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NC Rsol v. Boone

United States District Court, M.D. North Carolina

August 26, 2019

NC RSOL and JOHN DOE 1, also known as CHRISTOPHER KYLE WOODRUFF, [1] Plaintiffs,
SEAN BOONE[2] and LORRIN FREEMAN, each in his or her official capacity as District Attorney, and JOSHUA STEIN, in his official capacity as Attorney General of the State of North Carolina, Defendants.



         This case is now before the court on Defendants' motion to dismiss the complaint for lack of standing, sovereign immunity, abstention, and failure to state a claim. (See Doc. 12.) This court has reviewed the pleadings in this case and, for the reasons that follow, finds that Defendants' motion to dismiss should be granted in part and denied in part.


         Plaintiff NC RSOL is a nonprofit organization that “advocate[s], both legislatively and legally, for the rational reform of statutes, regulations, and ordinances regarding sex offender registries and legal restrictions placed upon registrants.” (Complaint (“Compl.”) (Doc. 1) ¶ 42.) As initially filed, the complaint also named two individuals as Plaintiffs: John Doe 1 and John Doe 2. Following this court's order denying Plaintiffs' motion to proceed under fictitious names, (Doc. 19), Plaintiff John Doe 2 voluntarily dismissed his claims pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). (See Doc. 20.) Plaintiff John Doe 1 filed an affidavit stating his legal name and will be referred to herein as “Woodruff.” (Doc. 21.)

         Plaintiff Woodruff is a registered sex offender who resides in Alamance County, North Carolina, “and is subject to the restrictions contained in North Carolina General Statutes Article 27A, specifically including N.C. G.S. § 14-208.18(a)(3) and (a)(4).” (Compl. (Doc. 1) ¶ 22.) Woodruff was convicted of misdemeanor sexual battery of a thirty-year-old woman in 2009. (Id. ¶¶ 23-26.) The complaint alleges that Woodruff “desires to attend church, to be able to go to the public library, to go to movies, sporting events, recreation parks, amusement parks, and other areas made off-limits to him by § 14-208.8(a)(3) [sic].” (Id. ¶ 95.) Woodruff also desires to attend North Carolina state and agricultural fairs and would do so but for the restrictions in N.C. Gen. Stat. § 14-208.18(a)(4). (See id. ¶¶ 107-17.)

         Plaintiffs challenge the premises restrictions in N.C. Gen. Stat. §§ 14-208.18(a)(2) - (a)(4), which make it unlawful for registered sex offenders to knowingly be present at certain locations. Specifically, Plaintiffs allege that § 14-208.18(a)(2) is unconstitutionally “overbroad in violation of the First and Fourteenth Amendments to the United States Constitution, ” that § 14-208.18(a)(3) is both overbroad and unconstitutionally vague, and that § 14-208.18(a)(4) is overbroad. (Id. ¶¶ 119-30.)

         Defendants have moved to dismiss the complaint under Fed.R.Civ.P. R. 12(b)(1), (b)(2), and (b)(6), asserting sovereign immunity, lack of standing, and failure to state a claim. (Doc. 12.) Defendants filed a brief in support of their motion to dismiss. (See Mem. of Law in Supp. of Mot. to Dismiss (“Defs.' Mem.”) (Doc. 13).) Plaintiffs have responded opposing the motion to dismiss, (Pls.' Resp. and Mem. in Resp. to Defs.' Mot. to Dismiss (“Pls.' Resp.”) (Doc. 15)), and Defendants have not filed a reply brief.


         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the plaintiff must plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         When ruling on a motion to dismiss, this court must accept the complaint's factual allegations as true. Iqbal, 556 U.S. at 678. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted). Despite this deferential standard, a court will not accept legal conclusions as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

         III. STANDING

         A. Legal Framework

         The federal judicial power extends only to cases or controversies within the scope of Article III of the United States Constitution. See U.S. Const. art. III, § 2. To have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S.___, ___, 136 S.Ct. 1540, 1547 (2016). Stated differently, “[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.”[3] Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).

