United States District Court, M.D. North Carolina
NATIONAL ASSOCIATION FOR RATIONAL SEXUAL OFFENSE LAWS; NC RSOL; and JOHN DOE, Plaintiffs,
JOSHUA STEIN, Attorney General of the State of North Carolina; and DISTRICT ATTORNEYS LORRIN FREEMAN District 10; PAT NADOLSKI District 15A; and KRISTY NEWTON District 16A, Defendants.
MEMORANDUM OPINION AND ORDER
Loretta C. Biggs United States District Judge.
bring this action,  pursuant to 42 U.S.C. § 1983
(“Section 1983” or “§ 1983”),
challenging the constitutionality of five amendments to
Article 27A of Chapter 14 of the North Carolina General
Statutes that pertain solely to registered sex offenders.
(See ECF No. 33.) Before the Court is
Defendants' Motion to Dismiss Plaintiffs' First
Amended Complaint. (ECF No. 40.) For the reasons stated
below, the Court will deny Defendants' motion.
in this action are John Doe,  an individual required to
register as a sex offender in North Carolina, and two
non-profit organizations that advocate for such individuals.
(ECF No. 33 ¶¶ 23, 29, 31, 44, 46.) Plaintiff John
Doe currently resides in North Carolina Judicial District 15A
and was convicted for sexual assault in 2002. (Id.
¶¶ 22-23.) Plaintiff National Association for
Rational Sexual Offense Laws (“NARSOL”) and
Plaintiff NC RSOL (collectively “Organizational
Plaintiffs”) are “voluntary membership
organization[s]” whose “purpose is to advocate,
both legislatively and legally, for the reform of state and
national laws regarding sex offender registries and legal
restrictions placed on registrants . . . and to seek to
vindicate the constitutional rights of its members.”
(Id. ¶¶ 29- 31, 44-46.) Organizational
Plaintiffs' members include, among others, “current
registrants subject to the provisions of the law challenged
[in the Complaint] as violating the Ex Post Facto
clause of the United States Constitution.”
(Id. ¶¶ 32, 47.)
Joshua Stein is the Attorney General of the State of North
Carolina, ” who is “charged with defending the
interests of the State in all criminal and civil
suits.” (Id. ¶¶ 13- 14.) Defendants
Lorrin Freeman, Pat Nadolski, and Kristy Newton
(collectively, “Individual DA's”) are North
Carolina district attorneys for Judicial Districts 10, 15A,
and 16A, respectively, each of whom “are responsible
for the prosecution of crimes in their respective judicial
districts.” (Id. ¶ 18.) All defendants
have been sued in their official capacities. (Id.
¶¶ 13, 18.)
to Plaintiff's Complaint, North Carolina passed its first
set of statutes pertaining solely to registered sex offenders
(the “registry law”) in 1995. (Id.
¶¶ 8 n.1, 59.) The registry law is a group of
statutes “codified at Article 27A of the North Carolina
Criminal Code, ” N.C. Gen. Stat. § 14-208.5
through § 14-208.45. (Id. ¶ 8 n.1.)
“Th[e] initial registry law did no more than create a
database of persons who had been convicted of a relatively
small number of qualifying offenses.” (Id.
¶ 60.) Under this registry law, among other things:
(i)“[r]egistration terminated automatically after ten
(10) years and a person could petition for removal from the
registry”; (ii) “[t]he registry was maintained by
the local sheriff and was available to the public only upon
request by a member of the public regarding a specific
individual”; (iii) “[r]egistrants were required
to mail in notification of any change of address”; (iv)
“[v]iolation of the registry law was a Class 3
misdemeanor”; and (v) the law “applied to all
persons committing a qualifying offense or who were released
from a penal institution after the effective date.”
(Id. ¶¶ 61-64, 66 (citing 1995 N.C. Sess.
Laws 545).) Since that time, the North Carolina legislature
has passed a number of amendments to the registry law.
(See Id. ¶¶ 68-116.)
action, Plaintiffs challenge the constitutionality of the
following amendments to the registry law:
a. 2006 N.C. Sess. Laws 247 (2005 N.C. HB 1896) mandating
semi-annual, in-person reporting to the local sheriff, giving
the local sheriff the authority to require the registrant to
report at any time, mandating in-person reporting for any
change in registry status, severely restricting where
registrants can live, and banning them from jobs that involve
the “instruction, supervision, or care of a
b. 2008 N.C. Sess. Laws 117 (2007 N.C. HB 933) lengthening
the registration requirement from ten (10) to thirty (30)
years, shortening the time in which a registrant must report
to the sheriff any changes of information, and banning
registrants from a wide-range of public and private spaces; .
c. 2008 N.C. Sess. Laws 220 (2007 N.C. SB 1736) requiring
registrants to notify the sheriff of any “online”
identifiers and authorizing release of that information to
d. 2009 N.C. Sess. Laws 491 (2009 N.C. HB 1117) barring any
registrant from obtaining a “P” or
“S” endorsement on their driver's license
(“P” for “passenger” and
“S” for “school bus”); and
e. 2016 N.C. Sess. Laws 102 (2015 N.C. HB 1021) reinstituting
the ban on registrants from a wide range of public and
private spaces after 2008 N.C. Sess. Laws 117 was . . .
struck down on First Amendment grounds.
