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Carmichael v. The Oklahoma Department of Corrections

United States District Court, W.D. Oklahoma

March 23, 2018

THOMAS CARMICHAEL, Plaintiff,
v.
THE OKLAHOMA DEPARTMENT OF CORRECTIONS, JOE M. ALLBAUGH, Director, and THE CITY OF OKLAHOMA CITY, Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' Motion to Dismiss [Doc. No. 7], to which Plaintiff has responded [Doc. No. 8]. The matter is fully briefed and at issue.

         BACKGROUND

         Plaintiff pled guilty to charges of First Degree Rape, Indecent or Lewd Acts With A Child Under Sixteen, and Indecent Exposure in May 2002. Because of his convictions, Plaintiff is required to register as a convicted sex offender pursuant to the Oklahoma Sex Offenders Registration Act (OSORA), Okla. Stat. tit. 57, §§ 581-590.2. In January 2012, Plaintiff was discharged from prison and registered as a sex offender. Plaintiff was again convicted of Lewd Acts With a Child Under Sixteen in August 2015 and sentenced to four years' imprisonment followed by ten years of probation. Plaintiff was discharged from prison in December 2016.

         On November 1, 2015, amendments to Okla. Stat. tit. 57, § 590 became effective. These amendments made it “unlawful for any person registered pursuant to the Sex Offenders Registration Act to reside, either temporarily or permanently, within a two-thousand-foot radius of any . . . park that is established, operated or supported in whole or in part by a homeowners' association or a city, town, county, state, federal or tribal government, or a licensed child care center as defined by the Department of Human Services.” Okla. Stat. tit. 57, § 590(A). On November 22, 2016, and January 17, 2017, Plaintiff was advised by the City of Oklahoma City that his Edmond, Oklahoma home was “not acceptable” as a place for him to reside due its proximity to a park. Plaintiff alleges this area is not a “park, ” but a small greenbelt owned by the homeowners' association for the area where Plaintiff owns real property and is not used for any recreational purposes.

         Although Plaintiff's Amended Complaint [Doc. No. 1-8][1] is drafted in a way which may appear he is only stating two causes of action, he in fact states three. First, Plaintiff contends that § 590 violates the Ex Post Facto Clause of the United States Constitution as its residency restriction as amended after his conviction to include parks “established, operated or supported in whole or in part by a homeowner's association” is a retroactive punishment. Second, Plaintiff asserts a claim for a violation of the Due Process Clause of the United States Constitution in that the definition of “park” is: (1) broadly drawn, (2) carries little to no weight in terms of protecting and promoting public safety, (3) has the punitive effect of denying Plaintiff the ability to reside in the home he has owned for twenty-three years and prior to his convictions, and, (4) does not encompass the greenbelt as defined by Okla. Stat. tit. 21, § 1125(G). Plaintiff contends he has suffered lost job opportunities, public humiliation, affirmative restraints on his liberty, and deprivation of the enjoyment of his property as a result of his status as a registered sex offender. Finally, Plaintiff seeks a declaration that states he is allowed to establish residence at the subject property, as well as an injunction enjoining Defendants from prohibiting him from establishing residence at the home.

         Defendants move to dismiss Plaintiff's action on the grounds that: (1) the residency restriction does not violate the Ex Post Facto Clause, and, (2) Plaintiff has failed to state a claim for declaratory relief. Defendants do not address Plaintiff's due process claim.

         STANDARD OF DECISION

         A pleading stating a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a Rule 12(b) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         However, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (noting that “[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context, ” quoting Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Therefore, Iqbal and Twombly provide “no indication the Supreme Court intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678).

         For these reasons, the Tenth Circuit held that the Iqbal/Twombly pleading standard is “a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.” Khalik, 671 F.3d at 1191 (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). The pleader's allegations need only provide the “defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. at 1192 (quoting Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) (internal quotations omitted). In other words, “Rule 8(a)(2) still lives.” Id. at 1191.

         I. Ex Post Facto Claim[2]

         Article I, Section 10, Clause 1 of the U.S. Constitution provides that “[n]o . . . state shall . . . pass . . . any ex post facto law.” Plaintiff cites to Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004, for the proposition that OSORA is punitive in nature and, therefore, a retroactive punishment in violation of the U.S. Constitution's Ex Post Facto Clause. Plaintiff's Response at 3. However, although the Court is bound by a state supreme court's interpretations of its own statutes, this Court is not so bound when determining whether those statutes violate the United States Constitution. Shaw v. Patton, 823 F.3d 556, 563 (10th Cir. 2016). In order for a statute to be in violation of the Ex Post Facto Clause, it must: (1) be applied retroactively, and, (2) if based on a civil legislative intent, it must have such a punitive effect so as to negate the civil intention. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146-1147, 155 L.Ed.2d 164 (2003).

         A. OSORA is being ...


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