         First, the plaintiff must have either suffered an injury or be in imminent fear of an injury. “A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). That injury must be “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations, quotation marks and footnote omitted). Plaintiffs generally may challenge alleged violations prospectively, provided that “the threatened injury is real, immediate, and direct.” Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

         Second, the injury must be “fairly traceable” to the defendant's conduct. This does not mean that the plaintiffs must prove to an absolute certainty that the defendant's actions caused or are likely to cause injury; rather the “plaintiffs need only show that there is a substantial likelihood that defendant's conduct caused plaintiffs' harm.” Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978)) (internal quotation marks omitted). While this standard excludes any injury that is “the result of the independent action of some third party not before the court, [it] does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997) (quoting Lujan, 504 U.S. at 560-61). For example, in Bennett, the Supreme Court held that the plaintiffs had alleged an injury “fairly traceable” to the Fish and Wildlife Service when the Service's (technically advisory) biological opinion expressing concern about a land reclamation project's impact on endangered wildlife prompted a federal agency to enforce minimum reservoir levels. Id. at 167-71.

         Third and finally, the law requires that it be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” from the court. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). This requirement “examines the causal connection between the alleged injury and the judicial relief requested” and asks whether a judicial decision granting the requested relief will alleviate plaintiff's alleged injury. See Allen, 468 U.S. at 753 n.19 (explaining the distinction between the “fairly traceable” and “redressable” components of standing).

         B. Analysis

         Prior to the Fourth Circuit's decision substantively affirming the district court in Doe v. Cooper, 842 F.3d 833 (4th Cir. 2016) (“Cooper III”), a former judge in this district found that registered sex offenders had standing to challenge the prior version of N.C. Gen. Stat. § 14-208.18(a). See Does 1-5 v. Cooper, 40 F.Supp.3d 657 (M.D. N.C. 2014) (“Cooper I”). In its standing analysis, the court compared the facts of that case to the Fourth Circuit case Doe v. Virginia Department of State Police, 713 F.3d 745 (4th Cir. 2013), where the plaintiff lacked standing to challenge Virginia's sex offender premises restrictions (Va. Code § 18.2-370.5). The Virginia statute that criminalized sex offender presence in certain locations also contemplated that a registered sex offender could “petition the circuit court in the county or city where the school or child day center is located for permission to enter such property” and become exempt from certain restrictions upon obtaining a court order and permission from the school board or property owner. Va. Code § 18.2-370.5(c). The Fourth Circuit found that the plaintiff had alleged only hypothetical injury because she had not actually attempted to access the restricted locations and had not utilized the petition process. Id. at 754 (“Because Doe has not attempted to petition a Virginia circuit court, the Board, or any church, it is far from clear whether she will ultimately be barred from entering these properties.”).

         By contrast, in Does 1-5 v. Cooper, a former judge in this district found that N.C. Gen. Stat. § 14-208.18 contained “no such petition option or opportunity to obtain an individualized degree of access to restricted locations.” Cooper I, 40 F.Supp.3d at 670. Further, the court noted that certain plaintiffs had either been arrested for violating subsections of § 14-208.18 (although the charges were later dismissed) or had obtained permission from property owners to attend events at restricted locations. Id. at 671. Noting that the “Plaintiffs need not actually violate § 14-208.18, or be proactively threatened with prosecution prior to violation, in order to have standing, ” the court determined that the plaintiffs had standing for their claims. Id. at 672.

          N.C. Gen. Stat. § 14-208.18 still lacks any formal petition process by which a registered sex offender might obtain judicial approval of his or her presence at a restricted location. According to the complaint, the state trial judge in Woodruff's 2009 misdemeanor sexual battery case “determined that [Woodruff] is not a threat to minors or others” and “directed that [Woodruff] would not be subject to the premises, housing, and work restrictions contained in Article 27A (including N.C. G.S. § 14-208.18(a)).” (Compl. (Doc. 1) ¶¶ 27-29.) However, the state of North Carolina objected to this ruling and Woodruff is now subject to the premises restrictions. (Id. ¶ 29.) Woodruff has refrained from being present at locations specified in §§ 14-208.18(a)(3) and (a)(4) due to his “resulting fear of arrest and prosecution.” (Id. ¶ 96.)

