Duarte v. City of Lewisville, CASE NO. 4:12–CV–169

• Decision Date: 28 September 2015
• Docket Number: CASE NO. 4:12–CV–169
• Parties: Aurelio Duarte, Wynjean Duarte, Individually and as Next Friend of S.D., a Minor, and Brandi Duarte v. The City of Lewisville, Texas.
• Court: U.S. District Court — Eastern District of Texas

136 F.Supp.3d 752

Aurelio Duarte, Wynjean Duarte, Individually and as Next Friend of S.D., a Minor, and Brandi Duarte

v.The City of Lewisville, Texas.

CASE NO. 4:12–CV–169

United States District Court, E.D. Texas, Sherman Division.

Signed September 28, 2015

Richard Scott Gladden, Richard Gladden—Attorney at Law, Sarah Elizabeth Roland, Sarah Roland, Defense Lawyer, Denton, TX, Doran George Sauer, Law Office of Doran Sauer, Austin, TX, for Aurelio Duarte, Wynjean Duarte, Individually and as Next Friend of S.D., a Minor, and Brandi Duarte.

W. Andrew Messer, Messer, Rockefeller & Fort, PLLC, Frisco, TX, for The City of Lewisville, Texas.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

AMOS L. MAZZANT

, UNITED STATES DISTRICT JUDGE

Came on for consideration the report and recommendation of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636

. On August 21, 2015, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that Defendant's Motion for Summary Judgment (Dkts. # 70–75) be granted, and Plaintiffs' claims be dismissed with prejudice. Having received the report and recommendation of the Magistrate Judge (Dkt. # 91), having considered Plaintiff's timely filed objections (Dkt. # 94), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and hereby adopts the Magistrate Judge's report (Dkt. # 91) as the findings and conclusions of the Court.

BACKGROUND

The facts in this case originate from a child sex offender residency restriction ordinance (the "Ordinance"), enacted by Defendant City of Lewisville, Texas (the "City"), its application to Plaintiff Aurelio Duarte ("A. Duarte") and, by extension, its effects on A. Duarte's wife, Wynjean Duarte ("W. Duarte"), and children ("S.D." and "B.D."). The facts are set out in detail by the Magistrate Judge, and need not be repeated herein (see Dkt. # 91). In summary, A. Duarte is a convicted child sex offender and is required to register with the Texas Department of Public Safety's Sex Offender Database (the "Database") because of his conviction involving a minor; thus, Plaintiff is prohibited by the City's Ordinance from residing in the City "within 1,500 feet of any premises where children commonly gather," subject to a number of affirmative defenses (Dkt. # 70, Exs. 1, 3; Dkt. # 1 at 3, ¶ A). Plaintiffs' Complaint is comprised of two sets of claims: (1) claims asserted by Plaintiff A. Duarte himself, and (2) claims asserted by W. Duarte, S.D., and B.D. (the "Duarte Family") (Dkt. # 1 at 7, 9, 10). Plaintiffs assert that the imposition of a child predator buffer zone, or a restriction on where persons required to register on the Database because of convictions regarding a minor, may live in relation to "premises where children commonly gather," is a violation of the rights afforded them by and/or through the United States Constitution. Id.

The procedural posture of this case is lengthy, and is fully recited by the Magistrate Judge (Dkt. # 91 at 9–10). The Court will describe only those procedural events related to the instant motion and occurring since the Magistrate Judge's report and recommendation was entered. On June 5, 2015, the City filed its Motion for Summary Judgment and Brief in Support (Dkt. # 70–75) seeking summary judgment on all claims. On July 7, 2015, Plaintiffs filed their response (Dkt. # 84), and on July 17, 2015, the City filed its reply (Dkt. # 89). On August 21, 2015, after a thorough analysis of Plaintiffs' claims and the parties' summary judgment arguments, the Magistrate Judge entered a report and recommendation finding Plaintiffs' claims should be dismissed with prejudice in their entirety (Dkt. # 91). Specifically, the Magistrate Judge recommended Plaintiff A. Duarte's claims for violations of (1) the Ex Post Facto Clause of Article 1, Section 10 of the United States Constitution; (2) the Double Jeopardy Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983

; and (5) the Due Process Clause of the Fourteenth Amendment be dismissed with prejudice. Id. The Magistrate Judge further recommended that the Duarte Family's procedural due process claim be dismissed with prejudice, and that all Plaintiffs' claims for declaratory and injunctive relief be dismissed with prejudice. Id.

