United States District Court, S.D. Indiana, Indianapolis Division
JOHN R. MCNAMARA, Plaintiff,
STATE OF INDIANA, Defendant.
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
Jane Magnus-Stinson, Chief Judge
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.
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).
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
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.
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.
case, the complaint makes reference to constitutional
provisions but does not allege a plausible violation of them.
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) ...