Burns v. Helper

Decision Date24 October 2019
Docket NumberCase No. 3:18-cv-01231
PartiesVERMAINE M. BURNS, Plaintiff, v. KIM R. HELPER, et al., Defendants.
CourtU.S. District Court — Middle District of Tennessee

Judge William L. Campbell, Jr.

Magistrate Judge Alistair E. Newbern

To: The Honorable William L. Campbell, Jr., District Judge

REPORT AND RECOMMENDATION

The sole remaining defendant in this civil rights action, Tennessee Attorney General Herbert Slatery, III, has moved to dismiss pro se Plaintiff Vermaine M. Burns's amended complaint. (Doc. No. 19.) As construed by this Court's prior order, the amended complaint challenges the constitutionality of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (Sex Offender Registration Act), Tenn. Code Ann. §§ 40-39-201, et seq., as applied to Burns and seeks declaratory and injunctive relief. (Doc. No. 14.) Slatery argues under Federal Rule of Civil Procedure 12(b)(6) that Burns has failed to state a claim upon which relief may be granted. (Doc. No. 20.) In response, Burns has filed a motion for leave to amend and a proposed second amended complaint. (Doc. Nos. 22, 23.) Slatery opposes Burns's motion to amend, arguing that the proposed amendments would be futile. (Doc. No. 28.) For the reasons that follow, the Magistrate Judge will recommend that the Court deny Burns's motion to amend and grant Slatery's motion to dismiss.

I. Background
A. Factual Background

The Court set out the facts of this case when it screened Burns's original complaint under 28 U.S.C. § 1915(e)(2), as is required in actions where the plaintiff appears in forma pauperis.1 (Doc. No. 4.) On February 13, 2012, a grand jury in Williamson County, Tennessee, indicted Burns on four counts of solicitation to commit aggravated statutory rape of a minor child by an adult, two counts of attempted solicitation to commit sexual exploitation of a minor, one count of solicitation to commit especially aggravated sexual exploitation of a minor, and one count of exploitation of a minor by electronic means. (Id.) Burns alleges that, even before he was tried on these charges, thetrial judge placed Burns's name on Tennessee's sex offender registry. (Id.; Doc. No. 9.) Burns further alleges that the trial judge and prosecuting attorney intimidated his defense lawyer and that the trial judge showed bias and prejudice against his lawyer and "rejected" her "attempt to examine one of the prosecuting witnesses at trial" (Doc. No. 9, PageID# 54, ¶ 4).

Burns was convicted as charged, and his conviction was affirmed on direct appeal. State v. Burns, No. M2014-00357-CCA-R3-CD, 2015 WL 2105543, at *10, *15 (Tenn. Crim. App. May 5, 2015). Burns served a prison sentence and has since been released. (Doc. Nos. 4, 9.) He continues to be registered as a sex offender and is required to comply with the Sex Offender Registration Act's residency restrictions, among other requirements. (Doc. No. 9.) This provision of the Sex Offender Registration Act states that:

no sexual offender . . . shall knowingly establish a primary or secondary residence or any other living accommodation . . . within one thousand feet (1,000') of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center, or public athletic field available for use by the general public.

Tenn. Code. Ann. § 40-39-211(a)(1). Burns alleges that he "has been notified and instructed by the Columbia Police Department to move from his mother's home, with a specified time period to comply, because . . . a children's playground is close to [his] mother's home[.]" (Doc. No. 9, PageID# 54, ¶ 8.)

B. Procedural History
1. Burns's Original Complaint

Burns initiated this action on November 2, 2018. (Doc. No. 1.) His original complaint named as defendants the state-court judge and prosecuting attorney involved in his criminal trial; three Tennessee Court of Criminal Appeals judges; the Columbia, Tennessee Police Department; and the State of Tennessee. (Id.) Burns alleged violations of his rights under the Fifth and Fourteenth Amendments to the United States Constitution by way of 42 U.S.C. §§ 1983 and 1985.(Id.; Doc. No. 4.) He also sought a "'writ of prohibition' under 28 U.S.C. § 1651(a) 'to prohibit further enforcement of the [conviction] by the state of Tennessee and the Columbia Police Department.'" (Doc. No. 4, PageID# 24-25 (quoting Doc. No. 1, PageID# 2).) Burns asked for damages, injunctive relief, and any other remedy that the Court deemed appropriate. (Doc. No. 1.)