On September 4, 2015, Plaintiffs timely filed their Written Objections to Magistrate's Findings, Conclusions, Report and Recommendation on Defendant's Motion for Summary Judgment (Dkt. # 94). Plaintiffs make essentially two objections to the report and recommendation of the Magistrate Judge: (1) A. Duarte objects to the Magistrate Judge's finding that the Ordinance does not deprive him of equal protection in violation of the Fourteenth Amendment; and (2) all Plaintiffs argue that they have been deprived of procedural due process under the Fourteenth Amendment by application and enforcement of the Ordinance, and that they hold a "liberty interest" in residing together with immediate family within the areas of the City that are prohibited by the Ordinance (Dkt. # 91 at 34; Dkt. # 94 at 2–3). Notably, Plaintiff specifically states in his objections, "A. Duarte confines his objections, in this response to the Magistrate's report, to the claims stated above, denial of procedural Due Process and Equal Protection, and hereby abandons all other claims" (Dkt. # 94 at 3). Accordingly, the report and recommendation of the Magistrate Judge is hereby adopted regarding A. Duarte's claims for violations of the Ex Post Facto Clause, the Double Jeopardy Clause, and his civil rights under 42 U.S.C. § 1983

, and the Court finds these claims should be dismissed with prejudice. The Court will now consider Plaintiffs' objections related to the equal protection and procedural due process claims in turn.

I. Equal Protection

A. Duarte asserts that the Ordinance deprives him of his constitutional right to Equal Protection of Law in violation of the Fourteenth Amendment to the United States Constitution (Dkt. # 1 at 12; Dkt. # 91 at 29). A. Duarte asserts that the Ordinance places persons into two classes, both of which involve persons who are required to register as child sex offenders under Texas law (Dkt. # 84 at 16; Dkt. # 91 at 30). The first class of individuals (which includes A. Duarte) is comprised of child sex offenders who are not on community supervision and are subject to the residency restrictions in the Ordinance. Id. The second class encompasses sex offenders who at the time the Ordinance went into effect were on community supervision and were judicially relieved from compliance with the one-thousand (1,000) foot residency restriction otherwise required as a condition of their supervision under Section 13B of Article 42.12 of the Texas Code of Criminal Procedure

(which will be discussed in greater detail infra ). Id. Individuals in the second class are not required to comply with the residency restrictions under one of the six (6) affirmative defenses available in the Ordinance (Dkt. # 70, Ex. 1 at 4–5; Dkt. # 91 at 30). A. Duarte argues that the imposition of the residency restriction on him, but not the second class of sex offenders, deprives him of equal protection (Dkt. # 84 at 16; Dkt. # 91 at 30).

The Magistrate Judge first analyzed whether the Ordinance involves a suspect class or a fundamental right in order to determine which judicial scrutiny test is appropriate to use, and found that sex offenders and/or persons included on the Texas sex offender registry are not a suspect class (Dkt. # 91 at 30–31 (citing Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir.2014)

)). The Magistrate Judge further found that, although A. Duarte argued that he has a fundamental right to live where he wishes and that the Ordinance constitutes a direct regulation on family affairs and/or his right to associate, no fundamental right is implicated by the Ordinance. Id. at 31–34. Accordingly, the Magistrate Judge applied the rational basis test stating that "the Ordinance will be upheld as long as it is rationally related to a legitimate government purpose." (Dkt. # 91 at 34 (citing Hines v. Alldredge, 783 F.3d 197, 202–03 (5th Cir.2015) ). The Magistrate Judge found that there is a conceivable set of facts that provides a rational basis for the imposition of the Ordinance, and recommended that A. Duarte's equal protection claim be dismissed. Id.

A. The Magistrate Judge Properly Applied the Rational Basis Test

A. Duarte does not object to the Magistrate Judge's finding that the Ordinance should be analyzed using the "more deferential" rational basis test (Dkt. # 94 at 13). Accordingly, the Court focuses on A. Duarte's argument that the Magistrate Judge failed to properly analyze—under the test set forth in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)

—whether "A. Duarte (Class [1] ) has a 'distinguishing characteristic,' in relation to those exempted by the [Ordinance] (Class [2] ), that is 'relevant to interests the State has the authority to implement' " (Dkt. # 94 at 13).¹ A. Duarte also contends that the City must demonstrate that the different and greater burden imposed on A. Duarte by application of the Ordinance (in relation to the second class of individuals who are not so burdened) constitutes a "rational means to serve a legitimate end." Id. A. Duarte argues that the Magistrate Judge's failure to apply these tests constitutes error.

As an initial matter, the "test" advocated by A. Duarte is not the test described by the Supreme Court in Cleburne,

and the quotes and citations from Cleburne are somewhat taken out of context.² The Supreme Court held in Cleburne

that the Equal Protection Clause mandates "all persons...