United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf United States District Judge.
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
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.
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).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
the Eight Circuit's traditional Dataphase test,
“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.
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).
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
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”).
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). 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
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
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 ...