L.A. ex rel. Z.Kh. v. Hoffman

• Decision Date: 28 October 2015
• Docket Number: Civ. Action No.: 14–6895 (FLW)
• Citation: 144 F.Supp.3d 649
• Parties: L.A. and Z.R., on behalf of Z.Kh., Z.Y., Z.I., and Z.A., individually and on behalf of all others similarly situated, Plaintiffs, v. John J. Hoffman, Acting Attorney General of the State of New Jersey, Defendant.
• Court: U.S. District Court — District of New Jersey

144 F.Supp.3d 649

L.A. and Z.R., on behalf of Z.Kh., Z.Y., Z.I., and Z.A., individually and on behalf of all others similarly situated, Plaintiffs,

v.John J. Hoffman, Acting Attorney General of the State of New Jersey, Defendant.

Civ. Action No.: 14–6895 (FLW)

United States District Court, D. New Jersey.

Signed October 28, 2015

L.A., Bridgewater, NJ, pro se.

Z.R., Secaucus, NJ, pro se.

Shana Ben Bellin, State of New Jersey, Trenton, NJ, for Defendant.

OPINION

WOLFSON

, United States District Judge:

Pro se Plaintiffs L.A. and Z.R. (collectively, “Plaintiffs”), who are convicted sex offenders, bring this case¹ on behalf of themselves and similarly situated individuals (“Class A”), as well as their minor children, Z.Kh., Z.Y., Z.I., and Z.A. (collectively, the “Minor Plaintiffs”), and similarly situated individuals (“Class B”), challenging recent amendments to the New Jersey Megan's Law² (“the Amended Statute”), which require the publication of certain of Plaintiffs' personal information to the New Jersey Sex Offender Internet Registry (“NJSOIR”). Plaintiffs have alleged the following violations of federal constitutional rights, through 42 U.S.C. § 1983

, and similar violations of New Jersey constitutional rights: denial of substantive due process to all plaintiffs (Counts 1 and 2); denial of procedural due process to Plaintiffs and Class A (Count 3); denial of equal protection to Plaintiffs and Class A (Counts 4 and 5); and denial of equal protection to Minor Plaintiffs and Class B (Count 6). In the instant matter, Defendant John Hoffman, the Acting Attorney General of the State of New Jersey, (“Defendant” or the “State”) moves, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss Plaintiffs' Complaint for failure to state a claim. While the pro se Plaintiffs oppose the motion, they also move for appointment of pro bono counsel, pursuant to 28 U.S.C. § 1915(e)(1), to represent them, as well as Minor Plaintiffs.

For the reasons set forth below, Defendant's motion to dismiss is granted in part and denied in part. The Court dismisses all claims of Minor Plaintiffs and the substantive due process and equal protection claims asserted by Plaintiffs. However, Plaintiffs' procedural due process claim may proceed. Additionally, the Court grants Plaintiffs' application for pro bono counsel to represent Plaintiffs, but denies Plaintiffs' pro bono counsel application on behalf of Minor Plaintiffs as moot.

I. Background

The following allegations are taken from Plaintiffs' Complaint and are accepted as true for the purposes of this motion to dismiss. Because Plaintiffs have explicitly relied on exhibits attached to their Complaint to support factual allegations integral to their claims, I rely on these exhibits when necessary to clarify Plaintiffs' allegations. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)

(A “document integral to or explicitly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment.” (citation and internal quotations omitted)).

Plaintiffs were previously convicted of sex offenses in the State of New Jersey. Compl. ¶ 11. In 2002, Plaintiff Z.R. pled guilty to second-degree endangering the welfare of a child, that was “however, treated as third-degree.” Compl. ¶ 25. In 2005, Plaintiff L.A. was convicted of second-degree criminal sexual contact and third-degree endangering the welfare of a child, for molesting and photographing his fourteen-year-old stepdaughter, as well as first-degree endangering the welfare of a child, for possession of child pornography. Compl. ¶ 14. At the time of their respective sentencings, the courts found that each Plaintiff's conduct “was characterized by a pattern of compulsive and repetitive behavior.” Compl. ¶ 11. Based on this finding, and Plaintiffs' willingness to undergo treatment, Plaintiffs were sent to the Adult Diagnostic Treatment Center (“ADTC”), instead of prison, to serve their sentences, as well as to receive therapy. Compl. ¶¶ 11, 78–79. After their release from ADTC, pursuant to Megan's Law, Plaintiffs underwent assessment of their risk of re-offense and were found to have a low risk of re-offense. Compl. ¶ 11. Accordingly, Plaintiffs were designated Tier 1 offenders (the lowest of three possible tiers) and were, therefore exempt from listing on the NJSOIR.³ Compl. ¶¶ 11, 86–88. Plaintiff Z.R. has been living in the community, offense-free, for nearly ten years. Compl. ¶ 34. He currently works as an IT specialist and paralegal, and shares joint custody of his children with his ex-wife. Compl. ¶¶ 29–30. Similarly, Plaintiff L.A. has been living in the community, offense-free, for over two years, since his release in February, 2013. Compl. ¶ 12. “He currently resides in a boarding home while he pursues his education so as to enable him to start his own business” and retains parental rights to his two sons. Compl. ¶¶ 17–18.

