Case 1:18-cv LY Document 6 Filed 07/10/18 Page 1 of 5. In the United States District Court for the Western District of Texas Austin Division

Transcription

1 Case 1:18-cv LY Document 6 Filed 07/10/18 Page 1 of 5 In e United States District Court for e Western District of Texas Austin Division Jack Darrell Hearn, et al., Plaintiffs, v. Civil Action No. 1:18-cv LY Vincent Castilleja, et al., Defendants. Jury Defendants Motion to Dismiss wi Brief in Support Defendants Vincent Castilleja and Steven McCraw file is motion to dismiss wi brief in support pursuant to Rule 12(b)(6) as based upon e Plaintiffs failure to state a claim. Statement of e Case Plaintiffs are sex offenders who bring a civil rights action for declaratory and injunctive relief under e United States Constitution via 42 U.S.C Plaintiffs claim at eir right to substantive due process is being denied by being required to register as sex offenders. Statement of e Issue wi Standard of Review Wheer Defendants are entitled to dismissal of e complaint based upon Rule 12(b)(6)? A claim may not be dismissed under Rule 12(b)(6) unless it appears beyond doubt at e plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, (1957). Brief in Support Each of e Plaintiffs received deferred adjudication as a result of a plea agreement. Deferred adjudication is a reportable conviction for purposes of registration required by e Sex Offender Registration Act. TEX. CODE CRIM. PRO. ART (5). More specifically, all ree Plaintiffs received deferred adjudication based upon a charge of aggravated sexual assault [D.E. 2, pp. 4, 7 &

2 Case 1:18-cv LY Document 6 Filed 07/10/18 Page 2 of 5 11], which requires at ey register as a sex offender. TEX. CODE CRIM. PRO. ART (5)(A). They claim at is violates eir right to substantive due process as deferred adjudication was not a reportable conviction at e time ey entered into eir plea agreement. Substantive due process protects fundamental rights at are so implicit in e concept of ordered liberty at neier liberty nor justice would exist if ey were sacrificed. Palko v. Connecticut, 302 U.S. 319, 325 (1937). Fundamental rights include ose guaranteed by e Bill of Rights as well as certain liberty and privacy interests implicit in e penumbra of constitutional rights and e due process clause. See Glucksberg, 521 U.S. 702, 720 (1997). Special liberty interests include e rights to marry, to have children, to direct e education and upbringing of one s children, to marital privacy, to use contraception, to bodily integrity, and to abortion. Glucksberg, 521 U.S. at 720. The Fif Circuit addressed substantive due process in e context of e Sex Offender Registration Act in King v. McCraw, 559 Fed.Appx. 278 (5 Cir. 2014). In King, e plaintiff pled guilty in 1990 and was placed on deferred adjudication for indecency wi a child. King, 559 Fed.Appx. at 279. Texas had not yet even enacted e Sex Offender Registration Act. Id. The King court found at e imposition of e requirement to register was not a violation of plaintiff s substantive right to due process and affirmed e dismissal of his complaint. King, 559 Fed.Appx. at 279. The same result should occur here. When King pled and received deferred adjudication, e sex offender registration statute did not even exist and e Fif Circuit still found his substantive due process rights had not been violated. The sex offender registration statute was in existence when e ree Plaintiffs negotiated eir plea agreement and received deferred adjudication, which put em in a better position an e plaintiff in King. This Court should follow King and dismiss

3 Case 1:18-cv LY Document 6 Filed 07/10/18 Page 3 of 5 Plaintiff s complaint for e failure to state a claim. The Fif Circuit is not alone in determining at e requirement of registering as a sex nd offender is not a violation of substantive due process. See Doe v. Cuomo, 755 F.3d 105, 114 (2 Cir 2014); United States v. Juvenile Male, 670 F.3d 999, 1013 (9 Cir. 2012) ( Given e limited range of rights at have been recognized as fundamental for e purposes of substantive due process analysis, defendants have failed to establish a substantive due process violation. ); Doe v. Michigan Department of State, 490 F.3d 491, 502 (6 Cir, 2007) ( substantive due process claims... fail on e merits ); Doe v. Moore, 410 F.3d 1337, 1345 (11 Cir. 2005) ( Though e Supreme Court has not addressed wheer substantive due process invalidates sex offender registration statutes... we can find no history or tradition at would elevate e issue here to a fundamental rights. In fact, e case law we have found supports e contrary conclusion ). Conclusion Defendants motion to dismiss pursuant to Rule 12(b)(6) should be granted and Plaintiffs complaint against em should be dismissed wi prejudice. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First JAMES E. DAVIS Deputy Attorney General for Civil Litigation BRANTLEY STARR Deputy First

4 Case 1:18-cv LY Document 6 Filed 07/10/18 Page 4 of 5 JAMES E. DAVIS Deputy Attorney General for Civil Litigation SHANNA E. MOLINARE Division Chief Law Enforcement Defense Division /s/ Attorney-in-charge State Bar No Souern District Bar No P. O. Box 12548, Capitol Station Austin, Texas (512) Fax No. (512) Attorney for Defendants Notice of Electronic Filing I, Se Byron Dennis, Assistant General of Texas, do hereby certify at I have electronically submitted for filing, a true and correct copy of e above and foregoing Defendants Motion to Dismiss wi Brief in Support in accordance wi e Electronic Case Files System of e Western District of Texas, on is e 10 day of July, /s/ Se Byron Dennis

5 Case 1:18-cv LY Document 6 Filed 07/10/18 Page 5 of 5 Certificate of Service I, Se Byron Dennis, of Texas, do hereby certify at a true and correct copy of e above and foregoing Defendants Motion to Dismiss wi Brief in Support has been served by means of e Western District of Texas s CM/ECF filing system, in accordance wi e Federal Rules of Civil Procedure on is e 10 day of July, 2018, addressed to all parties of record. /s/ Se Byron Dennis