Lemay v. NHDOS

2013 DNH 039

• Court: District Court, D. New Hampshire
• Decided: March 20, 2013
• Docket: 11-CV-185-JD
• Status: Published

Opinion

Lemay v . NHDOS 11-CV-185-JD 03/20/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harvey Lemay

v. Civil N o . 11-cv-185-JD Opinion N o . 2013 DNH 039 New Hampshire Department of Safety

O R D E R

Harvey Lemay, proceeding pro se and in forma pauperis,

brought civil rights claims against New Hampshire State Troopers

Rocky, McDonald, and Rowe, alleging that they violated his

Fourteenth Amendment due process rights by characterizing his

convictions in a manner that extended the requirement for him to

register as a sexual offender. The defendants filed a motion for

summary judgment. Lemay’s motion to dismiss the motion for

summary judgment was denied, and he did not file an objection to

the defendants’ motion for summary judgment.

Standard of Review

Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine issue is one that can be resolved in favor

of either party and a material fact is one which has the potential of affecting the outcome of the case.” Gerald v . Univ.

of P.R., --- F.3d ---, 2013 WL 310396, at *6 (1st Cir. Jan. 2 8 ,

2013). In deciding a motion for summary judgment, the court

draws all reasonable factual inferences in favor of the

nonmovant. Kenney v . Floyd, 700 F.3d 6 0 4 , 608 (1st Cir. 2012).

Background1

The magistrate judge construed Lemay’s complaint, as

amended, “to state a plausible claim against Troopers Rocky,

McDonald, and Rowe, for a deprivation of Lemay’s liberty interest

in not being stigmatized in a manner that alters his legal

status, without due process of law.” Report & Recommendation,

doc. n o . 9, at 3 . In support of that claim, Lemay alleged that

he was subject to sexual offender registration because of a

conviction in Massachusetts until October 9, 2009. He further

alleged that Rocky recommended that the charges to which Lemay

pleaded guilty in Massachusetts be upgraded to the crime of

felonious sexual assault on a child of fourteen so that Lemay

would be required to register as a sexual offender for life. He

1 The defendants’ statement of material facts provides a procedural history of the case. Because the defendants did not provide a supported statement of material facts, see LR 7.2(b)(1), Lemay’s failure to respond does not cause him to be deemed to have admitted facts for purposes of summary judgment, see LR 7.2(b)(2).

2 also alleged that McDonald required Lemay to register as a sexual

offender until McDonald retired and that Rowe required him to

register until June 5 , 2011, and arrested him for failing to

register. The magistrate judge noted that Lemay mentioned a

hearing but concluded that there was insufficient information to

know whether he received due process.

Lemay then moved to amend his complaint to add claims

against Denise Perry and Kathy Cliver. In support of his motion,

Lemay filed the report of the hearings examiner at the New

Hampshire Department of Safety, dated September 2 4 , 2009. Based

on the report, the court denied Lemay’s motion to amend as

futile.

The report shows that Lemay requested a hearing to review

the issue of whether he was required to register as a sex

offender for life based on his Massachusetts conviction. A

hearing was held before a hearings examiner, and Lemay appeared

and represented himself. Rocky represented the State of New

Hampshire. Denise Perry, Supervisor of the Sexual Offender

Records for the New Hampshire State Police, and Donna R. Page,

Lemay’s wife, also attended the hearing. The hearings examiner

found that Lemay’s crime of conviction in Massachusetts was

reasonably equivalent to RSA 632-A:3-II, and sustained the

3 decision that Lemay was required to register as a sexual offender

for life.

Discussion

The defendants, Rocky, Rowe, and McDonald, move for summary judgment on the ground that the hearings examiner’s report, which Lemay submitted with his motion to amend, demonstrates that there were no deficiencies in the process afforded him. They contend that for the reasons the motion to amend was denied as futile, they are entitled to summary judgment. Alternatively, the defendants contend that they are entitled to summary judgment because Lemay violated the registration requirement which extended its duration, obviating all of his claimed harm.

A procedural due process claim under the Fourteenth Amendment “requires a showing that the plaintiff was deprived of a protected liberty or property interest without adequate notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Roman-Oliveras v . P.R. Elec. Auth., 655 F.3d 4 3 , 47 (1st Cir. 2011). Other courts have concluded that required registration as a sexual offender can implicate a protected liberty interest. See Brown v . Montoya, 662 F.3d 1152, 1168 (10th Cir. 2011); Meza v . Livingston, 607 F.3d 3 9 2 , 401 (5th Cir. 2010). The process due before imposing a sexual

4 registration requirement depends on the particular situation.

See Meza v . Livingston, 2010 WL 6511727, at *8-*16 (5th Cir. Oct.

1 9 , 2010).

A. Hearing

In this case, Lemay apparently received notice that he was

subject to lifetime registration and requested a hearing. The

hearing was held before a hearings examiner, and Lemay

participated in the hearing. The hearings examiner made findings

and sustained the registration requirement based on his findings.

Lemay does not allege any procedural deficiencies in the

hearing or the process afforded him. Although Lemay disagrees

with Rocky’s interpretation of his offense in Massachusetts, the

hearings examiner heard both sides and found that Rocky’s

interpretation was correct. Therefore, the record shows that

Rocky did not deny Lemay due process.

The bases for Lemay’s claims against McDonald and Rowe are

less clear. Lemay alleges that they required him to register and

that Rowe arrested him for failing to register. Lemay

acknowledges that he was required to register until October 9,

2009, based on the Massachusetts conviction. The lifetime

registration requirement was sustained on September 2 4 , 2009,

before the expiration of the initial registration requirement.

5 Therefore, McDonald’s and Rowe’s actions to enforce the

registration requirement were in accord with the registration

requirements applicable to Lemay and were not due process

violations.

B. Violations

The defendants also argue that Lemay was subject to extended

registration because he violated the initial registration

requirement. As a result, the extension of the requirement, they

contend, did not cause the harm Lemay alleges. The court need

not resolve that issue because Lemay received constitutionally

adequate due process before the registration requirement was

extended to Lemay’s lifetime.

Conclusion For the foregoing reasons, the defendants’ motion for summary judgment (document n o . 33) is granted.

6 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

^OJoseph /Joseph A. DiClerico, Jr. United States District Judge

March 2 0 , 2013 cc: Harvey Lemay, pro se Kevin H . O’Neill, Esquire