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Doe v. Peterson

United States District Court, D. Nebraska

October 22, 2018

JOHN DOE, Plaintiff,
DOUG PETERSON, Attorney General of the State of Nebraska, in his official capacity, and JOHN A. BOLDUC, Superintendent of Law Enforcement and Public Safety for the Nebraska State Patrol, in his official capacity, Defendants.


          Richard G. Kopf United States District Judge.

         On October 15, 2018, a hearing was held on Plaintiff's request for a preliminary injunction (Filing 2). After carefully considering the evidence adduced and arguments presented at the hearing, as well as the parties' pre-hearing briefs, I have determined that a preliminary injunction will not issue, and that the temporary restraining order I entered on September 11, 2018 (Filing 9), must be lifted.[1]

         I. Background

         Plaintiff commenced this action on September 7, 2018, after receiving a letter from the Nebraska State Patrol advising that he was required to register as a sex offender under Nebraska law, as recently construed by the Nebraska Supreme Court in State v. Clemens, 915 N.W.2d 550 (Neb. 2018) (holding that Nebraska law requires sex offender registration based on a registration requirement from another state even if the requirement in the other state is based on a juvenile adjudication). Plaintiff, who has resided in Omaha, Nebraska, since 2004, was adjudicated delinquent in juvenile court Iowa, in 1999, for violating section 709.3 if the Code of Iowa (“Sexual Abuse in the Second Degree”) when he was 14 years old.

         Plaintiff brings an as-applied challenge to the constitutionality of provisions of the Nebraska Sex Offender Registration Act (“SORA”) that require any person who“[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States” to register in Nebraska. Neb. Rev. Stat. § 29-4003(1)(a)(iv) & (b)(iii).[2]Plaintiff contends these provisions deprive him of equal protection, and impede his constitutional right to travel, because persons who are adjudicated delinquent as juveniles in Nebraska are not required to register as sex offenders under SORA. See 272 Neb. Admin. Code ch. 19 § 003.05C (“The registration requirement does not apply to a person who: .... Is a juvenile adjudicated ‘delinquent' or ‘in need of special supervision' by the juvenile courts in the state of Nebraska[.]”).

         II. Discussion

         Under the Eight Circuit's traditional Dataphase test, [3] “issuance of a preliminary injunction depends upon a ‘flexible' consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 729 n. 3 (8th Cir. 2008) (en banc). The third factor generally requires a showing that the moving party has a “fair chance of prevailing” on the merits, with a “fair chance” meaning something less than fifty percent. Id. at 730.

         But where, as here, the moving party is seeking a preliminary injunction of the implementation of a validly enacted state statute, a more rigorous standard applies: It must be shown that the moving party “is likely to prevail on the merits.” Id. at 731-32 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). If the party with the burden of proof makes a threshold showing that it is likely to prevail on the merits, the district court should then proceed to weigh the other Dataphase factors. Id. at 732. “Put another way, ‘without a likelihood of success, an injunction is not justified.'” Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 754 (8th Cir. 2018) (quoting Does v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017)). Thus, if a district court determines that the moving party is not likely to prevail on the merits, that ends the analysis. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (“In such cases, it is only after finding a party is likely to prevail on the merits that a district court should weigh the other Dataphase factors.”), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012); Waters v. Ricketts, 159 F.Supp.3d 992, 998 (D. Neb. 2016) (same).[4]

         Looking first at Plaintiff's equal protection claim, I am not persuaded that he is likely to prevail on the merits. “The Equal Protection Clause of the Fourteenth Amendment ... is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff contends that, apart from the fact he was adjudicated delinquent by an Iowa juvenile court applying Iowa law, he “is similarly situated ... to individuals with juvenile adjudications of SORA-related offenses from Nebraska courts” applying Nebraska law. (Filing 17, p. 7) While similarities undoubtedly exist, the distinction regarding the place of adjudication is not without a difference.

         The Supreme Court recognizes an equal protection claim for discrimination against a “class of one”-meaning “the plaintiff did not allege membership in a class or group.” Barstad v. Murray Cty., 420 F.3d 880, 884 (8th Cir.2005) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “To be similarly situated for purposes of a class-of-one equal-protection claim, the persons alleged to have been treated more favorably must be identical or directly comparable to the plaintiff in all material respects.” Robbins v. Becker, 794 F.3d 988, 996 (8th Cir. 2015) (emphasis supplied) (quoting Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir.2010)); accord Bills v. Dahm, 32 F.3d 333, 335 (8th Cir.1994) (explaining equal protection comparators must be similarly situated “in all relevant respects”).

