BULLES v. HERSHMAN et al, No. 2:2007cv02889 - Document 34 (E.D. Pa. 2009)
Court Description: MEMORANDUM AND OPINION THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS GRANTED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED. JUDGMENT IS ENTERED IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF. THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 2/19/09. 2/19/09 ENTERED AND COPIES E-MAILED.(ah)
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TN THE UNITED STATES mSTRlCT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DENNIS JAMES BULLES CIVIL ACTION NO. 07-2889 v. LOUIS HERSHMAN, et.1. ORDER AND NOW, lhb t9th "hty of February, 2009, it is hereby ORDERED Defendants' Motion for Summary Judgment (Doc,ument 25) is GRANTED and Plaintiff's Motion lvr Summary Judgment (Document 26) is DENiED. Judgment is enLered in favor of Defemlanls Louis Hershman, David lIowells, Edwin Pawlowski. and the City of Allentown, and against Plaintiff Dennis James Bulli::s. The Clerk of Cuurt is directed to mark the above-captioned case CLOSED. BY THE COURT: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLV ANIA DENNIS JAMES BULLES v. CIVIL ACTION NO. 07-2889 LOUIS HERSHMAN. et al. MEMORANDUM AND ORDER Juan R. Sanchez, J. Dennis James February 19, 200 1) Dulle~, a registered sex offender in Pennsylvania, asks this Court to declare um:unstitutional nnd permanently enjoin en10rcement of 011 Allentown. Penns)'l vania ordiunnce which limits the areas in which unregistered sex offenders may reside. I Because Bulles is not a member of the alTcctcd group, he does not have standing to ch~lIenge the ordinance. The Court therefore will gmnt snmmary judgment in tHvor ofDefendants - former Allentown City Conncilman Louis Hershman, Councilman David Howells, Mayor Edwin Pawluwski, and the City of Allentown. FACTS In 1997, Bulles pled guilty to statutory rape and incest in which the victim was a I3-year-old girl. As a result of his cunvictiun, Hulles was required to register as a sex offender pursuant to Megan's Law, 42 Pa. C.S. 9795. 2 In September2UU4, Bulles wa.. . paroled, and he cumplied with the registralion requirement.. . of Megan's Law. In December 2004, Dulles muved lo Allentovrn, \I,'here lHullcs brings his constitutional claims mtdcr 42 U.S.C. § 1983. :'Failurc to comply with the registration requirements of Megan's Law is a criminalllffensc: under I8 Po. C.S. § 4915. hc lived at Oxford House, a transitional living facility for parolees. In July 2005, BulIes was incarcerated for a parole ...·iulatiun.:i On Dcccmber 22, 2005, Allentown adupted Ordinance No. 14347, entitled "Arlicle 733 Sexual Offenders and Sexual Predators Residence Prohibition" (Ordinance). Allentown, Pa., Gen. Offenses Code § 733. The Ordinance provides: It is unlawful for any person who has been convicted uf a violation of Section 9795.1 ofMegan's Law II, 42 P.A.C.S, § 9795.1 (relating Lo registration), in which the victim uf the offense was Jess than sixteen (16) years of age, to establish a permanent ur temporary residence within twu thousand five hundred (2,500') feet of any sehool, childcare facility, park or playgruund. 4 § 733.1. Section Two of the Ordinance states: "City Council shall supply or cause to be supplied to lhe Pennsylvania Board of Probation and Parole a duly certified copy of this Ordinance to inform lhe stale and eOULlty prison and probation and parole personnel about the limitations on residence set f01th in thiS Ordinance." § 733.99. When asked at deposition what the eouncil was thinking when it adopted the Ordinance. a co-sponsor of the Onlinancc, fanner Councilman Hershman, stated, "as a councilman you're always worried about public safety lor the community yuu serve.... We fell we had our share in AHentown hased on Megan's Law where they have to register and we don't want - we didn't want any more in Allentown because of our concern for puhlic safety." Hershman Dep. lolL 4~S. Hershman Inter stated he understood the Ordinance to "kick in" only if a sex offender failed to register pursuant to Megan's Law. Jd. at 11. Dulles was re-paroled in August 2006; however, he remained jmprisoned until Ol:lobcr 2007 lBulles violated his parole by leaving an area without obtaining his parole officer's permission. ~The Ordinance referenees Megan's Law, whicJl requires certain sex offenders to register with [he Pennsylvania State Police. 