Prynne v. Northam, Civil Action No. 1:19-cv-329

HESTER PRYNNE Plaintiff, v. RALPH NORTHAM, ET AL., Defendants.

Civil Action No. 1:19-cv-329

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

August 16, 2019

MEMORANDUM OPINION

THIS MATTER comes before the Court on Defendant's¹ Motion to Dismiss (Dkt. 19) Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiff brought this suit alleging that the Virginia Sex Offender and Crimes Against Minors Registry (VSOR) violates the Ex Post Facto Clause of both the United States and Virginia Constitution and her right to Due Process under the Fourteenth Amendment to the United States Constitution. Plaintiff sued Colonel Gary Settle, Superintendent of the Virginia Department of State Police, in his official capacity.

Plaintiff is a fifty-two-year-old resident of Manassas, Virginia. In January 1994, Plaintiff pleaded guilty to one count of taking indecent liberties with a fifteen-year-old male, Va. Code § 18.2-370.1. The male at issue was her charge while she was a twenty-one-year-old nanny. The sexual relationship between Plaintiff and the male was short-lived and consensual and there was no allegation of force or physical violence on Plaintiff's part.

After pleading guilty, Plaintiff was sentenced in February of 1994 to a suspended three-year sentence and four years of probation. Plaintiff's initial sentence did not require registration as a sex offender and she was not counseled about the possibility of such a requirement.

Three months after Plaintiff's conviction, in April of 1994, the Virginia General Assembly enacted the VSOR. The legislation stated that "every person . . . under community supervision on July 1, 1994, for a felony covered by this section shall be required to register with the Department of State Police." Former Va. Code § 19.2-298.1(B) (1994). Many states began creating sex offender registries around this same time due to financial pressure placed on them by the federal government; many of the amendments to the VSOR Act over the years were also made in response to similar financial pressures.

The crime Plaintiff was convicted of was listed in the crimes subject to registration with the VSOR, id. at § 19.2-298.1(A), and because Plaintiff was still on probation, i.e. community supervision, on the effective date of the legislation, she was required to register. Plaintiff was notified of her registration obligation by her probation officer for the first time in 1995. Plaintiff complied with the obligation. In May 1996, Plaintiff was released from probation early due to her good behavior but did not petition for removal from the VSOR.

When the VSOR was first enacted in 1994, anyone required to register could petition the local Circuit Court for removal from the registry at any time. The registry was also not available to the public and was primarily accessible only by law-enforcement. In 1997, the Virginia legislature amended the VSOR to prohibit individuals from petitioning for removal within the first ten years of registration. This same set of amendments created a lifetime duty to register for those convicted of "sexually violent" offenses, a list of offenses designated by the legislature. Plaintiff's offense was not initially categorized as "sexually violent," however, the amendments made it legally impossible for her to petition for removal until 2005.

In 1998, the VSOR was again amended requiring the Virginia State Police to make the information public on the internet by January 1, 1999. A further amendment in 2001 classified Plaintiff's crime as a "sexually violent offense." This reclassification of Plaintiff's crime meant that she would be required to register with the VSOR for life and would not be permitted to petition for removal from the registry. Also, by statute, Plaintiff's page on the VSOR must indicate that her offense was "Violent."

Over time, Virginia has added further registration requirements. For example, at the time of registration, Plaintiff was required to provide a sample of tissue or blood for DNA, provide her email address and screen names, submit to fingerprinting and allow palm prints to be taken, provide information about places of employment and residence, and provide registration information for any vehicles or watercraft she owned or leased. Whenever any of that information changes, she is to notify the police with haste, and for many changes, Plaintiff must appear in person to do so. For example, whenever Plaintiff creates a new online identity, i.e. email address or screen name, she must notify the police within thirty minutes of doing so. Additionally, a sex offender investigative officer is permanently assigned to Plaintiff's specific case and can visit her residence at any time, and typically does so every six months to verify compliance with registration requirements. Plaintiff must also be photographed by law-enforcement at least once every two years. As a violent offender, Plaintiff must appear to register in-person every two years and be fingerprinted every ninety days, though the local Circuit Court recently allowed her to mail the fingerprint forms in.