         Although Plaintiff may deem it immaterial that he was adjudicated delinquent in Iowa rather than Nebraska, his need to register as a sex offender in Nebraska depends solely upon whether he “is required to register as a sex offender under [Iowa law], ” Neb. Rev. Stat. § 29-4003(1)(a)(iv) & (b)(iii).[5] It is undisputed that Plaintiff is now subject to a lifetime registration requirement under Iowa law as a result of his juvenile adjudication in that state. (Filing 31, p. 2, ¶ 10) It is also undisputed that if Plaintiff were currently residing in Iowa rather than Nebraska, his registration information would be published on the Iowa Sex Offender Registry website. (Filing 31, p. 2, ¶ 11; Filing 33, p. 10) While it is true, as Plaintiff argues, that he “would be treated differently today, had his juvenile adjudication occurred in Nebraska rather than Iowa” (Filing 17, p. 8), it is equally true that had Plaintiff been a Nebraska resident at the time of his Iowa juvenile adjudication, he would be treated no differently today.

         In Doe v. Jindal, No. CV15-1283, 2015 WL 7300506 (E.D. La. Nov. 18, 2015), the plaintiff was convicted of a sex offense in Alabama and was required to register as a sex offender for life. The plaintiff then moved to Louisiana, where a conviction for a comparable offense would have resulted in a shorter registration requirement. However, under a provision of Louisiana's sex offender registry law, “if a person is convicted of a sex offense in a state other than Louisiana, and that state's period of registration for the offense is longer than the registration period that Louisiana law would require, Louisiana applies the registration period required by the offender's state of conviction.” Id. at *3. The plaintiff's challenge to this provision on equal protection grounds was rejected by the district court in granting the defendants' Rule 12(b)(6) motion to dismiss, as the court stated:

Here, Doe's allegations are flawed at their outset. In his complaint, Doe alleges that, as a person convicted of an Alabama sex offense and sentenced to a lifetime term of sex offender registration by an Alabama court, he is similarly situated to persons convicted of Louisiana sex offenses and sentenced to a term of registration by a Louisiana court. Doe is materially unlike, and therefore not similarly situated to, Louisiana offenders because he was convicted and sentenced of an Alabama offense, which carries penalties different from a Louisiana offense. See Castaneira v. Potteiger, No. 3:13cv3108, 2014 WL 4716621, at *6 (M.D. Pa. Sept. 22, 2014), aff'd, [621 Fed.Appx. 116], 2015 WL 4385694 (3d Cir. 2015) (“Plaintiff is not similarly situated to offenders convicted of similar crimes in Pennsylvania [because he] was arrested, charged and convicted in Georgia.”); Creekmore v. Attorney Gen. of Tex., 341 F.Supp.2d 648, 663 (E.D. Tex. 2004) (“[Plaintiff] is not similarly situated to individuals convicted under the Texas Penal Code .... [Plaintiff] is similarly situated to individuals convicted of a sex offense in a jurisdiction other than Texas.”); Oulman v. Setter, No. A13-2389, 2014 WL 3801870, at *3-4 (Minn.Ct.App. 2014) (“[I]ndividuals may be classified as dissimilarly situated based on location. ... [Plaintiff] belongs to that class of persons who commit crimes in violation of another state's laws, who are subject to registration requirements of that state, and who relocate to Minnesota.”). Importantly, Doe admits that an Alabama state court initially imposed the lifetime registration requirement as part of his sentence. See Castaneira v. Potteiger, 2014 WL 4716621, at *6 (“[P]laintiff is not similarly situated to Pennsylvania offenders because Georgia, not Pennsylvania, imposed the special condition.”). Because Alabama, and not Louisiana, has the specific, penological interest in imposing a lifetime registration requirement on Alabama offenders, such as Doe, Doe is different in fact from Louisiana offenders. Therefore, Louisiana need not treat Doe or other offenders with out-of-state convictions the same under the law. See Plyler v. Doe, 457 U.S. 202, 216 (1982). “Different treatment of [persons] who are not similarly situated does not offend equal protection.” Apache Bend Apartments, Ltd. v. United States ex rel. IRS, 987 F.2d 1174, 1182 (5th Cir. 1993) (Goldberg, J., dissenting).

Id. at *8 (footnote omitted). I agree with this analysis, and conclude that Plaintiff is not likely to prevail on the merits of his equal protection claim because he is not similarly situated in all material respects to individuals whose adjudications were ...

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