Schepers v. Commissioner, Indiana Department of Correction , 691 F.3d 909 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3834
D AVID S CHEPERS, et al.,
Plaintiffs-Appellants,
v.
C OMMISSIONER, INDIANA D EPARTMENT OF C ORRECTION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-1324 TWP-TAB—Tanya Walton Pratt, Judge.
A RGUED M AY 25, 2012—D ECIDED A UGUST 28, 2012
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Indiana, like many states, main-
tains a public database of persons convicted of sex of-
fenses. Its database is called the “Sex and Violent Offender
Registry” and is accessible via the Internet. See Indiana
Sex and Violent Offender Registry, http://www.
icrimewatch.net/indiana.php (last visited August 23, 2012).
People visiting the registry’s website find, on each regis-
trant’s page, a recent photograph, home address, informa-
2 No. 11-3834
tion about the registrant’s height, weight, age, race, and
sex, and information about the particular offenses that
required placement on the registry. Some registrants’
pages may additionally carry the label of “sexually
violent predator,” if they have committed certain serious
offenses or have had multiple previous convictions for
specified sex and violent offenses. See IND. C ODE
§ 35-38-1-7.5 (defining “sexually violent predator”). The
public can search the database by a variety of fields
(such as offender name or county of residence), and can
generate a map showing the location of all registered
offenders living near any address (such as one’s home
or school).
A class of persons required to register brought this
suit against the Indiana Department of Correction
(DOC), alleging that the DOC’s failure to provide any
procedure to correct errors in the registry violates due
process. In response, the DOC created a new policy to
give notice to current prisoners about their pending
registry listings and an opportunity to challenge the
information. The district court granted summary judg-
ment on the ground that the new policy was sufficient
to comply with due process. But the DOC’s new proce-
dures still fail to provide any process at all for an
entire class of registrants—those who are not incarcer-
ated. We thus reverse the district court’s grant of sum-
mary judgment and remand for further proceedings.
I
Indiana’s registry was enacted in 1994; it was modeled
on New Jersey’s “Megan’s Law,” the country’s first sex
No. 11-3834 3
offender registration statute. Many states have created
similar registries since then, spurred no doubt by Con-
gress’s threat of withholding grant money from states
that did not. See generally Wallace v. State, 905 N.E.2d
371, 374 (Ind. 2009) (discussing the history of Indiana’s
registry and the impact of the 1994 Jacob Wetterling
Crimes Against Children and Sexually Violent Offenders
Registration Act). Over time, Indiana’s registry has
greatly expanded in scope, in terms of both who is re-
quired to register and what registration entails.
Today, a conviction for any of 21 different offenses,
including some non-sex offenses such as murder, voluntary
manslaughter, and kidnapping, requires an offender to
be listed on the registry. See IND. C ODE § 11-8-8-5. Place-
ment on the registry comes with a variety of obligations
and restrictions; failure to comply can have criminal
consequences. Among other obligations, a registrant
must periodically report in person to the local law en-
forcement authority—for most, annually, and for
sexually violent predators, every 90 days—to update
contact information and take a new photograph. Id.
§ 11-8-8-14. Failure to do so is a felony. Id. § 11-8-8-17.
Registrants must also allow law enforcement to visit
and verify their addresses (again annually for most
and every 90 days for sexually violent predators). Id.
§ 11-8-8-13. Registrants must carry a valid driver’s
license or state identification card at all times, or risk
prosecution, id. § 11-8-8-15; they are forbidden from
changing their names, id. § 11-8-8-16.
The status of being a “sexually violent predator” carries
with it extra burdens. In addition to their obligation to
4 No. 11-3834
register more frequently, sexually violent predators
are regulated in other ways: they cannot live, work, or
volunteer within 1,000 feet of a school, public park,
or youth program center. To do so is a felony. Id.
§ 35-42-4-10; 35-42-4-11(c); see also Alex Campbell, Motel
Home to City’s Largest Sex Offender Cluster, INDIANAPOLIS
S TAR, Feb. 18, 2012, available at http://blogs.indystar.com/
starwatch/2012/02/18/motel-home-to-citys-largest-sex-
offender-cluster/; Jeff Wiehe, Sex-felon Residency Law
Vexes Everyone, FORT W AYNE J. G AZETTE, Jan. 8, 2012,
available at http://w w w .journalgazette.net/article/
20120108/LOCAL/301089926/-1/LOCAL11. In addition, if
a sexually violent predator plans to be absent from her
home for more than 72 hours, she must inform local law
enforcement in both the county where she lives and the
county she plans to visit of her travel plans. IND. C ODE
§ 11-8-8-18.
