Doe v. DeWine

• Decision Date: 15 April 2015
• Docket Number: Case No. 1:12–cv–846.
• Citation: 99 F.Supp.3d 809
• Parties: Jane DOE, Plaintiff, v. Mike DeWINE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

99 F.Supp.3d 809

Jane DOE, Plaintiff

v.Mike DeWINE, et al., Defendants.

Case No. 1:12–cv–846.

United States District Court, S.D. Ohio, Western Division.

Filed April 15, 2015.

David A. Singleton, Cincinnati, OH, for Plaintiff.

Judith B. Goldstein, Stacy Lynn Hannan, Ohio Attorney General, Columbus, OH, David Todd Stevenson, Cincinnati, OH, for Defendants.

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS (Docs. 12, 13)

SUSAN J. DLOTT, District Judge.

Plaintiff Jane Doe pled guilty in Ohio to unlawful sexual conduct with a minor and has been classified by the State as a sexual predator. Because she has been classified as a sexual predator, Doe is required by Ohio Rev.Code § 2950.07(B)(1) to register with the sheriff as a sex offender four times a year for the rest of her life, and the sheriff provides written notice to the community that includes Doe's name, address, offense, predator status, and photograph. Because of her predator classification, Doe is prohibited from living within 1,000 feet of a school.

Doe asserts that she can prove that she is no longer likely to commit another sex offense and presents no realistic risk to the public. However, Ohio law does not afford her an opportunity to demonstrate that she is no longer a threat to the public. Doe claims that the State's failure to provide her with a hearing to demonstrate that she is no longer dangerous violates her procedural and substantive due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.

The Defendants in this case, former Hamilton County Sheriff Simon Leis, Jr., Ohio (“BCII”) Superintendent Tom Stickrath, have filed motions to dismiss the case in its entirety. (Docs. 12 and 13.) For the reasons that follow, the Court DENIES Defendants' Motions.

I. BACKGROUND¹

In 2006, Doe pled guilty and was convicted of one count of unlawful sexual conduct with a minor. After a court hearing, Doe was classified as a sexual predator. “Sexual predators” were statutorily defined as persons “likely to engage in the future in one or more sexually oriented offenses.” Ohio Rev.Code § 2950.01(E) (2006).

As a classified sexual predator, Doe must register with the sheriff where she lives, works, and attends school every ninety days until her death. Each registration carries with it a cost of $25, thus Doe is required to pay $100 per year in registration fees for the rest of her life. In addition to providing the sheriff with information about her name, aliases, scars, tattoos, height, weight, eye color, home address, name and address of schools and employers, and a photograph, Doe also must report the license plate of her car and where her car is parked.

Both the Hamilton County Sheriff and the Ohio BCII maintain internet registries that publish Doe's conviction, her sex offender classification, a description of her victim, her physical characteristics, and her home address. The County's registry also includes Doe's employer and her employment address. The Sheriff's Office provides community notification about sexual predators, including Doe. Specifically, the sheriff distributes notice that includes Doe's name, photograph, home and work addresses, the crime for which she was convicted, and her predator status to the following entities or individuals located within 1,000 feet of her residence: neighbors, building managers, schools, preschools, daycare centers, children services agencies, and volunteer organizations that serves minors or other vulnerable individuals. The notice must be posted in all common entryways in any apartment building within the 1,000–feet notification zone. Doe is prohibited from living within 1,000 feet of a school, and she is prohibited from living in subsidized housing. Doe, who has four children, is having difficulty finding housing because of her predator status. If she did not have a lifetime duty to register, Doe would be eligible for subsidized housing.

Since her guilty plea and classification as a sexual predator in 2006, Doe successfully completed sex offender treatment by a psychologist qualified to treat sex offenders. This doctor evaluated Doe and concluded that she now has a very low re-offense risk. Doe was evaluated by a second treatment provider who also concluded that Doe was highly unlikely to commit another sex offense. Doe has not committed any additional sex offenses or any other crimes. Doe wants an opportunity to demonstrate to her sentencing court that she is no longer a dangerous, high-risk, sexually oriented offender.

