United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING CASE AND DIRECTING ENTRY OF FINAL
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff's Opposition to
the Entry Dismissing Complaint [Dkt. 12], which is treated as
a Motion. Plaintiff Joshua King (“King”) filed
this civil rights action under 42 U.S.C. § 1983 against
the State of Indiana, seeking an order purging his name and
personal information from the sex offender registry and not
requiring him to register as a sexually violent predator
(“SVP”). On December 9, 2016, the Court screened
the Complaint in this action and dismissed King's claims.
[Dkt. 7.] In particular, the Court dismissed King's
federal claims for failure to state a claim upon which relief
could be granted and dismissed the state claims for lack of
jurisdiction. Id. King was given an opportunity to
show cause why this action should not be dismissed. Although
he has attempted to do so, King has failed to show why this
case should not be dismissed. For the reasons stated below,
the Motion in Opposition is denied.
response to the Court's show cause order focuses on his
claims under the Ex Post Facto Clause and the Due
Process Clause. As to the ex post facto claim, the
Court explained in its screening Entry that King's
allegations regarding Indiana's Sexually Violent Predator
regime do not show that the changes created by the law are
penal in nature, which is required to show an ex post
facto violation. “[W]hether a comprehensive
registration regime targeting only sex offenders is penal . .
. is not an open question, ” given that the Supreme
Court in Smith v. Doe, 538 U.S. 84 (2003), held that
“an Alaska sex offender registration and notification
statute posed no ex post facto violation because it
was a civil, rather than penal, statute.” United
States v. Leach, 639 F.3d 769, 772 (7th Cir. 2011).
Moreover, the Seventh Circuit has held that the federal
registration statute, the Sex Offender Registration and
Notification Act, “is not an ex post facto
law.” Id. King's further discussion of
Indiana's Sexually Violent Predator laws in his response
fail to undermine this established law. Accordingly, his
federal ex post facto claim was properly dismissed
in the Court's screening Entry.
his Due Process claim, King asserts that prior to May 9,
2007, Indiana Code § 35-38-1-7.5 required the Court to
determine whether the criminal defendant is a Sexually
Violent Predator after consulting with two board certified
psychologists or psychiatrists who have expertise in criminal
behavior disorders. He argues that the current rule does not
provide this same protection and that he should not be
considered a Sexually Violent Predator without examination by
an expert in the field of mental abnormalities. King argues
that anything less violates his due process rights. He is
version of Indiana Code § 35-38-1-7.5, effective through
May 9, 2007, defined “sexually violent predator”
as a person who suffers from a mental abnormality or
personality disorder that makes the individual likely to
repeatedly engage in certain offenses. The statute stated
that a person who is at least eighteen years of age who
committed one (or more) of the listed offenses is a sexually
violent predator. At the sentencing hearing, the court was to
determine whether the person is a sexually violent predator
based on whether he committed a relevant offense. If the
court did not find the person to be a sexually violent
predator based on the offense committed, the court was
required to consult with a board of experts consisting of two
board certified psychologists or psychiatrists who have
expertise in criminal behavioral disorders to determine if
the person is a sexually violent predator under the statute.
current version of Indiana Code § 35-38-1-7.5 provides
in relevant part that unless certain exceptions are met, a
person released from incarceration, secure detention,
probation, or parole for the offense after June 30, 1994, is
a sexually violent predator by operation of law if: 1) the
offense committed by a person at least 18 years of age is one
of the listed sex offenses, or 2) if the person commits a sex
offense (as defined in Indiana Code § 11-8-8-5.2) while
having a previous unrelated conviction for a sex offense for
which the person is required to register as a sex or violent
offender under Indiana Code § 11-8-8.
version of Indiana Code § 35-38-1-7.5 creates an
entitlement to an examination by an expert in the field of
mental abnormalities before being labeled a Sexually Violent
Predator when one of the enumerated offenses is committed.
The earlier version of the statute created another pathway
for the court to impose the Sexually Violent Predator label.
There is no plausible basis to conclude that King has
suffered any harm from the change in this law or that he was
not given all of the process to which he was entitled before
being labeled a Sexually Violent Predator. In sum, this
action must be dismissed pursuant to 28 U.S.C. § 1915A
for the reasons set forth in the Court's Screening Entry.
Accordingly, King's Motion in Opposition to Entry
Dismissing Complaint [Dkt. 12] is DENIED.
judgment consistent with this ...