The NJSOIR includes information about an offender's name and aliases, sex offenses for which the offender was convicted, the determined risk of re-offense (moderate or high), physical description, car, address, and photograph. N.J.S.A. 2C:7–13(g)

. Had Plaintiffs been designated Tier 2 (moderate risk of re-offence) or Tier 3 (high risk of re-offence), or had a court specifically ordered that they be added to the NJSOIR notwithstanding their designations of Tier 1, such information would have been made available to the public via the NJSOIR website, with limited exceptions. N.J.S.A. 2C:7–13(b)–(c). The New Jersey legislature has expressed that publishing such information to the internet will enable potential victims of recidivist sex offenders to better protect themselves from sexual assault. N.J.S.A. 2C:7–12.

Recently, however, the New Jersey legislature enacted New Jersey Senate Bill S276, which as of July 2014, amended Megan's Law and mandated that sex offenders who had been found compulsive and repetitive at sentencing be listed on the NJSOIR, regardless of their classification as low risk to re-offend. Compl. ¶ 1. Plaintiffs allege that in July 2014, based on this amendment, the New Jersey Attorney General directed the addition to the NJSOIR of all Tier 1 and Tier 2 individuals previously found to be compulsive and repetitive, including Plaintiffs. Compl. ¶¶ 91–93. Because of their addition to the NJSOIR, Plaintiffs claim that they will suffer harassment, loss of employment and housing, possible physical abuse and assault, psychological trauma, and property damage. Compl. ¶ 47. In support of these allegations, Plaintiffs assert that other individuals who have been listed on public sex offender registries have been severely injured physically, psychologically, and economically by public backlash and the retaliatory attacks of private parties. Compl. ¶ 158. Plaintiffs further allege that such attacks often endanger or harm minor children of listed offenders, forcing offenders to move out of the familial home for fear of injury to their children. Compl. ¶ 168.

Plaintiffs also aver that scientific studies have demonstrated that convicted sex offenders who are found compulsive and repetitive at sentencing are actually less likely to re-offend than convicted sex offenders without such a finding. Compl. ¶ 121. Plaintiffs ascribe this difference to the treatment compulsive and repetitive sex offenders receive at ADTC. Compl. ¶¶ 124–25. Additionally, Plaintiffs claim that convicted sex offenders who are found compulsive and repetitive at sentencing, but are later assessed as having a low risk of reoffending for the purposes of tier designation, and who have been living offense free in the community for at least eight years, are actually less likely to commit a subsequent sex offense than any randomly selected male member of the general public. Compl. ¶¶ 126–39. Plaintiffs submit that because they are statistically less likely to offend than other convicted sex offenders not listed on the NJSOIR, and any male in general, adding them to the NJSOIR does not serve any rational purpose of the State.⁴ Compl. ¶ 48.

In their Complaint, Plaintiffs challenge the well-settled notion that the NJSOIR can rationally be expected to serve its express purpose of protecting the public from recidivist sex offenders. Specifically, Plaintiffs allege that the NJSOIR does not protect children from stranger recidivist sex offenders in their neighborhoods. Compl. ¶ 144 Plaintiffs further allege that only a small percentage of sexual assaults are committed by strangers or recidivists. Id. Moreover, Plaintiffs contend that those strangers who do commit sexual assaults, do so far from their own neighborhood. Compl. ¶ 152. Plaintiffs also cite to an unspecified statistical study which concludes that offender registries in general do not enhance public safety. Compl. ¶ 155. Thus, Plaintiffs allege that providing the public with a list of convicted sex offenders in their neighborhood does little to help protect the citizens at large, or their children, from sexual assault. In that regard, Plaintiffs maintain that the toxic social environment that the NJSOIR creates for sex offenders actually increases their risk of recidivism. Compl. ¶ 178.

On October 29, 2014, Plaintiffs filed their Complaint and requested to proceed in forma pauperis ; the case was assigned to Judge Pisano (retired), who denied Plaintiffs' request, finding that Plaintiffs did not meet the requirement to be indigent litigants for the purpose of paying the filing fees. Thereafter, Plaintiffs paid the fees and the Complaint was filed. The Complaint is brought by Plaintiffs on their own behalf as well as on behalf of Minor Plaintiffs, Class A members, and Class B members. Class A consists of convicted sex offenders whose conduct was found, at sentencing, to be compulsive and repetitive, but who, upon release, were not listed on the NJSOIR because they were either 1) assessed as low risk to re-offend or 2) assessed as moderate risk to...