1994 [Doc. 52 at ¶ 20]. The 1994 law was repealed and replaced in 2004 [Id. at ¶ 21]. The Act has been amended several times since 2004, including the 2014 Amendment of which plaintiff complains [Id. at ¶ 22]. Prior to the 2014 Amendment, registrants who were not subject to the lifetime registration requirement could apply to the TBI for removal from the Registry after ten years [Id. at ¶¶ 21, 23]. In 2014, Tenn. Code Ann. § 40-39-207 was amended to state as follows:

(g)(1) An offender required to register under this part shall continue to comply with the registration, verification and tracking requirements for the life of that offender, if that offender: …
(C) Has been convicted of an offense in which the victim was a child of twelve (12) years of age or less.

Tenn. Code Ann. § 40-39-207(g)(1)(C). Thus, prior to the 2014 Amendment and at the time of his guilty plea, Plaintiff was required to remain on the registry for only ten (10) years [Doc. 52 at ¶ 23]. The effect of the 2014 Amendment requires that he comply with the Act for life.

         Generally speaking, the Act requires sex offenders to provide correct, detailed personal information to the state database of sex offenders, some of which is included in an internet-accessible public sex offender registry [Id. at ¶¶ 19, 21]. Offenders must report in-person annually to verify and update their registration information [Id. at ¶ 21]. The Act imposes geographic restrictions on where registered offenders may live, work, or “be upon or remain” or “stand [or] sit idly” [see Id. at ¶ 24; Tenn. Code Ann. §§ 40-39-211(a), (d)]. Registered offenders must provide advance notification of travel outside of the state or country [see Tenn. Code Ann. § 40-39-204(h); Doc. 56 at pp. 14-15]. Failure to comply with the requirements of the Act may subject an offender to fines or felony criminal charges [see Tenn. Code Ann. §§ 40-39-208, 40-39-211].

         On the ten-year anniversary of his initial registration, Plaintiff contacted the TBI requesting his removal from the Registry [Doc. 52 at ¶ 15]. The TBI informed Plaintiff that it needed additional information based on a 2014 Amendment which required a registered offender to remain on the Registry for life if the offense involved a victim twelve (12) years of age or younger [Id. at ¶ 16]. With the assistance of counsel, Plaintiff submitted the requested information [Id. at ¶ 17]. The TBI denied Plaintiff's request to be removed from the Registry, citing the 2014 Amendment [Id. at ¶ 18].

         Prior to his request to be removed from the Registry, the Plaintiff held a good job as a sales representative, which required that he make deliveries within a varying geographical area [Doc. 56 at p. 4]. Plaintiff was “completely straight” with his employer, who was aware of plaintiff's status on the Registry [Id. at pp. 6-7]. The company made accommodations for deliveries to places that Plaintiff could not go, such as schools, to be handled by other employees [Id. at p. 7]. However, when Plaintiff learned that he would not be removed from the Registry, his employer was no longer willing to continue those accommodations indefinitely and Plaintiff was terminated [Id. at pp. 6, 9].

         In addition to the job loss, Plaintiff testified that he is not able to attend many family functions that take place in a park or to travel out of state without receiving advance permission from both Tennessee and the visiting state [Id. at pp. 12-15]. Plaintiff is not allowed to decorate his house for holidays such as Halloween or Christmas [Id. at pp. 16- 17]. Plaintiff complains that his picture is published in certain local newspapers sold at convenience stores - “a Thrifty Nickel-type deal” - that includes a section on individuals listed on the Registry [Id. at pp. 19-20]. Finally, Plaintiff complains that his status as a sex offender is listed on his photo identification [Id. at p. 20].

         The instant case was filed on May 19, 2017 [Doc. 1]. Pursuant to 42 U.S.C. § 1983, Plaintiff claims that the 2014 Amendment imposing lifetime registration on him is an unconstitutional violation of the Ex Post Facto Clause and a violation of the Due Process Clause of the 14th Amendment [Doc. 52 at ¶¶ 27, 29-32]. Plaintiff seeks declaratory and injunctive relief.

         II. Standard of Review

         Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. 317). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

         The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479- 80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.

         III. Analysis

         A. Whether Plaintiff's Claims are Time-Barred

         Defendant raises a timeliness argument that must be addressed first. Defendant argues that 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)(1)(B). Defendant argues that Plaintiff's cause of action accrued when the changes to the statute became applicable to him [Doc. 40 at pp. 3-5; Doc. 48 at pp. 4-5]. Because the 2014 Amendment of which he complains became effective on July 1, 2014, Plaintiff knew or should have known at that time that he was subject to the lifetime registration requirement. However, he did not file this action until May 19, 2017, almost three years later.

         In response, Plaintiff argues that the discovery rule applies and notes that he did not contact the TBI about removal from the Registry until the ten-year anniversary of his initial registration, or in 2016 [Doc. 51 at pp. 1-3; Doc. 54 at pp. 2-4]. Thus, he argues that he was not harmed until the TBI denied his request for removal from the Registry. Because this action was filed within one year of his rejection for removal from the Registry, Plaintiff contends that this action is timely. Plaintiff also notes that he was not eligible to apply for removal from the Registry until 2016, ten years after his conviction, and thus he could not have sued to correct a “non-existent wrong” prior to that time [Doc. 51 at p. 3; Doc. 54 at p. 3].

