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Bell v. Turner

United States District Court, E.D. North Carolina, Southern Division

September 7, 2017

DWIGHT BELL, Plaintiff,
v.
THURMAN TURNER, individually and in his official capacity at North Carolina Department of Corrections, Defendant.

          ORDER

          TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

         This 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 is dismissed.

         BACKGROUND

         Plaintiff, 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 Law.[1] Plaintiff began being supervised under community supervision on April 1, 2004, and relocated to North Carolina. [DE 17-1 at 7].[2] 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.

         DISCUSSION

         I. Default/default judgment.

         Plaintiffs 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 be denied.

         II. Motion to dismiss.

         Defendant 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.

         A Rule 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 citation omitted).

         Plaintiff 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 powers doctrine.[3]

         North 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).[4]

         Insofar 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).

         Accordingly, 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 ...


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