Doe v. Abbott, CIVIL ACTION NO. 3:18-CV-0629-B

• Decision Date: 19 November 2018
• Docket Number: CIVIL ACTION NO. 3:18-CV-0629-B
• Citation: 345 F.Supp.3d 763
• Parties: John DOES #1-7, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Greg ABBOTT, Governor of the State of Texas, and Colonel Steven McGraw, Director of the Texas Department of Public Safety, Defendants.
• Court: U.S. District Court — Northern District of Texas

345 F.Supp.3d 763

John DOES #1-7, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

v.Greg ABBOTT, Governor of the State of Texas, and Colonel Steven McGraw, Director of the Texas Department of Public Safety, Defendants.

CIVIL ACTION NO. 3:18-CV-0629-B

United States District Court, N.D. Texas, Dallas Division.

Signed November 19, 2018

Terence Estes-Hightower, Estes-Hightower PLLC, Dallas, TX, for Plaintiffs.

Michael Abrams, Office of the Texas Attorney General, General Litigation Division, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

Plaintiffs 152 John Does—all individuals either convicted of or charged with sexual offenses and covered by Texas's Sex Offender Registration Program—bring suit asking this Court to declare large parts of the statute unconstitutional. In sum, Plaintiffs argue that the statute, which began as a private law-enforcement database in 1991, has radically expanded in its obligations, restraints, and disabilities over the last three decades, to the point that it currently infringes on their constitutional rights. Defendants in turn seek dismissal of this suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) arguing that the Supreme Court's decision in Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), cases from this Circuit interpreting that opinion, and long-standing constitutional principles warrant a complete dismissal of Plaintiffs' claims. Having been fully briefed on this Motion, the Court agrees with Defendants, and for the reasons discussed below GRANTS Defendants' Motion to Dismiss under Rule 12(b)(1) and DISMISSES with prejudice all of Plaintiffs' claims against Governor Greg Abbott for a lack of standing, and GRANTS Defendants' Motion to Dismiss under Rule 12(b)(6) and DISMISSES with prejudice all of Plaintiffs' claims on the merits.

I.BACKGROUND¹

This dispute involves the constitutionality of Chapter 62 of the Texas Code of Criminal Procedure, which establishes the Texas Sex Offender Registration Program (hereinafter "Chapter 62"). Specifically, the suit challenges the constitutionality of certain provisions in the most recent amendment to Chapter 62 made in 2017. The suit is brought by 152 individual Plaintiffs on behalf of themselves and as a putative class action on behalf of all others who are similarly situated. Although each Plaintiff has uniquely individualized factual allegations thoroughly outlined in their Amended Complaint, each Plaintiff was charged or convicted with an offense covered by the statute prior to the 2017 version of Chapter 62 going into effect and is currently subject to the statute's requirements.² Doc. 4, Am. Compl., ¶ 2.

Plaintiffs filed suit under 42 U.S.C. §§ 1983 and 1988 challenging the constitutionality of Chapter 62 on ten separate grounds. See id. ¶ 7. As addressed in more depth below, Plaintiffs argue that large portions of Chapter 62 are unconstitutional because: (Count I) the tier-ranking system employed by the statute violates the Due Process Clause by stigmatizing Plaintiffs without affording them a hearing or individualized consideration, id. ¶¶ 273–81; (Count II) the statute violates the Due Process Clause by interfering with Plaintiffs' ability to travel, id. ¶¶ 282–85, and (Count III) engage in certain employment opportunities, id. ¶¶ 286–290; (Count IV) the statute's requirements for reporting online account information and activity violates the First Amendment by interfering with their rights to use the Internet as a forum for speech, id. ¶¶ 291–93; (Count V) certain statutory provisions are vague, impossible to fully comply with, and impose strict liability in violation of the Due Process Clause, id. ¶¶ 294–98; (Count VI) the statute violates the Equal Protection Clause as to John Doe # 3, id. ¶¶ 299–304; (Count VII) the statute violates the Ex Post Facto Clause by retroactively punishing Plaintiffs for offenses committed before the 2017 version was enacted, id. ¶¶ 305–07; (Count VIII) the statute violates the Eighth Amendment's protection against cruel and unusual punishment, id. ¶ 308; (Count IX) the statute violates the Double Jeopardy Clause by imposing additional punishments for the same offense, id. ¶ 309; and (Count X) the statute violates the Contracts Clause by adding punishment conditions that violate many of Plaintiffs' plea agreements, id. ¶ 310.

