United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
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.
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.
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
Plaintiff's Amended Complaint [Doc. No.
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.
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.
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
“[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).
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.
Ex Post Facto Claim
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).
OSORA is being ...