Anderson v. Holder

691 F. Supp.2d 57

Grant ANDERSON, Plaintiff, v. Eric HOLDER et al., Defendants.

Civil Action No. 09-1197 (RWR).

United States District Court, District of Columbia.

March 5, 2010.

Grant Anderson, Washington, DC, pro se.

Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, Jacques P. Lerner, Office of the Attorney General for DC, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Grant Anderson, a District of Columbia parolee, brought this action against federal and District of Columbia government defendants¹ alleging that the parole condition requiring his registration as a sex offender under the District's Sex Offender Registration Act of 1999 ("SORA"), D.C.Code §§ 22-4001-4017, violates the Eighth Amendment, the ex post facto and equal protection clauses of the Constitution, and the District's Human Rights Act, Compl. ¶¶ 1, 16, and that his alleged participation in compelled "polygraph examinations and psycho-therapy sessions" under the "Sexual Registration program" violates the Fifth Amendment's protection against self-incrimination. Id. ¶¶ 11-12. He seeks an injunction and a declaratory judgment that these violations stem from defendants' practices, policies or customs. Id. at 5.

The District of Columbia defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim Dkt. No. 7. The federal defendants move to dismiss under Rule 12(b)(6) Dkt. No. 16. Based on the parties' submissions, the motions to dismiss under Rule 12(b)(6) will be granted.

I. BACKGROUND

Plaintiff was convicted on September 7, 1988, in the Superior Court of the District of Columbia for assault with intent to commit rape while armed, two counts of burglary while armed, and one count of resisting a police officer with a dangerous weapon. Anderson v. D.C. Public Defender Serv., 881 F.Supp. 663, 663 (D.D.C. 1995). He was sentenced on September 13, 1988, to life imprisonment, Fed. Def.'s Mot., Ex. B, and was released on January 23, 2009, to parole supervision for life.² Id., Ex. C. As a condition of his release to parole, plaintiff agreed-as evidenced by his initials, hand-written statement of his understanding and signature—to comply with the law "to report and register as a sex offender." Id. (Certificate of Parole at 2 ¶ 16).

Plaintiff then filed this action alleging that he "has been forced to participate in the passage of a prospective law ... or face the prospect of having his parole revoked, thus depriving him of his liberty interest or freedom." Compl. ¶ 10. He also alleges that his "answers and responses to polygraph tests may be used to negate his claims of innocence while seeking federal habeas corpus proceedings," id. ¶ 12, and that he is being subjected to "a greater punishment ... than ordered and promulgated by D.C. Superior Court in his criminal case." Id. ¶ 16.

II. DISCUSSION

1. Subject Matter Jurisdiction

The District of Columbia defendants' Rule 12(b)(1) motion to dismiss argues that "plaintiff lacks standing because the District of Columbia does not control his parole conditions and is therefore not a proper defendant." Memorandum of Points and Authorities in Support of Defendant District of Columbia's Motion to Dismiss the Complaint at 6. The argument conflates two materially different concepts. There is no question that plaintiff is subjected to the locally enacted SORA; thus, he has legal standing to challenge the statute's enforcement against him. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ("A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.") (citation omitted); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (in determining standing, "the gist of the question" is whether plaintiff has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions"). Moreover, the SORA is "a codified law of the District that qualifies as a practice, policy, or custom of the District of Columbia" for which the District "`can be sued directly under 42 U.S.C. § 1983 for monetary, declaratory, or injunctive relief. . . .'"³Washington v. Fenty, 611 F.Supp.2d 45, 48 (D.D.C.2009) (quoting Monell v. Dep't of Social Svcs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Whether the District is a proper defendant to redress plaintiff's claim, then, does not affect plaintiff's standing to sue but rather is a question for consideration under Rule 12(b)(6). The District's motion to dismiss under Rule 12(b)(1) therefore will be denied.

2. Failure to State a Claim

"To survive a motion to dismiss under Rule 12(b)(6) , a complaint must contain sufficient factual matter, acceptable as true, to `state a claim to relief that is plausible on its face.' ... A plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ____ U.S. ____ 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A court `must treat the complaint's factual allegations as true ... and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000)). A court need not "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must a court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). In deciding a Rule 12(b)(6) motion, "a court may consider `only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which a court may take judicial notice.'" U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., Civil Action No. 04-280(RWR), 685 F.Supp.2d 129, 133, 2010 WL 623466, at *2 (D.D.C., Feb. 23, 2010) (quoting Trudeau v. FTC, 456 F.3d 178, 183 (D.C.Cir.2006)).

A. Equal Protection Claim

Because the Fourteenth Amendment's equal protection clause applies only to laws enacted by state governments, the Supreme Court has found the Fifth Amendment's due process clause to encompass equal protection claims against the District of Columbia. Bolling v. Sharpe, 347 U.S. 497, 498-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Such a claim "does not require that all persons everywhere be treated alike. Instead, it imposes the rather more modest requirement that government not treat similarly situated individuals differently without a rational basis." Noble v. U.S. Parole Comm'n, 194. F.3d 152, 154 (D.C.Cir.1999). To succeed on an equal protection claim, plaintiff must show that "he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (citations omitted). "Where the claim is invidious discrimination in contravention of the . . . Fifth Amendment , . . . the plaintiff must plead and prove that the defendant acted with discriminatory purpose. . . on account of race, religion, or national origin." Iqbal, 129 S.Ct. at 1948-49 (citations omitted). Plaintiff has stated no facts to support an equal protection claim based on either disparate treatment or protected class status.

B. Self-Incrimination Claim

The Fifth Amendment prohibits the government from compelling an individual "in any criminal case to be a witness against himself." U.S. Const. amend. V. Plaintiff asserts that three months after his release to parole, he was to "allegedly submit to polygraph examination to answer correctly and truthfully, which allegedly was an amended condition of release without Commission approval." Pl.'s Pro Se Memorandum in Opposition to District of Columbia's Motion to Dismiss the Complaint Dkt. No. 8 at 4. Plaintiff further asserts that he was "compelled to see a Pyscho/Therapist . . . or face parole revocation. . . ." Id. Even if true, those facts do not support a self-incrimination claim as to his offenses of conviction because "where as here there can be no further incrimination due to a final judgment of conviction and a fixed sentence, there is no basis for the assertion of the privilege." Mitchell v. U.S., 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); see U.S. v. Davis, 242 F.3d 49, 51 (1st Cir.2001) (stating further that although "the Fifth Amendment privilege against compelled self-incrimination applies in the context of interviews with probation officers . . ., ok-the general obligation to appear and answer questions truthfully does not amount to compulsion") (quoting Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)) (internal quotation marks omitted); Huschak v. Gray, 642 F.Supp.2d 1268, 1282 (D.Kan.2009) ("Persons asserting a Fifth Amendment privilege are not exonerated from answering merely because they declare that in so doing they would incriminate themselves; their say-so does not of itself establish the hazards of incrimination."). Besides, plaintiff's conclusory statement that his "answers and responses to polygraph tests may be used to negate his claims of innocence" in habeas proceedings, Compl. ¶ 12, is not only speculative but also raises doubt about his innocence claim.

In any event, plaintiff does not allege that he asserted his Fifth Amendment privilege...