Prynne v. Settle

• Decision Date: 24 February 2021
• Docket Number: No. 19-1953,19-1953
• Parties: HESTER PRYNNE, Plaintiff - Appellant, v. COLONEL GARY T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police, Defendant - Appellee, and GOVERNOR RALPH S. NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

HESTER PRYNNE, Plaintiff - Appellant, v. COLONEL GARY T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police, Defendant - Appellee,andGOVERNOR RALPH S. NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant.

No. 19-1953

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 29, 2020

February 24, 2021

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:19-cv-00329-CMH-JFA)

Before GREGORY, Chief Judge, AGEE, Circuit Judge, and Stephanie A. GALLAGHER, United States District Judge for the District of Maryland, sitting by designation.

Reversed and remanded in part, affirmed in part by unpublished opinion. Judge Gallagher wrote the majority opinion, in which Chief Judge Gregory joined. Judge Agee wrote an opinion dissenting in part.

ARGUED: Timothy P. Bosson, BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Samuel T. Towell, Deputy Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Jessica Merry Samuels, Assistant Solicitor General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

GALLAGHER, District Judge:

Plaintiff-Appellant Hester Prynne¹ ("Prynne") appeals from a district court order dismissing her claim that the Virginia Sex Offender and Crimes Against Minors Registry ("VSOR") violates the Ex Post Facto Clause of the Constitution and the Due Process Clause of the Fourteenth Amendment. Because Prynne's complaint pleaded a plausible ex post facto claim, we reverse the district court's dismissal of that claim. However, we affirm the dismissal of Prynne's substantive due process claims.

I.

In 1994, Prynne pleaded guilty to one count of taking indecent liberties with a child in a custodial supervisory relationship, in violation of Virginia Code § 18.2-370.1. J.A. 10-11. While in her twenties, Prynne "had sex one time with a 15-year old male in the home where she served as a nanny." J.A. 10. The court imposed a suspended three-year sentence with four years of probation. Id. No sex offender registry existed in Virginia at the time.

A few months after Prynne's conviction, Virginia enacted VSOR, imposing registration requirements on all persons "under community supervision on July 1, 1994" for specified offenses, including violations of § 18.2-370.1. J.A. 10-11. The initial law required Prynne to register for fifteen years. Three years later, in 1997, Virginia amended VSOR, prohibiting registrants from petitioning for removal during the first ten years of their registration. J.A. 11. Because Prynne first registered in 1995, she was prohibitedfrom petitioning for removal from the registry until 2005. Id. In 2001, however, Virginia again amended VSOR, categorizing Prynne's conviction as a "sexually violent" offense, and prohibiting registrants convicted of such offenses from ever petitioning for removal throughout their lifetimes. J.A. 11. Thus, Prynne is required to remain on the registry for the rest of her life, with no hope of removal, and she is forever categorized on the public registry as the most dangerous kind of offender.²

Upon initial registration, offenders must provide a host of personal information, including name, address, photograph, work or school address, vehicle registration, email addresses and other internet aliases, fingerprints, and a DNA sample. J.A. 14-15; Va. Code Ann. §§ 9.1-903, 9.1-913. Currently, Prynne is required to reregister every three months.³ J.A. 16; Va. Code. Ann. § 9.1-904. She also must appear in person to be photographed at least every two years and must submit a new set of fingerprints every ninety days. J.A. 16. Additionally, she must expediently report any changes to her registry information,including notifying authorities within three days of a change of address and within thirty minutes of creating a new email address. J.A. 15; Va. Code Ann. § 9.1-903.

Updates to and verification of registry data must often be done in person. Prynne must report to a sex offender investigative officer who is permanently assigned to her case. This assigned officer is responsible for verifying Prynne's registry information and is permitted to visit her residence without notice. J.A. 16.

Additionally, due to her status as a registrant, Prynne is prohibited from entering any school grounds, school buses, or day care facilities during "school-related or school-sponsored activities." Va. Code Ann. § 18.2-370.5(A). She is also prohibited from adopting a child, § 63.2-1205.1, and from working in certain fields including childcare, and driving for a rideshare or tow truck service, §§ 46.2-2099.49; 46.2-116. J.A. 19.

Prynne also must comply with additional requirements to travel. She must notify the Virginia State Police ten days prior to moving her residence outside of Virginia. Va. Code Ann. § 9.1-903. When traveling internationally, she must notify federal and international law enforcement agencies, and may be barred from entering other countries altogether. Travel to other states may also trigger a requirement to register on those states' sex offender registries, sometimes even for relatively short stays. J.A. 18; e.g., Fla. Stat. § 943.0435 (requiring registration within forty-eight hours); Alaska Stat. § 12.63.010 (requiring registration on the "next working day" after arrival).

Prynne alleges that VSOR and associated laws have "restricted every aspect of [her] life." Appellant's Br. 6. She has been asked to move out of a rental property by one landlord and has been turned down by other potential landlords after they discovered herregistry status. J.A. 20. Though she has acted as "a mother figure" to her husband's youngest daughter from a previous marriage, Prynne has been unable to attend her stepdaughter's school functions. Id. She also decided not to have her own children, out of fear they would be taken away from her due to her status as a registered sex offender. Id. at 21. Because many churches operate day cares or Sunday schools, Prynne alleges that she has been limited in which church she is able to attend. Id. Prynne also claims she was fired from her job at an accounting firm because of her placement on the registry and lost another job opportunity when a potential employer discovered she was a registered sex offender. Id. at 21-22. Moreover, she has been "a victim of vigilantism," harassed and "shamed" by neighbors who discovered her registry status. Id. at 22.

Prynne alleges the registry does not actually serve "any non-punitive purpose." Id. at 20. She asserts the registry "has no discernible positive effect on recidivism," and argues empirical evidence indicates that registries like VSOR may actually "exacerbate recidivism." Id.

Prynne's complaint alleges three claims: (1) VSOR violates the Ex Post Facto Clause, (2) VSOR violates the Due Process Clause of the Fourteenth Amendment, and (3) VSOR violates the Ex Post Facto Clause of the Virginia Constitution. J.A. 26-30. Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, finding Prynne failed to state a claim under either federal constitutional provision and declining to exercise supplemental jurisdiction over the state law claim. J.A. 215. Prynne subsequently appealed.

II.

We review a district court's grant of a motion to dismiss de novo. Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). Federal Rule of Civil Procedure 12(b)(6) permits a defendant to test the legal sufficiency of a complaint by way of a motion to dismiss. In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," it is insufficient. Twombly, 550 U.S. at 555. Rather, the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely." Id. at 556 (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286(1986). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Soc'y Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011).

III.

The Ex Post Facto...