         It is well settled that in Tennessee claims under 42 U.S.C. § 1983 are subject to a one-year statute of limitations. Tenn. Code Ann. § 28-3-104(a)(1)(B); Irick v. Ray, 628 F.3d 787, 789 (6th Cir. 2010) (“civil actions for … injunctive relief brought under the federal civil rights statutes must be commenced within one year of the accrual of the cause of action”); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). However, “the accrual date of a § 1983 claim is a question of federal law that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in original). “Under federal law, the limitations period begins to run when a plaintiff knew or should have known of the injury that forms the basis of the claim.” Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007). The discovery rule provides that “the statute of limitations commences to run when the injury occurs or is discovered, or when in in the exercise of reasonable care and diligence, it should have been discovered.” Gilmore v. Davis, 185 Fed.Appx. 476, 481 (6th Cir. 2006) (emphasis in original) (quoting McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 494 (Tenn. 1975)); see Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn. 1994).

         Defense counsel suggests that the discovery rule does not apply because the harm of which Plaintiff complains - the effect of the 2014 Amendment to him - was not “unknown or unknowable.” See Quality Auto Parts, 876 S.W.2d at 820. Rather, Defendant argues the impact of the 2014 Amendment was easily known as it was a public act of the Tennessee Legislature. Defendant has not, however, cited any authority holding that citizens are presumed to know the details of all of the laws enacted.[2]

         The record contains Plaintiff's 2015 registration form, completed on September 22, 2015, which includes over five pages of instructions and information on compliance with the Act [see Doc. 28-1 at pp. 10-20]. These instructions state that offenders may obtain information about removal from the Registry from the TBI website, but there is no information about who or when an individual might be eligible to apply for removal. There is no information in the instructions regarding the 2014 Amendment of which Plaintiff complains, Tenn. Code Ann. § 40-39-207(g)(1)(C), which became effective July 1, 2014. Plaintiff testified that when he appears for his annual reporting, he asks the officer of the registering agency whether there have been any changes to the form and he is given the opportunity to ask any questions [Doc. 45-2 at pp. 8-9]. The record is silent as to whether the 2014 Amendment to the Act caused any changes to the registration form that could have alerted him to a change in the law. Thus, there is no evidence in the record that Plaintiff was informed in either 2014 or 2015 about the change in the Act requiring him to register for life. See Holland v. Governor of Ga., 669 Fed.Appx. 541, 542 (11th Cir. 2016) (“[t]he statute of limitations in these cases has only started to run after the plaintiff received some form of actual notice”).

         Even if Plaintiff had learned of the 2014 Amendment, he would not have been eligible to apply for removal from the Registry in 2014 and therefore could not have challenged its effect on him. It appears undisputed that Plaintiff could not have applied for removal from the Registry prior to 2016 and that he filed suit less than one year after his request for removal was denied. Thus, the question is whether Plaintiff knew or should have known of the change in the law prior to 2016. There is simply no evidence in the record that the Plaintiff knew or should have known of the 2014 Amendment prior to 2016. Further, even if he was aware of the change in the law, he could not have been harmed by it prior to the date when he believed he was eligible to apply for removal. Accordingly, the Court does not find that Plaintiff's claim is untimely.

         B. Whether the 2014 Amendment Violates the Constitutional Prohibition Against Ex Post Facto Laws

         The Constitution provides that “No State shall … pass any … ex post facto Law.” U.S. Const. art. I § 10, cl. 1. An Ex Post Facto law is a “retrospective” law that applies “to events occurring before its enactment” and “disadvantage[s] the offender affected by it … by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997); see Cutshall v. Sundquist, 193 F.3d 466, 476 (6th Cir. 1999), cert. denied, 529 U.S. 1053 (2000) (“[t]he clause is designed to protect against legislative abuses and to provide fair notice of the consequences of criminal actions”). The Constitution “does not bar all retroactive lawmaking, but only retroactive punishment.” Does v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016), cert. denied, 138 S.Ct. 55 (2017). Relevant to the instant challenge, “[a] statute is enforced retroactively if it governs conduct that preceded the statute's enactment.” Shaw v. Patton, 823 F.3d 556, 560 (10th Cir. 2016) (citing Stogner v. California, 539 U.S. 607, 612-13 (2003)). In the instant case, Plaintiff challenges the application of the 2014 Amendment and the requirement of lifetime compliance with the Act to his conduct in 2006. Thus, there is no dispute that the 2014 Amendment is being enforced retroactively as to Plaintiff.

         Plaintiff leans heavily on the Sixth Circuit's opinion in Snyder, which held that the retroactive application of amendments to the Michigan Sex Offender Registration Act were unconstitutional. Plaintiff argues that the 2014 Amendment inflicts punishment, it imposes an affirmative disability or restraint, it promotes the traditional aims of punishment, it is not rationally related to a non-punitive purpose, and it is excessive with respective to the non-punitive purpose [Doc. 31 at pp. 7-16]. Plaintiff points out that while he did agree to be subject to many provisions of the Act at the time of his guilty plea, he only agreed to comply with them ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.