42 Pa. C.S. 9 9795.1. Violators ofthe Ordinance are suhject (0 a maximum fine of$500. maximum 60-day period of imprisonment, and/or maximum 90 days of community service. Allentown, Pa., Gen. Offenses Code § 733.99. 2 bel:ause he did not have an approved place to live. Rulles submitted a series of home plans to the Pennsylvania Board of Probation and Parole (the Board). \ The Board refused to approve three home plans in which Huiles listed his resideuce at Oxford House. Dulles testified that, after his third home plan was rejected, parole officer Gerald Arnoldini told him. "essentially Allentown is cIused to sex offenders."6 Bulles Dcp. at 13. Rulles also testilied Arnoldini told him to slop naming Allentown as his prospeclive residence in his home plans because the division ufthe Board which investigates home plans was unwilling to (.~unsider approving home plans which named Allentowu. ld at 13-14. The Board eventually approved Bu1l6's home plan with a residence in Reading, Pennsylvania. Bulks registered in ae(.~ordanee with Megan's Law upon his re-parole. DISCllSSION Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a maller oflaw," Fed. R. Civ. P. 56(e). "When confronted with cross-motions for ~ummary judgment, the court must rule on each party's motion un all indi vidual and separate hasis, delennining, for each side, whether a judgment may be entered in accordance with the summary judgment standard." Schlegel v. Life In.\'. Co. oIN. Am., 269 F. Supp. 2d 612, 615 n.l (E.D. Pa. 2003) (citation and internal quotation marks omitted). Defendants argue Bullei'; has no stllnding to challenge the Ordinance because he canuot show ~Bulles testified that. once approved for parole, prisoners are required to create horne plans, which arc signed by an outside parly - in Bulles's casc, a prospective employer - and signed by the prisoncr. Bulles Dep. at 13, The prisoner then submits the plan to a division of the Board whil.:h investigates the plan's suitability. ld ~BlIlles testified he also read a newspaper article in the Morning Call whit;h suggested the Ordinance prohibited sex offenders from residing In Allentown, Bulks Oep. at IS. ] its enforcement caused him any harm nor can he show prohibition orits enforcement would redress his alll:ged harm. In the alTernative, Defendants argue Bulles 's § 1983 claim fails as a matter of law. The Court will address Defcndanl~' standing firgument first, and then address the constitutional issues in connection with analysis ofBulles's mOlion for summary judgment. "The 'ineducihle con~lilutional minimum' of standing under Article 1lI requires a plnintiff to estahlish three elemenls: an injury infaet, i.e., an invasion ora legally protected interest that is actual or imminent. and concrete and particularized, as l.,;ontrasted with a conjectural or hYPolhetieal injury; a ('(Iusal connection hdween the injury and the conduct complained of; and substantial likelihood of remedy - rather than mere speculation - that the requested relief will remedy the alleged injury in fact." Penn Prison Soc 'y 1'. Carles, 508 F.3d 156, 160-61 (3d Cir. 2007) (quoting Lujan v Defimders ofWlldl!!e, 504 U-S. 555, 560 (1992» (emphasis in original). Elich element of standing is "an indispensable part of the plaintiffs case, [and I each of these elements musl be supporled in the same way as any other maLLer on whieh the plaintiff hears the burden of proof, i.e., with the manner and degree ofevidcnee required at the successive stages of the litigation." Lujan. 