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Grabarczyk v. Stein

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

September 4, 2019

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.



         This 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.


         Plaintiff 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. § 14-208.6(4)(b) (2005).

         Plaintiff 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 be heard.

         Plaintiff 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.


         The 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.

         Federal 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 law. Id.

         Rule 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).

         A Rule 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., 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 citation omitted).

         A. Plaintiff has Article III standing.

         All 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.

         Article 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 ...

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