         Defendants argue, in support of their motion to dismiss, that “[i]t is purely speculative that there exists a time, location, or other area covered by N.C. G.S. § 14-208.18 that coincides with a viable and imminent threat to prosecute which could serve as an actionable injury for standing.” (Defs.' Mem. (Doc. 13) at 8.) In other words, Defendants assert that any purported injury is merely hypothetical and not imminent. This court first notes several factors that distinguish this case from the earlier challenge in Doe v. Cooper. First, Plaintiffs have not alleged that Woodruff has been threatened with arrest, arrested or prosecuted for violating the revised version of § 14-208.18(a). Second, it appears from the complaint that Woodruff has not sought permission from any law enforcement officer or property owner to be present at locations mentioned in subsections (a)(3) or (a)(4).

         A plaintiff is never required to violate the law to obtain standing to challenge a statute. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”). However, a general feeling of inhibition, without evidence suggesting that plaintiffs “would be prosecuted for the conduct they planned to engage in, ” is insufficient to establish standing. Younger v. Harris, 401 U.S. 37, 42 (1971). In this arena, the Supreme Court has generally found standing when a plaintiff professes a desire to engage in conduct that is facially prohibited by the challenged statute, the state has prosecuted individuals in the past, and the state has not disavowed future prosecution. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161-66 (2014) (finding that the plaintiffs had standing to challenge a “false campaign statement” law restricting political speech, where one plaintiff was “the subject of a complaint in a recent election cycle” and complaints were common and carried potential criminal penalties); Holder v. Humanitarian Law Project, 561 U.S. 1, 15- 16 (2010) (holding that the plaintiffs had standing to challenge a terrorism material-support ban, where the government had prosecuted others under the statute and plaintiffs alleged “that they would provide similar support again if the statute's allegedly unconstitutional bar were lifted”); Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 301-02 (1979) (plaintiffs had standing to challenge a “consumer publicity” restriction applicable to labor unions where they had engaged in past publicity campaigns, intended to do so in the future, had a reasonable fear that the statute might restrict these activities, and did not receive any state assurance of non-prosecution).

         Here, as alleged, Woodruff is subject to a state trial court order that explicitly states he is subject to the premises restrictions in §§ 14-208.18(a)(3) and (a)(4). (Compl. (Doc. 1) ¶ 29.) This order is allegedly the result of the state's objection to earlier findings by Woodruff's trial court judge. (Id.) Even absent an order from the trial court, Woodruff would still be subject to the premises restrictions and to criminal liability for violating those restrictions. Without any formal petition process to obtain advance permission to enter such a location, Woodruff's only options are to (1) refrain from visiting any place where minors may congregate, to avoid running afoul of § 14-208.18(a)(3), or (2) visit these places and simply hope that he does not run afoul of the statutory restrictions. Defendants acknowledge as much. (See Defs.' Mem. (Doc. 13) at 8 (“[T]he reality is that they can go to these places, but they must be vigilant as to who else is at the location when they chooses [sic] to visit.”).)