504 U.S. at 561. Al Lhe summary judgment stage, "lhe plaintiff can no longer rest on mere a1Jegations, but mLt~t ~et forth by affidavit or other evidence specific facts" to establish standing. lei. (quoting Fed. R. Civ. P, 56(e)) (intemal quotation marks omitted). Assuming Bulles can show he hns suffered a cognizable injury-in-faet, Bulles cannot show the remaining elements of standing: eausalion and rcdressahility. The causation elemcnl requires "a causal connection between the injury and the conducL complained or - Lhe injury hfls to he fairly traceable to the ehallenged action of the defendant, and not the result of the independent <1t.:tion of SOllle third party not before the 4 COl1rt." J.ujan, 504 U.S. at 560 l!:iLaLioIl, alterations, and intcrnal 4uotation marks omitted). On its face, the Ordinancc applies only to sex offenders who have been convicted of violating the registration requiremc:nts of Megan's Law. Allentown, Pa" <Jen. Offenses Code § 733.2. Bulles each time complied with Megan's Law upon his release from prison, and therefore the Ordinance docs not restrict his choice of residenee within Allentown. Rulles also tails Lo identify any action taken by Defendants that resulled in his inability to secure a residence in Allentown. Mayor Pawlowski stated in an aHidavit: ""TlIe City of Allentown has nol taken, and does not intend to take, filly official action La prohibit Mr. Bulles from living at any location in the City of Allentown as a result or the residency restrictions contained in Ordinanee 14347," Pawlowski Aff. at ~ 5. This proclamation of prosecutorial intent might be insulIieknt if the Ordinance's terms applied to Bulles. Cf Conehatta v. Miller, 458 f.3d 258, 265 (3d Cir. 2006) ("[T]he mere facL that an agency does not currently intend to apply a statute in an unconstitutional manner CUJUlot have the effect of an explicit limiting construction."). In this case, however, because Bulles registered pursuant to Megan's Law, the Ordimmee does not apply to him and city officials therefore have no authority to use it to prevent Bulles from residing anywhere in Allentown. Bulles '5 inability to reside in Allentown Was "the result of the independent action of SOIne third party not before the court." Lujan, 504 U.S. aL 560 (alterations, citation, amI internal quotation marks omitted). It is undisputed the Board had complete authority over whether Bulles's pruPO~l~J home plans were accepted or rejected. Bulles does not offer any evidence which suggests any Defendant in this case eiLher prevented Bulles from residing in Allentown upon bis release or had 5 the power to do SO.7 Similarly. HuIles cnnnot show the relief he requests from this Court will redress the harm alleged. The Doard has sole authority to npprove Dulles's place ofrcsidence. Even if this Court were to declare thc Ordinance unconstitutional and cnjoin Defendnnts from enforcing it, thc Hoard would retain absolute discretion lo continue prohibiting Dulles from living in Allentown. Such judicial action mighl prompt the Board to change its position on the matter, but such a result is merely speculativc and therefore insufficient to establish rcdressobility for standing purposes. See Lujan, 504 U.S. at 561 ("[1]1 must be likely, ,tS opposed to merely speculative. that Lhc injury will be redressed by a favorable decision.") (citation and internal quotation mnrks omitted). This Court concludes Dulles is unabk~ to satisfy the camation and redressability elements of stnnding and therefore will grant Defendants' motion for summary judgment. In his motion for summaryjudgmenl, Bu/lcs mgues the Ordinancc violaLes his constitutional rights in four ways: the Ordinance constitutes 0 bill of attainder; the Ordinance constitutes an ex post facto law; the Ordinance violates the Due Process Clause; and the Ordinance violates the Equal 7The Court rejects Bulles's asscrtion that, any time an action of a municipality bas an "exclusionary effect," an excluded individual has standing to (,:hallengc such action. First, the required ekmt~nts of standing arc well-settled law. Fair Hou;sing Council ofSuburhan Phila. v. A/ain Line Times, 141 F.3d 439, 441 (3d Cir. 1998). Second. the ca"es cited by I3ulles in support of his novel standing argumcnt ar~ disLinguishable from the instant case in at least one important respect - in each casc, the challenged provision applied on its face to the plaintiff. See Conehatta v. Miller, 458 F.3d 258. 