Newsome v. Lee

• Decision Date: 04 February 2022
• Docket Number: Civil Action 3:21-cv-00041
• Parties: THOMAS NEWSOME, Plaintiff, v. WILLIAM B. LEE, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

THOMAS NEWSOME, Plaintiff,
v.
WILLIAM B. LEE, et al., Defendants.

Civil Action No. 3:21-cv-00041

United States District Court, M.D. Tennessee, Nashville Division

February 4, 2022

Richardson Judge

REPORT AND RECOMMENDATION

JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION AND BACKGROUND

This matter is before the Court upon two Motions: the first, Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Docket No. 19); and the second, Plaintiff's Motion for Preliminary Injunction (Docket No. 21). For the reasons set forth herein, the undersigned recommends that the Motion to Dismiss be DENIED and that the Motion for Preliminary Injunction be DENIED.

A. Defendants' Motion to Dismiss Plaintiff's First Amended Complaint

Defendants' filed their Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and supporting Memorandum of Law, arguing that: (1) Eleventh Amendment sovereign immunity deprives this Court of subject matter jurisdiction over Plaintiff's claims against the State of Tennessee; (2) Eleventh Amendment sovereign immunity deprives the Court of subject matter jurisdiction over Plaintiff's claims for money damages against the individual Defendants in their official capacities; (3) the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (“SORA”), Tenn. Code Ann. §§ 40-39-201 through 40-39218, as applied to Plaintiff, does not impose punishment in violation of the ex post facto clause; (4) Plaintiff does not allege sufficient facts to show that either Governor Lee or Director Rausch

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were personally involved in violating his constitutional rights; and (5) Governor Lee is not a proper Defendant to this action. Docket Nos. 19, 20.^[1]

Plaintiff has filed a Response opposing Defendants' Motion. Docket No. 23. In his Response, Plaintiff lists numerous case citations which he argues discuss “as applied” ex post facto challenges to the sex offender registration laws of various states. Id. Plaintiff argues that his allegations demonstrate a sufficient punitive impact on him to support his “as applied” challenge because “SORA has disrupted Plaintiff's ability to find housing, obtain a replacement job for the one that was denied, and travel.” Id.

Plaintiff responds that his injuries stem from the registration requirement because the label of “Violent Sex Offender” is a global declaration about who he is today, “it declares to the public that now-right now-Plaintiff is dangerous.” Id. Plaintiff contends that by “merely not informing the public about Plaintiff's 1985 conviction that he was found guilty in front of a Davidson County Criminal Court allows people to reach their own conclusions about who [he is today] and whether he is dangerous.” Id.

Plaintiff asserts that Defendants “made a conscious, deliberate policy choice to proactively enforce SORA over the course of at least the past ten years, if not longer. Specifically, Metro created a series of specialized units to enforce SORA, celebrated that unit's volume of arrests and prosecutions for SORA violations, and proactively cooperated with the Tennessee Bureau of Investigation (“TBI”) to, e.g., make registered sex offenders stay home on Halloween. Given these readily ascertainable proactive enforcement measures, identified through internet searches, it is extremely likely that Metro has made myriad other [sic] deliberate policy choices over the past fifteen years to proactively enforce SORA without regard to offenders' ex post facto rights.” Id.

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(internal citations omitted).

Plaintiff argues that “the only mandatory state policy is for Metro to cooperate in the quarterly and annual registration of offenders. T.C.A. §40-39-204. Otherwise, Metro's enforcement policies are discretionary.” Id. Plaintiff continues, “there is nothing in state law that requires Metro to go out of its way to arrest and prosecute alleged SORA violators, and nothing that requires Metro to send detectives out to SORA registrants' homes to make sure that they are still residing at their registered addresses.” Id.

Plaintiff further argues that Defendants “knew that this law was unconstitutional as applied to” him because the previous Director of the TBI and Governor of Tennessee were named in a 2016 lawsuit challenging the retroactive enforcement of provisions of the Act. Id. Plaintiff contends in his Response that there are statistical disparities that demonstrate “widespread, systemic racial bias, ” that his request to be removed from the registry was denied, and that “the Governor has a duty to enforce the state laws and the constitution.” Id.