On November 29, 2018, the Court screened Burns's complaint under 28 U.S.C. § 1915(e)(2) and dismissed all of his claims. (Doc. No. 4.) The Court found that, to the extent Burns sought to challenge his state-court conviction on the grounds that it violated his federal constitutional rights, his sole avenue for doing so was through a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Id.) The Court also found that, because it was "unclear whether [Burns] remain[ed] in custody for purposes of the habeas statute merely as a result of his continued listing on the sex offender registry" and because it appeared that Burns "did not exhaust state court remedies by pursuing post-conviction relief in the state courts[,]" the Court would "not recharacterize [Burns's] [c]omplaint as a habeas petition." (Id. at PageID# 29.) Turning to Burns's claims under 42 U.S.C. §§ 1983 and 1985, the Court found that the four state-court judges Burns named as defendants were entitled to absolute judicial immunity from claims for damages and that Burns had failed to state claims against them for injunctive relief. (Doc. No. 4.) The Court also dismissed Burns's claims against the prosecutor on the grounds of prosecutorial immunity. (Id.) The Court found that Burns failed to state a claim against the Columbia Police Department. (Id.) Finally, the Court found that the State of Tennessee was entitled to sovereign immunity from Burns's claims and dismissed those claims without prejudice to Burns's "ability to bring suit against the appropriate state official for prospective injunctive relief, asserting a plausible claim that enforcement of the Sex Offender Registration Act violates his constitutional rights." (Id. at PageID# 33.) The Court noted that, under the exception to sovereign immunity articulated by theSupreme Court in Ex Parte Young, 203 U.S. 123 (1908), the "Director of the Tennessee Bureau of Investigation[ ] is an appropriate defendant to answer to challenges regarding the constitutionality of Tennessee's Sex Offender Registration Act" and that "other appropriate officials may also exist." (Id. at PageID# 36-37.)

2. Burn's Motion for Reconsideration and First Amended Complaint

On December 10, 2018, Burns filed a motion asking the Court to reconsider its screening order and arguing, among other things, that Slatery was an appropriate defendant to answer Burns's constitutional challenge to the Sex Offender Registration Act. (Doc. No. 7.) On December 28, 2018, the Court construed Burns's motion as a motion to amend and granted it. (Doc. No. 8.) The Court agreed that Slatery is an appropriate defendant to Burns's claims under Ex Parte Young based on Tennessee law "requir[ing] the Attorney General to be a party defendant in any proceeding where the constitutionality of the Act of the legislature is before the Court on declaratory judgments proceeding." (Id. at PageID# 51, 52 (alteration in original) (quoting Cummings v. Beeler, 223 S.W.2d 913, 916 (Tenn. 1949)).) The Court directed Burns "to file an amended complaint identifying the Tennessee Attorney General in his official capacity as a defendant in this action with respect to the claim that the Sex Offender Registration Act, as actually being enforced against him, violates [his] constitutional rights." (Id. at PageID# 52.) The Court denied Burns's request to reconsider its dismissal of his claims against the original defendants. (Doc. No. 8.)

Burns filed an amended complaint naming Slatery on January 10, 2019. (Doc. No. 9.) Despite the Court's refusal to reconsider its dismissal of Burns's other claims, the amended complaint repeats Burns's allegations of improper bias and ineffective assistance of counsel related to his state-court conviction. (Id.) The amended complaint also alleges that the Sex OffenderRegistration Act is unconstitutional as applied to Burns. (Id.) Burns's only allegations related to this claim are as follows:

6. Plaintiff is presently suffering "ongoing civil disabilities" by being placed on a sex offenders list and being required to register as required under Tennessee Offender and Violent Sexual Offender Registration, Verification and Tracking Act, Tenn. Code Ann. §§40-39-201 through 218, in violation of the Eight Amendment that prohibits cruel and unusual punishment being inflicted on citizens of the United States;
7. Plaintiff is unable to obtain meaningful employment because of this Conviction after a background investigation identifies the Plaintiff as a sex offender;
8. Plaintiff has been notified and instructed by the Columbia Police Department to move from his mother's home, with a specified time period to comply, because of a children's playground is close to the mother's home;
9. The Tennessee Offender and Violent Sexual Offender Registration, Verification and Tracking Act, Tenn. Code Ann. §§40-39-201 through 218 statutes are repugnant to the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and are unconstitutional;

(Id. at PageID# 54, ¶¶ 6-9.)

On January 15, 2019, the Court screened the amended complaint under 28 U.S.C. § 1915(e)(2), found that it stated a colorable claim that the Sex Offender Registration Act is unconstitutional as applied to Burns, and allowed that claim alone to proceed against Slatery in his official capacity under 42 U.S.C. § 1983 "for prospective injunctive and...

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