265 Od Cil. 2006) (bm OWner and cmployec dancers challenged statute prohibiting immoral, improper, or Icwd entertainment aL any business possessing a liquor lit·.ense); Belitzkus v. P;::zigrilli, 343 F.3d 632 (3d Cir. 2003) (indigenl candidate for puhlic office J.:hallengcd statnte requiring payment ofa fee in order to have one's nnme placed on the ballot); Newark Branch. NAACP v. Town of Harrison, 940 f.2d 792 (3d Cir. 1991) (organization whose mcmbers sought employment ,.. . ilh municipal government but were rejected due to non-residcnt status challenged municipal ordinance which restrictcd employment to town residents); Horm·tine v. Twp. ofA/orrison, 263 F. Supp. 2d 887 (D.N.J. 2003) (candidate for valedictorian challenged proposed amendmcnl to school nIles governing valedictorian award). 6 Protection Clause. Bulles illso asserts the Ordinance violates Pennsylvania's regulatory scheme governing p~rule. The Court bas already found Bulles ha~ no standing to bring these claims. Altermtively, Rul1es's summary judgment motiun fails because he has not presented suffieient evidence to shuw there is no issue of material fact and he is entitled to judgment as a mallcr of law. See Schlegel, 269 F. Supp. 2d at 615 n.l ("When confronLed with cross-motions for summary judgment, the court must rule on each party's motion on an individual and separate basis, determining, for ea<.:h side, whether a judgment may be entered in accordance with the summnry judgment standmd.") (citation and inlernal quotation marks omitted). The Constitution prohibits legislative bodies from enacting bills of attainder or ex post facto laws. U.S. Const. art. l, § 9, cl. 3. "Under the Ex Post Pacto Clause, the government may not apply a law retroaclivc!y rhat 'inflicts a greater punishment, than the Law annexed [0 the crime, when c,ommitted." Artway v. Att'y Gen, ojN.J., 81 F.3d 1215, 1247 (3J Cir. 1(96) (quoting Calder v. naIl, 3 U.S. (3 Dall.) 186, 390 (1798)). "Under the Bill of Att:'linder Clause, legislatures are forbidden to engage in 'legislative acts, no maller what their fonn, thal apply either to named individuals or to easily ascertainable members ofa group in such a way as to inflict punishment on them without a juJicial trial.'" ld (quQliug Unilt'd StateJ' (alteration omitted). ~', Brown. 381 U.S. 437. 448-49 (1965) Both prohibitions "only apply to those situations: in which the injury complained of constitutes an imposition or exaction of a 'criminal' rather than a 'civil' nalure." N~vrie v. Comm'r, N.J. Dep '[ ojCorredions, 267 F.Jd 251,255 (3d Cir. 2001) (quoting Rex Trailer Co. v. United States, 350 U.S. 118, 15·1 (1956)). 7 1n determining whcther lhc Ordinance imposes a civil reslraint or fl criminal penalty, the Court must lirsl consider the Allentown council's intcnt in enacting the Ordinance. See Smith v. Due, 538 U.S. 84,92 (2003). The Supreme Court has instructed: l1'1hc intention of the legislature was to impose punishment, that ends thc inquiry. If, !lowever, the intention was to cnact a regulatory scheme that is civil and nonpunitive, we must furlhcr cxamine whether the statutory seheme is so punitive either in purpose or elTect as to negate the State's intention to deem it civil. Deci:1use we ordinarily defer Lo the legislature's stated intent, only the dearest proof will suftice to override legislative intent and transform what has been denominated acivil remedy into a criminal penalty. ld. (alterations, citations, [IUd internal quotaLiou marks omitted). As an initial maUer, Rulles has offered no evidence the Allenlown couneil intended to punish any sex offender by enacting the Ordinance. Moreovcr. the Ordinance contains asecLion which explieitly states the legislative intent: It is the inlent of this Section to serve the Cily of AHentown's compelling intercst to promoLe, protcct [Hld improve the health, safcty and welfare ofthe citizens ofthe City by ereating areas around locations where children regularly congregate in eoncentrated numbers wherein ecrfnin sexual offenders and sexun[ predators are prohibited from establishing temporary or permanenL residcnee. Allentown, Pa., Gen. Offenses Code § 733.1. This slatcment is strong evidence the Allentown council intended the Ordinancc to be a civil regulation. See Smith. 