United States District Court, E.D. North Carolina, Western Division
KENNETH S. GRABARCZYK, on behalf of himself and others similarly situated, Plaintiff,
JOSHUA STEIN, Attorney General of the State of North Carolina, in his official capacity; BOB SCHURMEIER, Director of the North Carolina State Bureau of Investigation, in his official capacity; SEAN BOONE, District Attorney of Alamance County, North Carolina, in his official capacity; Defendants.
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendants Stein and
Schurmeier's motion to dismiss and defendant Boone's
motion to dismiss. [DE 19 & 21]. The appropriate
responses and replies having been filed, or the time for
doing so having expired, the motions are ripe for ruling. For
the reasons that follow, both motions are granted in part and
denied in part.
initiated this action by filing a complaint alleging a single
claim under 42 U.S.C. § 1983 that his procedural due
process rights guaranteed by the Fourteenth Amendment have
been violated by being placed on the North Carolina Sex
Offender Registry (NCSOR) without notice and an opportunity
to be heard. Plaintiff specifically challenges his placement
on the NCSOR based upon a state official's ad hoc
determination that plaintiff was convicted of an out-
of-state sex offense that is "substantially
similar" to a North Carolina crime requiring
registration. See N.C. Gen. Stat. §
alleges that in 2002 he pleaded guilty in Wisconsin to
violating Wisconsin statute 940.225(2)(b) (second degree
sexual assault). In 2005, plaintiff became a resident of
North Carolina and was placed on the NCSOR based on a
determination that his Wisconsin offense was
"substantially similar" to a North Carolina offense
requiring registration. Plaintiff alleges that he was given
no notice or opportunity to be heard with regard to this
determination, and further alleges that Wisconsin's
second degree sexual assault is not substantially similar to
a North Carolina offense requiring registration because it
may be committed not for the purpose of sexual arousal.
See N.C. Gen. Stat. § 14-27.33 (offense must
require sexual contact for the purpose of sexual arousal to
require sex offender registration). Plaintiff alleges that
for all persons who committed a predicate out-of-state
offense and moved to North Carolina prior to December 1,
2006, the only lawful basis for being placed on the NCSOR was
a determination that the out-of-state conviction was
substantially similar to a North Carolina offense requiring
registration and that this substantial similarity
determination was made without notice and an opportunity to
seeks as relief his removal from the NCSOR, a declaration
that his due process rights were violated, and an injunction
barring defendants in their official capacities from
enforcing North Carolina statutes applicable only to
registered sex offenders against plaintiff. Plaintiff further
seeks nominal, compensatory, and punitive damages as well as
attorney fees and costs. Plaintiff filed his complaint as a
putative class action.
defendants have moved to dismiss plaintiffs claims under
Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules
of Civil Procedure.
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When
subject-matter jurisdiction is challenged, the plaintiff has
the burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists,
the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). To this end, "the
nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
exists." Id. (citing Trentacosta v.
Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59
(9th Cir. 1987)). The movant's motion to dismiss should
be granted if the material jurisdictional facts are not in
dispute and the movant is entitled to prevail as a matter of
12(b)(2) of the Federal Rules of Civil Procedure authorizes
dismissal for lack of personal jurisdiction. When personal
jurisdiction has been challenged on the papers alone, the
plaintiff must make a prima facie case showing that personal
jurisdiction exists, and a court construes all facts and
inferences in favor of finding jurisdiction. Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). 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). In other words, the
facts alleged must allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court "need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Philips v. Pitt County Mem. Hosp.,
572 F.3d 176, 180 (4th Cir. 2009) (internal alteration and
Plaintiff has Article III standing.
defendants challenge plaintiffs standing to bring this
action, arguing that plaintiff has not suffered an injury and
that, even if he has suffered an injury, it is not fairly
traceable to these defendants.
III of the Constitution limits federal courts to jurisdiction
over actual cases or controversies. Spokeo, Inc. v.
Robins,136 S.Ct. 1540, 1547 (2016) (citations omitted).
Standing to sue under Article III requires a plaintiff to
have suffered an injury in fact that is fairly traceable to
the challenged conduct of the defendant and that is likely to
be redressed by a judicial decision in his favor.
Id. When, as here, a plaintiff seeks injunctive
relief, more than simply an allegation of a defendant's
prior wrongful ...