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McNamara v. State

United States District Court, S.D. Indiana, Indianapolis Division

December 2, 2016

JOHN R. MCNAMARA, Plaintiff,
v.
STATE OF INDIANA, Defendant.

          ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER PROCEEDINGS

          Hon. Jane Magnus-Stinson, Chief Judge

         I.

         Plaintiff John R. McNamara filed a civil rights action alleging that his constitutional rights will be violated when he is released from the New Castle Correctional Facility on December 27, 2016, and is required by Indiana law to register on the Indiana Sex Offender Registry with a designation he is a sexually violent predator. Ind. Code § 35-38-1-7.5.

         II.

         The plaintiff is a prisoner currently incarcerated at New Castle Correctional Facility (“New Castle”). Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).

         III.

         In the complaint, the plaintiff acknowledges that he will have to register on the Indiana Sex Offender Registry. However, he alleges his designation as a sexually violent predator under Indiana law is unconstitutional because the law was passed in 2007, yet he was found guilty in 2003 and therefore should not be subject to the requirements of a 2007 law. This is a claim that the plaintiff's rights under the Ex Post Facto clause will be violated. The plaintiff also alleges that the Indiana Department of Correction's (“IDOC”) requirement that he participate in the SOMM program while incarcerated violates his rights under the Constitution.

         IV.

         To state a claim under ' 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). This court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1331.

         Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, “the first step in any [§ 1983] claim is to identify the specific constitutional right infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). A corollary to this rule is that without a predicate constitutional violation one cannot make out a prima facie case under § 1983. Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992).

         In this case, the complaint makes reference to constitutional provisions but does not allege a plausible violation of them.

         The plaintiff's claim under the Ex Post Facto Clause of the United States Constitution fails to state a claim. The United States Constitution “prohibits both federal and state governments from enacting any ‘ex post facto Law.'” Peugh v. United States, 133 S.Ct. 2072, 2081 (2013) (citing Art. I, § 9, cl. 3; Art. I, § 10). “The [Supreme] Court has emphasized [that a] . . . civil regulatory regime will implicate ex post facto concerns only if it can be fairly characterized as punishment.” United States v. Leach, 639 F.3d 769, 772 (7th Cir. 2011) ...


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