(Id. ¶¶ 8a.-8e.) Plaintiffs allege that
the retroactive application of each of the above amendments
violate the Ex Post Facto Clause of the United
States Constitution. (Id. ¶¶ 277- 281.)
Defendants move to dismiss Plaintiffs' Complaint pursuant
to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (See ECF No. 40.)
Rule 12(b)(1), a party may seek dismissal based on the
court's “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). Subject-matter
jurisdiction is a threshold issue that relates to the
court's power to hear a case and must be decided before a
determination on the merits of the case. Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d
474, 479- 80 (4th Cir. 2005). A motion under Rule 12(b)(1)
raises the question “whether [the plaintiff] has a
right to be in the district court at all and whether the
court has the power to hear and dispose of [the]
claim.” Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of
proving subject-matter jurisdiction rests with the plaintiff.
McNutt v. Gen. Motors Acceptance Corp. of Ind., 298
U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). When evaluating a Rule 12(b)(1) motion
to dismiss, a court should grant the motion “only if
the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
On a motion to dismiss for lack of standing, a court must
construe the complaint in the plaintiff's favor,
accepting as true the factual allegations in the complaint.
Warth v. Seldin, 422 U.S. 490, 501 (1975).
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure “challenges the legal sufficiency of a
complaint, ” including whether it meets the pleading
standard of Rule 8(a)(2). Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a
complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed.R.Civ.P. 8(a)(2), thereby “giv[ing] the
defendant 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)).
district court should dismiss a complaint pursuant to Rule
12(b)(6) if, accepting all well-pleaded allegations in the
complaint as true and drawing all reasonable factual
inferences in the plaintiff's favor, the complaint does
not allege ‘enough facts to state a claim to relief
that is plausible on its face.'” Vitol, S.A. v.
Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir.
2013) (quoting Twombly, 550 U.S. at 570). A claim is
plausible when the complaint alleges facts sufficient to
allow “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th
Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). A complaint may fail to state a claim upon which
relief can be granted in two ways: first, by failing to state
a valid legal cause of action, i.e., a cognizable
claim, see Holloway, 669 F.3d at 452; or second, by
failing to allege sufficient facts to support a legal cause
of action, see Painter's Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013).
court's evaluation of a Rule 12(b)(6) motion to dismiss
is “generally limited to a review of the allegations of
the complaint itself, ” a court may properly consider
documents “attached to a complaint as exhibits.”
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
165-66 (4th Cir. 2016). Therefore, in addition to considering
the Complaint, the Court will also consider the exhibits
attached to the Complaint. See id.
Eleventh Amendment Immunity
first argue that Plaintiffs' lawsuit is barred by the
Eleventh Amendment. (See ECF No. 42 at 4-6.) Because
the Eleventh Amendment acts as a jurisdictional bar, courts
must resolve the issue of Eleventh Amendment sovereign
immunity before reaching the merits of a case. See
Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).
1983 provides a cause of action for the deprivation of a
constitutional or federal statutory right by a
“person” acting under color of state law.
See 42 U.S.C. § 1983. However, “the
doctrine of sovereign immunity under the Eleventh
Amendment . . . prevent[s] a state from being sued
by one of its own citizens without its consent.”
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316,
329 (4th Cir. 2001) (footnote added). Thus, “neither a
State nor its officials acting in their official capacities
are ‘persons' under § 1983.” Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
In Ex parte Young, 209 U.S. 123 (1908), the Supreme
Court “created an exception to this general principle
by asserting that a suit challenging the constitutionality of
a state official's action in enforcing state law is not
one against the State.” Green v. Mansour, 474
U.S. 64, 68 (1985) (citing Ex parte Young, 209 U.S.
at 159-60). As explained by the Supreme Court, “[t]he
theory of [Ex parte] Young was that an
unconstitutional statute is void, and therefore does not
‘impart to [the official] any immunity from
responsibility to the supreme authority of the United
States.'” Id. (third alteration in
original) (quoting Ex parte Young, 209 U.S. at 159,
160). Therefore, under the Ex parte Young exception
to Eleventh Amendment immunity, a federal court may
“issue prospective, injunctive relief against a state
officer to prevent ongoing violations of federal law, on the
rationale that such a suit is not a suit against the state
for purposes of the Eleventh Amendment.” McBurney
v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010).
“The requirement that the violation of federal law be
ongoing is satisfied when a state officer's enforcement
of an allegedly unconstitutional state law is threatened,
even if the threat is not yet imminent.” Waste
Mgmt., 252 F.3d at 330.
at the motion to dismiss stage, the Court “need only
conduct a straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law.”