Defendants have filed a Reply to Plaintiff's Response. Docket No. 24. In it, Defendants Reply that “not one of the cases cited [by Plaintiff in his Response] is binding precedent in this case.” Id. Defendants further reply that they continue to assert that an “as applied” challenge requires the challenging party to plead and prove facts sufficient to show that a statute is unconstitutional “as applied” to him. Id., citing Women's Med. Prof. Cor/ v. Voinovich, 130 F.3d 187, 193 (6^th Cir. 1997). Defendants note that, although the First Amended Complaint contains allegations regarding housing, it does not contain any specific, factual allegations regarding travel or employment. Id. As to the allegations regarding housing, Defendants argue that Plaintiff has not pleaded facts sufficient to show that the law is unconstitutional as applied to him. Id.

To the extent that Plaintiff alleges individual capacity claims, Defendants reply that

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Plaintiff has failed to allege that they had direct involvement in activities that caused the alleged constitutional deprivation, and that absent such, he cannot sustain this claim. Id. Defendants note that Plaintiff's Response contains allegations that were not present in his First Amended Complaint, and they assert that these additional “arguments amount at most to allegations that Governor Lee and Director Rausch ‘hold attenuated supervisory positions over those charged with implementing' the Act-which, as this Court previously ruled in this case, is insufficient to state a claim for relief.” Id., citing Docket No. 7.

B. Plaintiff's Motion for Preliminary Injunction

Plaintiff has filed a Motion for Preliminary Injunction and supporting Memorandum of Law. Docket Nos. 21, 22. Plaintiff seeks injunctive relief prohibiting Defendants from continuing to enforce SORA against him because it did not exist at the time of his conviction and therefore is being applied to him ex post facto. Id. Plaintiff argues that Defendants' continued enforcement of SORA imposes ongoing damage to his economic life, liberty, and reputation. Id. Plaintiff maintains that he has been denied housing, employment, and recreation because of his registry status, and “must constantly comply with the full panoply of registry requirement[s] on pain of arrest, incarceration, and felony prosecution.” Id.

Defendants filed their Response, arguing that Plaintiff cannot carry his burden of proving that the circumstances clearly demand the extraordinary relief that a preliminary injunction affords. Docket No. 25. Specifically, Defendants argue that Plaintiff has not demonstrated a likelihood of success as a legal matter on his “as applied” Ex Post Facto claim because the United States Supreme Court has held that the maintenance of a sexual offender registry that includes offenders whose crimes were committed prior to the adoption of the registry does not, standing alone, violate the Ex Post Facto Clause (Smith v. Doe, 538 U.S. 84, 92 (2003), and the Sixth Circuit has held

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that Tennessee's SORA constitutes a civil regulatory scheme and does not violate the Ex Post Facto Clause (Doe v. Bredesen, 507 F.3d 998, 1000 (6^th Cir. 2007). Additionally, Defendants argue that Plaintiff cannot prevail because his allegations about SORA's effects, as applied to him, do not demonstrate that SORA is punitive as applied to him. Id. Defendants further argue that Plaintiff cannot prevail because his six-month delay in filing this motion demonstrates that he is not “facing imminent and irreparable injury.” Id. Finally, Defendants argue that the State's interest in protecting the public weighs heavily against removing Plaintiff from the Sex Offender Registry. Id.

Plaintiff, pro se, filed this action pursuant to 42 U.S.C. 1983, alleging that Defendants “have violated and continue to violate Plaintiff's Constitutional right against ex post facto punishment through retroactive imposition on him” of SORA. Docket No. 15. Plaintiff argues that, as applied to him, SORA constitutes “punishment” within the meaning of the ex post facto clause of Article 1, § 10 of the United States Constitution. Id. Plaintiff avers that Defendants Lee and Rausch are “proper official capacity defendants because they both have roles in enforcing Tennessee's SORA regime”; and Defendant Rausch is a “proper personal capacity defendant because he personally directs the enforcement of SORA under color of state law.” Id. Plaintiff further avers that Metro has a policy and practice of choosing to enforce SORA through proactive enforcement measures, including by having officers “show up at registered offender's [sic] residences without warning to inspect the premises and verify residence” - without excepting those offenders whose sex offenses predate Tennessee's enactment of the SORA laws. Id. Plaintiff seeks declaratory and injunctive relief, “nominal and compensatory damages against Defendants' State of Tennessee and Metro, ” as well as “money damages for his claims against the individual Defendants in their personal and official capacities.” Id.

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II. FACTUAL ALLEGATIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

In 1984, Plaintiff was convicted of aggravated rape. Docket No. 15, ¶ 7. Plaintiff was sentenced to 55 years. Id., ¶ 9...