In addition to her registration requirements, due to her classification as having committed a violent sexual offense, it is a crime if someone knows of her offense and leaves a child alone with her. Plaintiff may not adopt a child. She also may not enter a school or daycare facility during school hours or during school-sponsored events; though there is a statutory process to have this restriction reduced. Plaintiff complains that these restrictions have hampered her ability to become a mother, to be a mother-figure to her step-daughter, and to attend churches that have daycare facilities.

There are certain legal barriers to employment as well. Plaintiff cannot work as an educator or caretaker, drive for a rideshare service, or drive a tow truck. Plaintiff believes that her status on the VSOR was the reason she lost her job at a large accounting firm and had a tentative offer at another prestigious bank rescinded.

Plaintiff also has difficulty traveling as there are a variety of registration requirements in other states tied to her status in Virginia and many countries will not grant her a visa based on her being on the registry.

Some sex offenders also have further restrictions about where they are able to live, work, and spend their time. These restrictions are placed on certain offenders that are especially violent or those that have failed to meet their registration obligations. Plaintiff complains that she has had numerous housing opportunities taken from her based on her status on the VSOR. Though, of note, none because she was barred from accepting them.

Plaintiff filed her Complaint against Defendant alleging three counts: Violation of the United States Constitution's Ex Post Facto Clause (Count I); Violation of the Due Process Clause under the Fourteenth Amendment to the United States Constitution (Count II); Violation of the Virginia Ex Post Facto Clause (Count III). Defendant now moves to dismiss the Complaint contending that Plaintiff failed to name a proper party or state a claim upon which relief may be granted.

A motion to dismiss tests the sufficiency of the complaint. SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 441 (4th Cir. 2015). On a Rule 12(b)(6) motion to dismiss, a court must accept all well-pleaded facts as true and construe those facts in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 423 (4th Cir. 2018). The complaint must provide a short and plain statement showing that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2), and it must state a plausible claim for relief to survive a motion to dismiss, Iqbal, 556 U.S. at 679; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Defendant first contends that Plaintiff has failed to name a proper party in Colonel Settle and her Complaint should be dismissed for this reason. Defendant argues that Plaintiff's attempt to name Colonel Settle is misplaced for two reasons: (1) that respondeat superior is inappropriate in a Section 1983 case and (2) that he is not directly involved in the running of the VSOR. Defendant is correct that "principles of respondeat superior do not apply in imposing liability under [Section] 1983." Doe v. Rosa, 795 F.3d 429, 439 n.7 (4th Cir. 2015) (internal quotation marks and citation omitted). If that were the only way in which Plaintiff had named Colonel Settle as a defendant, then he would be an improper party.

To bring a Section 1983 case against a state officer in their official capacity, one must seek "prospective injunctive relief against state officials acting in violation of federal law." Frew v. Hawkins, 540 U.S. 431, 437 (2004). To be a proper party to such a suit, the state officer, "by virtue of his office [must have] some connection with the enforcement of the act . . . whether it arises out of the general law, or is specially created by the act itself." Ex parte Young, 209 U.S. 123, 157 (1908).

Here, Colonel Settle, as Superintendent of the Virginia State Police, is directly charged with enforcement of the VSOR laws, including collection of information and maintenance. Additionally, Colonel Settle is tasked with promulgating regulations concerning the VSOR laws such that he controls how registration, dissemination of information, and similar functions are implemented and the laws are enforced. Va. Code § 9.1-915. As Colonel Settle is directly tasked by the VSOR Act to enforce its provisions, he "stands in special relation" to it and is a proper party to defend constitutional claims against its enforcement. Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (noting the key issue is whether the state officer has "a specific duty to enforce the challenged statutes.")

The Court now turns its attention to...