         This court's independent research[4] illustrates that North Carolina has prosecuted registered sex offenders for violating the premises restriction in § 14-208.18(a)(3).[5] See, e.g., Cooper I, 40 F.Supp.3d at 671 (“Plaintiff John Doe 1 was arrested and charged with violating § 14-208.18 for attending a church where he had the pastor's permission to attend.”); State v. Daniels, 224 N.C.App. 608, 610, 741 S.E.2d 354, 357 (2012) (“Defendant was indicted on two charges of violating N.C. Gen. Stat. § 14- 208.18(a)(3)” for being present at a park) (footnote omitted); State v. Runyon, No. COA14-817, 2015 WL 241754, at *1 ( N.C. Ct. App. Jan. 20, 2015) (same underlying facts). Notably, Defendants only assert that Plaintiffs have failed to identify any threat of prosecution directed to Woodruff individually, not that no prosecutions have occurred generally. (Defs.' Mem. (Doc. 13) at 7.) Defendants further argue that Plaintiffs' allegations lack specificity; however, Plaintiffs are not required to plead the specific name of the locations they wish to visit. The complaint alleges that Woodruff wishes to visit “recreation parks, ” (Compl. (Doc. 1) ¶ 95), and North Carolina has recently prosecuted registered sex offenders under subsection (a)(3) for being present at parks. See Daniels, 224 N.C.App. 608, 741 S.E.2d 354; Runyon, 2015 WL 241754. Finally, Defendants do not disavow the intent to prosecute sex offenders under the challenged statutes; nor could they reasonably do so, given the prosecutorial history described above.

         Here, notwithstanding that Woodruff has neither been arrested nor taken affirmative steps to visit any restricted locations, this court finds that Woodruff has alleged more than a mere feeling of inhibition in visiting places identified by §§ 14-208.18(a)(3) and (a)(4). The history of past prosecution under subsection (a)(3), the state's active opposition to an order exempting Woodruff from the premises restrictions, and the lack of any state disavowal combine to create a credible threat of prosecution under Driehaus and Holder. Therefore, Woodruff has standing to challenge subsections (a)(3) and (a)(4), and Defendant's motion to dismiss these claims for lack of standing under Fed.R.Civ.P. R. 12(b)(1) will be denied.

         C. Traceability to the Attorney General's Office

         Defendants further argue that any purported injury is not traceable to conduct by the North Carolina Attorney General's Office because the Attorney General is only authorized to prosecute alleged criminal acts upon request from the relevant district attorney. (See Defs.' Mem. (Doc. 13) at 9.) For that reason, Defendants contend that, “at a minimum, the claims against the North Carolina Attorney General should be dismissed pursuant to Rule 12(b)(1) for failure to ever be able to establish the second prong of the case-or-controversy test.” (Id.) Plaintiffs do not appear to dispute that their injuries are traceable only to the individual district attorneys, rather than to the Attorney General's Office. (See Pls.' Resp. (Doc. 15) at 7-8.)

         Here, it appears that ultimate prosecutorial decision-making resides with the local district attorneys and not the North Carolina Attorney General. Therefore, the facts in this case are the inverse of those in Bennett v. Spear, 520 U.S. at 167-71, in that plaintiffs seek to sue a subordinate government body that can take potentially injurious action only upon the direction of others. Had Plaintiffs alleged that the district attorneys actually instructed the North Carolina Attorney General's office to investigate or prosecute Woodruff for a potential violation of § 14-208.18(a)(3) or (a)(4), this injury would be fairly traceable to both the directing district attorney and the Attorney General's office, under Bennett. However, because Plaintiffs bring a pre-enforcement challenge to the premises restrictions, the proper defendants in this case are the “state officials empowered to enforce [that] law.” Diamond v. Charles, 476 U.S. 54, 64 (1986); see also Nova Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir. 2005) (“[A]n official who is charged with enforcing a state statute on behalf of the entire state is a proper defendant, so long as the plaintiff shows an appreciable threat of injury flowing directly from the statute.”); Mobil Oil Corp. v. Attorney Gen. of Va., 940 F.2d 73, 76-77 (4th Cir. 1991). Plaintiffs apparently concede that only the district attorneys are empowered to initiate prosecutions under the challenged statutes. Therefore, this court finds that all claims against Defendant Joshua Stein, in his official capacity as the Attorney General of the State of North Carolina, should be dismissed for lack of standing pursuant to Fed.R.Civ.P. 12(b)(1).

         D. Organizat ...

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