Constantine, 411 F.3d at 496 (quoting Verizon
Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645
(2002). See S.C. Wildlife Fed'n v. Limehouse,
549 F.3d 324, 332 (4th Cir. 2008) (“For purposes of
Eleventh Amendment analysis, it is sufficient to determine
that [the plaintiff] alleges facts that, if proven, would
violate federal law and that the requested relief is
prospective.”). In so doing, the Court “do[es]
not consider the merits of [Plaintiffs'] claims; it is
enough that the complaint alleges an ongoing
violation of federal law.” Constantine, 411
F.3d at 496. See D.T.M. ex rel. McCartney v.
Cansler, 382 Fed.Appx. 334, 338 (4th Cir. 2010)
(“[I]t is sufficient for Plaintiffs' suit to
allege an ongoing violation of federal law; actually
proving such an ongoing violation is unnecessary [at
the motion to dismiss stage].”)
Complaint alleges the following:
(i) that “[t]he provisions of the registry law
challenged herein have been retroactively applied to”
Plaintiffs, (ECF No. 33 ¶¶ 25, 38, 53);
(ii) that the burdens imposed by the registry law, along with
tis history, “demonstrate the intent to punish and/or
create the effect of punishment, ” (id. ¶
(iii) that the challenged provision of the registry law
“inflict both directly and indirectly what has been
regarded in our history and traditions as punishment, ”
(id. ¶ 225);
(iv) that “[t]he provisions of the registry law
challenged herein, both directly and indirectly, impose
affirmative disabilities and restraints on registrants,
” (id. ¶ 240);
(v) that the “registry law is not reasonably related to
a legitimate non-punitive purpose, ” (id.
(vi) that “[t]he extent and duration of registry
requirements are substantially greater than necessary to meet
the legislature's avowed purpose, ” (id.
¶ 262); and
(vii) that the retroactive application of the challenged
provisions of the registry law “make[s] more burdensome
the punishment imposed for offenses committed prior to the
enactment of that law, (id. ¶¶ 277-281).
true, these claims allege ongoing violations of the Ex
Post Facto Clause which “prohibits the application of
laws that retroactively ‘increase the punishment for
criminal acts.'” United States v. Rooks,
596 F.3d 204, 213 n.10 (4th Cir. 2010) (footnote added)
(quoting United States v. O'Neal, 180 F.3d 115,
121 (4th Cir. 1999)). The Court therefore concludes that
Plaintiffs' allegations satisfy the Court's
“straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law.”
Constantine, 411 F.3d at 496.
where the Complaint alleges an ongoing violation of federal
law, in order for the Ex parte Young exception to
apply, a “special relation” must exist
“between the state officer sued and the challenged
statute to avoid the Eleventh Amendment's bar.”
Waste Mgmt., 252 F.3d at 331 (quoting Ex parte
Young, 209 U.S. at 157). See Lytle v. Griffith,
240 F.3d 404, 412 (4th Cir. 2001) (“The [Ex
parte] Young exception is limited . . . by its
requirement that named state officials bear a special
relation to the challenged statute.”). This
“special relation” “requires proximity
to and responsibility for the challenged state
action.” Wright v. North Carolina, 787 F.3d
256, 261-62 (4th Cir. 2015) (quoting S.C. Wildlife
Fed'n, 549 F.3d at 333).
Court concludes that Plaintiffs have sufficiently alleged
that Defendants have a special relation to the enforcement of
the challenged provisions of the registry law. In the
Complaint, Plaintiffs specifically allege that a violation of
the challenged provisions of the registry law is a felony
offense. (ECF No. 33 ¶¶ 88, 131, 168, 221, 244.)
With respect to the Attorney General, Plaintiffs allege that
he has statutory authority, “through special
prosecutors, to bring or assist in criminal suits upon
request of a district attorney.” (Id. ¶
13- 17.) As this Court stated in Does 1-5 v. Cooper,
“Ex parte Young itself held that the state
attorney general's duties, which included the right and
the power to enforce the statutes of the state, sufficiently
connected him with the duty of enforcement to make him a
proper party to an action challenging a state statute's
constitutionality.” 40 F.Supp.3d 657, 673 (M.D. N.C.
2014) (citing Ex parte Young, 209 U.S. at 158-61).
Here, as alleged by Plaintiffs, the Attorney General has the
statutory authority to prosecute or assist in the prosecution
of criminal actions. (See ECF No. 33 ¶¶
14-16; see also N.C. Gen. Stat. §§ 114-2,
114-11.6.) Plaintiffs have thus sufficiently alleged that the
Attorney General has enough of a connection to the
enforcement of North Carolina criminal laws to satisfy the
special relation requirement of Ex parte Young and
thereby avoid the Eleventh Amendment bar. See Does
1-5, 40 F.Supp.3d at 674 (finding ...