538 U.S. at 93-94 ("[W]here a legislative resLrietion is an incident of the Stale's power to protect the health and safety of its citizens, it will he considered as evidencing an intent to exercise Lhat regulatory power, and not a purpose to add 10 the pllnishment.") (eitations and internal quotation marks omiLLed). The Court concludes the Allentov,m eouncil did not intend the Ordinance to be a criminal penalty. The Courl must next consider whether the Ordimmce "was nonetheless sO punitive in effect as to negale thc legislature's intent to creale a civil, non-punitive regulatory schclne." Doe v. Ali/fer, 8 405 F.3d 700, 719 (8th Cit". 2005); see alsoSmilh, 538 U.S. at 97. The following factor~ guide the Court's analy:)is: "whether, in its necessary operation, the regulatory s(,:hemc: has been regarded in our history and traditions as a punishment; imposes an ailirrnative disahility or restraint; promotes the traditional aims or punisJunent; has a rational connection to a nonpunitivc purpose; or is excessive with respect to this purpose," Smith, 53~ U.S. at 97. first, the challenged prohibition traditionally has not been regarded as n punishment As an initial matter, residency restri(,.,tions for sex offenders have little historical meaning because they are a relatively recent phenomenon. J'.Iiller, 405 f,3d at 720; see also Doe v. Baker, No. U5-2265, 2006 WI. 905368, al *3 (N.D. Ga. Apr. 5,2006). Bulles a.rgues the Ordinance constitutes a banishment, which traditionally has been regarded as n punishmenL. Smith, 538 U.S. at 98, The analogy between hanishment and the Ordinance's residency restriction fails, however, because banished offenders were expelled entirely from their communities, see {d., and the Ordinance merely prohibits certain sex offenders from re:)iding nem places where childrcn congregate; it does not "prohibit them from accessing areas near $(,:hools or child care fw..:ililies for employment, to conduct commercial transactions, or lor any purpose other than establishing a residence." Miller, 405 F.3d at 719; see also Baker, 2006 WL 905368, al *3. Second, the Ordinam~e's residency re.'itriction is not such a severe disability or restraint as to constitute a (,,'riminal penalty. The paradigmatic atftnnative disabililY or restraint is incarceration. 5,'mith. 538 U.S. at 100. I.e.'iser impositions, e.g, probation and supervised release, also have been considcrc.d disabilities and restraints. Jd. at lOt. The Ordinance's requirements constitute an fltftrmative disability and restraint in that certain scx offenders may not live where they please. Thc Ordinance docs not cOllf.ititute such a scvere restraint, howevcr, to amount to a criminal penalty. 9 Legislatures may adopt regulations imposing signilk(lnl restraints to protect community health and safety. See, e.g., Kansas v. H(mdrir..:h', 521 U.S. 346 (1997) (holding involuntary commitment of mentally ill, recidivist sex offenders was non-punitive measure). Third, the Ordinance's prohihition may have ~ome delerrent and retributive effects, however. any such promotion of the traditional (lims of punisluuent is incidental and consistenl with lhc Ordinance's regulatory purpose of preventing harm to children. See Smith, 538 U.S. at 102 ("Any number of govemmenlal programs might deter crime without impo~ing punishment. 'To hold that the mere presence ofadeterrent purpose renders such sanctions 'criminal' would severely undermine the Governmenl's ability to engage in effective regulation."') (quoting H"dson v. United States. 