United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
cause comes before the Court on plaintiffs motion for entry
of default and default judgment and defendant's motion to
dismiss. The appropriate responses and replies have been
filed, or the time for doing so has expired, and the matters
are ripe for ruling. For the reasons that follow, this action
proceeding pro se, commenced this action under 42
U.S.C. § 1983 to redress the deprivation under color of
law of rights secured by the United States Constitution.
Specifically, plaintiff alleges that on September 25, 1998,
he was sentenced to a term often years' imprisonment in
New Jersey State Prison (flat) and a lifetime of community
supervision as well as compliance with registration and
re-registration requirements of New Jersey's Megan's
Plaintiff began being supervised under community supervision
on April 1, 2004, and relocated to North Carolina. [DE 17-1
at 7]. Plaintiff alleges he is currently listed
under the Sex Offender Registration and Notification Act
(SORA), 42 U.S.C. § 16901 et seq., a component
of the Adam Walsh Child Protection and Safety Act of 2006
(Adam Walsh Act). Pub. L. 109-248, 120 Stat. 587 (2006).
Plaintiff alleges that defendant Turner and the North
Carolina Department of Corrections are currently supervising
him not under Megan's Law as directed by his New Jersey
judgment but under the later enacted Adam Walsh Act.
Plaintiff seeks a declaratory judgment that the acts alleged
violate his constitutional rights.
request for entry of default and motion for default judgment
are denied. Plaintiff filed proof of service reflecting
service on defendant on March 1, 2017. [DE 5]. Fed.R.Civ.P.
12(a) provides that an answer must be filed within twenty-one
days of service of the summons and complaint, unless a motion
under Rule 12 is filed, in which case the responsive pleading
must be served, if required, within fourteen days of notice
of the court's action on the motion. Prior to the time
for filing a responsive pleading expiring, defendant moved
for an extension of time and was granted such extension. [DE
10; 11]. A second motion for extension of time to file a
responsive pleading was also granted, [DE 14], and defendant
filed his motion to dismiss within the time provided by the
Court. Although the second motion for extension of time was
filed after the previously extended time period had expired,
the Court's allowance of defendant's second motion
for extension found good cause for the delay. Entry of
default under Rule 55(a) is thus not warranted and the motion
for entry of default judgment under Rule 55(b) must therefore
Motion to dismiss.
moves to dismiss plaintiffs complaint for failure to state a
claim and for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(6), 12(b)(1). Although notified of his
right to respond, [DE 21], plaintiff has not responded to the
motion to dismiss.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). A "pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal quotation and
has failed to plausibly allege a violation of his
constitutional rights. Plaintiff has alleged that the failure
of defendant to take plaintiff back before the New Jersey
courts to voice his constitutional objection to being
supervised under the more constricting punishment of the
federal Adam Walsh Act and SORNA as opposed to New
Jersey's Megan's law which was in effect at the time
his criminal sentence was imposed violates the separation of
Carolina has implemented and applied SORNA's guidelines
for state sex offender registration programs. See In re
Hall, 238 N.C.App. 322, 325 (2014); N.C. Gen. Stat.
§ 14-208.7. State sex offender registration laws have
been found to be nonpunitive, and their retroactive
application to offenders convicted prior to the law's
passage has been found not to violate the Ex Post
Facto Clause of the Eighth Amendment. Smith v.
Doe, 538 U.S. 84, 106 (2003).
as plaintiff alleges that it is his registration under SORNA
and not North Carolina registration laws which violates his
rights, although pre-SORNA offenders were not required to
register until the United States Attorney General validly
specified that SORNA's registration provisions apply to
them, Reynolds v. United States, 565 U.S. 432, 439
(2012), the Attorney General's issuance of the interim
rule on February 28, 2007, specified that SORNA's
registration requirements apply to persons convicted of sex
offenses prior to the enactment of SORNA. Id. at
437; see also United States v. Hatcher, 560 F.3d
222, 229 (4th Cir. 2009). SORNA has further consistently been
held not to violate the nondelgation doctrine and thus not to
implicate separation of powers concerns. See United
States v. Richardson, 754 F.3d 1143, 1145 (9th Cir.
2014) (listing cases holding same); United States v.
Parent, 585 F.App'x 668, 669 (9th Cir. 2014).
as plaintiff complains that the North Carolina Division of
Community Corrections has violated his constitutional rights
for requiring him to comply with state or federal SORNA
registration requirements, he has ...