Prior to 2003, Doe would have had the opportunity to do so, as former Ohio Rev.Code § 2950.09(D)(1) entitled predators to a hearing with the sentencing judge to prove she or he was no longer dangerous. Specifically, an offender could request a hearing one year before release from incarceration or one year after conviction if the offender was not incarcerated. After the initial filing, the petition could be renewed every five years. If the judge determined that the offender was a low risk, the offender was reclassified as a “sexually oriented offender” and ordered to register once a year for a total of ten years under former Ohio Rev.Code § 2950.07(B)(1). However, in 2003, Ohio's General Assembly eliminated a predator's right to have a hearing to prove he or she is no longer dangerous. Now, the law prohibits a judge from removing or terminating the predator classification and lifetime registration duty under Ohio Rev.Code §§ 2950.07(B)(1) and 2950.09(D)(2).²

Doe sued three defendants in this action: Mike DeWine in his official capacity as Ohio Attorney General and supervisor of the BCII's superintendent (the “Attorney General”), Tom Stickrath in his official capacity as BCII Superintendent (the “Superintendent”), and Simon Leis, Jr. in his official capacity as Hamilton County Sheriff (the “Sheriff”). She requests that this Court declare that Ohio Rev.Code § 2950.07(B)(1) violates her substantive and procedural due process rights, order that a hearing be scheduled in the sentencing court to determine whether she is currently dangerous, and award her attorney's fees and costs.

The Sheriff has filed a motion to dismiss Doe's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that it fails to state a claim upon which relief may be granted and pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that the suit fails for lack of subject-matter jurisdiction. The Attorney General and the Superintendent likewise move the Court under Fed.R.Civ.P. 12(b)(6) to dismiss the Complaint for failure to state a claim upon which relief can be granted. Both motions assert that Defendants are arms of the state and therefore are entitled to immunity under the Eleventh Amendment to the U.S. Constitution. Defendants additionally argue that the Complaint does not present a justiciable controversy and that reopening Doe's case would violate the separation of powers and res judicata doctrines.

II. STANDARD OF LAW

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.”

When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in a light most favorable to the plaintiff and accept the factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.2008). The Court “need not, however, accept conclusory allegations or conclusions of law dressed up as facts.” Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir.2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

Fed.R.Civ.P. 12(b)(1) allows a party to move to dismiss a complaint for lack of subject-matter jurisdiction. Rule 12(b)(1) motions to dismiss based on subject-matter jurisdiction generally come in two varieties—those that attack the complaint on its face and those that attack the existence of subject-matter jurisdiction in fact. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). A facial attack on subject-matter jurisdiction goes to whether the plaintiff has properly alleged a basis for subject-matter jurisdiction, and the trial court takes the allegations as true. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). In a factual attack, the party challenges the actual existence of the jurisdiction even though the complaint contains the formal allegations necessary to invoke jurisdiction. RMI Titanium, 78 F.3d at 1134–35. When the Court reviews a factual attack on subject-matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). Under both forms of attack, the plaintiff has the burden of proving the existence of subject-matter jurisdiction. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). Here, Defendants do not dispute the truthfulness of the facts alleged but rather attack the facial sufficiency of the Complaint. Accordingly, the applicable standard of review is that employed under Rule 12(b)(6). Ohio Nat'l Life Ins., 922 F.2d at 325.

III. ANALYSIS

Doe brings this action under the federal civil rights statute, 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights but provides “a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To establish a claim under § 1983, a plaintiff must “identify a right secured by the United States Constitution and deprivation of that right by a person acting under color of state law.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992).

Doe claims that her rights to substantive and procedural due process guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution are being violated by the Attorney General, the Superintendent, and the Sheriff in their official capacities. The Eleventh Amendment to the United States Constitution generally...