522 U.S. 93, 105 (1997» (alteration omilled). Pinally. the Ordinanee has a rational eonnel:.tion to a non-punitive purpose and is not exceSSlve. The rational-connection element is a "most significant factor" III the Court's detennination the Ordinance is not a criminal penalty. See Smith, 538 U.S. all 02. Bulles argues the Ordinance i::; not rationally connected to its stated purpo~e, <.:iling social scientifie research which suggests sex offender residency restrictions are iueffective. Rational basis review, however, is a "very dderenlial standard." Doe v. Penn. Ed. 0.[ Probation & Purole. 513 F.3d 95, 115 (3d Cir. 2008) (l'itation and internal quotation marks omitted). "A statute is not deemed punitive simply because it lacks a close orpertecllit with the non.punitive aim it seeks to advam.:e." Smith, 538 U.S. at 102. The que~tion before the Court is not "whether the legi~lalure has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory mean~ chosen are reasonahie in light of the nonpunitivc objective." Smith, 538 U.S. at 105. In this case, the Allentown council eoucluded preventing sex offenders who failed to register as such from 10 residing ne",r places where children congregate could prevent reeidivist assaults on children. Even if the Ordinance is not the most effective means to protcct the community, it is rationally connected LO this goal and not excessive in light of thlS purpose. Bulles also fails to show he is entitled to judgment as a matterofl",w with respect to his Due Process and Equal Protel.:lion claims. Borh challenges require Lhe Court to conduct rational b",~is review. See Cify u.fNew Orleans v. Dukes. 427 U.S. 297, 303 (1976) ("Unless a classification trammcls fundamental personal right~ or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions prcsume the constitutionality ofthe statutory discriminations "'nd require only that the classification challenged bc rationally related to a legitimatc state interest."); Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir. 1997) CL WJhere fundamental rights or interests are noL implicated or infringed, state statutes are reviewed under the rational basis lest. ... Under rational basis review, a statute withstands a substantive due process challenge if the state identifies a legitimllte state interest th"'l the legislature could rationally conclude was served by the statute.").~ The Court has already concluded the Ordinance is rationally related to the Allentown council's goal ofprotecling children. Bullcs asserts a single legal claim in this suit: violEltion of § 1983. Dulles's final argument in support of this claim is the Ordinance is preempted by Pennsylvania's parole regulations. "To "Bulles usscrts individuals have a t'undamcntul right to tmvel, and concomitant right to select a residenlial location, and the Ordin"'nce infringes upon this right. There is a fundamental right to interstate travel, but such a right is not at issue in this case. United Slates v. Guest, 383 U.S. 745, 757 (1966). The Ordinance does no! affect the right of free interstate travel, nor does it aiTect the right of free intrastaLe lravel, because it only restricts offenders' choice of residence, not oi1endcrs' free mLPit:menL See Doe v. Miller, 405 FJd 700, 712-13 (8th Cir. 2005). Furthennure, there is no rund~mental right to live where one wants to live. See id. at 714. II state a c1nim under Section 1983, a plaintitf must allege violntion of right:,; secured by the Constitution and laws of lhe UniLed SLates, and must show that a person acting under color of stale law committed the alleged deprLvation." West v. Atkins, 487 U.S. 42, 48 (1988). Bulles's elaim the Ordinance is preempted by the Board's parole regulations is nol a cognizable § 1983 cJnim becau::.e it presents a question solely of Pennsylvania law. Dulles has failed to shuw there is no genuine issue of material fact such that he is entitled Lu judgment as a maller ofIaw. Accordingly, the Court will deny his motion for summary judgment. An appropriate urder follows. 12
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