In response to these allegations, Defendants filed this Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 17, Defs.' Mot. to Dismiss, 1. Defendants moved to dismiss Plaintiffs' claims against Defendant Governor Greg Abbott under Rule 12(b)(1) on jurisdictional grounds, arguing that Plaintiffs lack standing, and in the alternative, that as Governor of the State of Texas, Abbott is entitled to Eleventh Amendment immunity. Doc. 18, Defs.' Br. Dismiss, 2–5. The remainder of Defendants' Motion seeks to dismiss all of Plaintiffs' claims under Rule 12(b)(6) arguing that the claims are either barred by Supreme Court precedent or "fail to overcome the State's regulatory interest in notifying the public of individuals with reportable convictions or adjudications for sex offenses."Id. at 1. Plaintiffs filed their Response (Docs. 27 & 29) to Defendants' Motion, and Defendants filed their Reply (Doc. 36). Defendants' Motion is therefore ripe for the Court's review.

II.LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

" ‘Federal courts are courts of limited jurisdiction.’ " MacKenzie v. Castro , No. 3:15-cv-0752-D, 2016 WL 3906084, at *2 (N.D. Tex. July 19, 2016) (quoting Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998) ). For that reason, they can adjudicate claims only when subject matter jurisdiction "is expressly conferred by the Constitution and federal statute." Armstrong v. Tygart , 886 F. Supp. 2d 572, 584 (W.D. Tex. 2012). And Federal Rule of Civil Procedure 12(b)(1) provides the vehicle through which a party may challenge that jurisdiction. Id. "Standing is an issue of subject matter jurisdiction, and thus can be contested by a Rule 12(b)(1) motion to dismiss." Little v. Tex. Attorney Gen. , 2015 WL 5613321, at *2 n.5 (N.D. Tex. Sept. 24, 2015) (citing Lee v. Verizon Commc'ns Inc. , 954 F. Supp. 2d 486, 496 (N.D. Tex. 2013) ).

"A Rule 12(b)(1) motion can mount either a facial or factual challenge." MacKenzie , 2016 WL 3906084, at *2. A facial challenge occurs "[w]hen a party files a Rule 12(b)(1) motion without including evidence." Id. A factual challenge, by contrast, occurs when a party supports its Rule 12(b)(1) motion with evidence. Id.

In both cases, the burden of proof " ‘is on the party asserting jurisdiction.’ " Id. (quoting Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) ). So Plaintiffs must prove jurisdiction exists. Here, Defendants filed their Rule 12(b)(1) motion without any additional evidence, so it is considered a facial attack. Thus, the Court considers just the sufficiency of "the allegations in the complaint because they are presumed to be true." Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981). And "[i]f those jurisdictional allegations are sufficient, the complaint stands." Id.

B. Federal Rule of Civil Procedure 12(b)(6)

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Id. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007). The court will "not look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts." Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999).

To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. When well-pleaded facts fail to achieve this plausibility standard, "the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679, 129 S.Ct. 1937 (internal quotation marks and alterations omitted).

III.ANALYSIS

The Court now turns to Defendants' grounds for dismissal under Rules 12(b)(1) and 12(b)(6). Because the Fifth Circuit has instructed courts to first address jurisdictional arguments before any attack on the merits, the Court will begin with Defendants' arguments under Rule 12(b)(1). See Ramming , 281 F.3d at 161. However, to put the dispute in context, the Court first summarizes the historical background and relevant provisions of Chapter 62.

A. Texas's Sex Offender Registration Program

The first sex-offender registration laws in Texas took effect in 1991, and have been amended in every subsequent legislative session. Doc. 18, Defs.' Br. Dismiss, 8. The statute tasks the Texas Department of Public Safety with enforcement and implementation of Chapter 62. Tex. Code Crim. Proc. arts. 62.001(1), 62.005(a). Prior to 1997, Chapter 62's requirements applied only to those persons convicted of a sex...