II
David Schepers is one of an estimated 24,000
registrants on Indiana’s Sex and Violent Offender Regis-
try. (This number comes from data collected in Feb-
ruary 2010, at which time the registry contained 24,000
registrants, some of whose obligations to keep their data
current had expired, and 11,000 of whom were under a
current obligation to comply with these rules.) Schepers
must register because he was convicted of two
counts of child exploitation in 2006. If one were to visit
Schepers’s registry profile today, she would see those
two counts along with the designation “Offender
No. 11-3834 5
Against Children.” But for some time in the past,
Schepers was erroneously designated as a “Sexually
Violent Predator” and thus was subject to the more bur-
densome requirements and restrictions that apply to
that group. (There is no dispute that Schepers is not
a Sexually Violent Predator under Indiana law.) He
tried to correct this error, but he found that the
DOC provided no official channel or administrative
mechanism allowing him to do so. He turned to
informal channels, telephoning officials in the DOC in
an attempt to get the label removed. When that proved
unsuccessful, he brought suit against the DOC under
42 U.S.C. § 1983 on behalf of a class of registrants,
arguing that the DOC’s failure to provide any mechanism
to correct registry errors violated due process and
seeking injunctive relief to establish such a procedure.
In response to the suit, the DOC instituted a new policy
designed to provide some process to correct registry
errors. It calls that policy the “Sex and Violent Offender
Registry Appeal Process.” Under the new Appeal
Process, the DOC must send prisoners notice (consisting
of two forms—a “notice” and a “specimen”) before they
are released from their institution that explains what
information will be published on the registry. The notice
informs the prisoner that if there are any errors
with his information, he has 20 days to seek review by
submitting an appeal to the director of the Division
of Registration and Victim Services. The person
deciding the appeal (the “Appeal Authority”) can then
request additional information or consult with the pris-
oner. The policy does not require the Appeal Authority
6 No. 11-3834
to hold a hearing, formal or otherwise. After 30 days
have passed, all appeals are “deemed denied.” If an
appeal is not deemed denied, the prisoner will be
notified of a decision to grant an appeal in full or in
part. The prisoner has no right to further review after
an appeals decision. As we indicated earlier, this
Appeal Process applies only to those who are incar-
cerated in DOC facilities; it does not apply to persons
listed on the registry who already have been released
or were never incarcerated in a DOC facility (perhaps
because they received a probationary sentence or they
were convicted in another state).
After enacting this new policy, the DOC moved for
summary judgment on the basis that the policy was
sufficient to meet the requirements of due process. In
addition, it argued that the Due Process Clause did not
apply at all because mistakes in the registry do not
infringe any constitutionally protected liberty interest.
The district court rejected the DOC’s argument that
the Due Process Clause did not apply, holding
that misclassification of registrants does implicate an
offender’s liberty interest and is thus protected by the
Due Process Clause. But the court agreed with the DOC
that its new appeals policy was sufficient to meet the
Clause’s requirements, and granted summary judgment.
Plaintiffs now appeal.
III
We review the grant of a motion for summary judg-
ment de novo, construing all facts and drawing all infer-
No. 11-3834 7
ences in the light most favorable to the non-moving
party (here, Schepers and the plaintiff class). Lagestee-
Mulder, Inc. v. Consolidated Ins. Co., 682 F.3d 1054, 1056
(7th Cir. 2012). Summary judgment is appropriate if
there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Id.We begin by addressing a preliminary argument
raised by the DOC unrelated to the merits of the due
process question. The DOC contends that it cannot be
the entity required to provide process, even if process is
due, because (it says) it is not the entity responsible
for mistakes in the sex offender registry. Put briefly,
the DOC argues that Schepers has sued the wrong de-
fendant. The DOC stresses that it “does not publish
any information on the Internet” and “does not control
the sex offender registry web site.” Instead, those
tasks are currently performed by the Indiana Sheriff’s
Association. But the DOC does not and cannot contest
that, under state law, it is the entity ultimately re-
sponsible for the creation, publication, and maintenance
of the registry. See IND . C ODE § 11-8-2-12.4 (“The depart-
ment shall . . . Maintain the Indiana sex and violent
offender registry.”); id. § 11-8-2-13(b) (listing the DOC’s
registry responsibilities, including requirements that it
“[e]nsure that the Indiana sex and violent offender
registry is updated at least once per day with informa-
tion provided by a local law enforcement authority”
and “[p]ublish the Indiana sex and violent offender
registry on the Internet”). DOC’s argument begins to
unravel when one discovers that the reason why the
Indiana Sheriff’s Association is the entity that publishes
information on the Internet is because the DOC has
8 No. 11-3834
contracted with it to do so. We will accept for
present purposes that state law also gives the sheriffs
some shared responsibility over the registry, see id.
§ 36-2-13-5.5, but this does not diminish the DOC’s own
state-law obligations. (Perhaps the DOC could have
argued that the sheriffs were necessary parties to this
suit. We doubt that this defense would have been suc-
cessful, but no matter: The DOC never raised it and it
has thus been waived. See F ED. R. C IV. P. 12(h)(2); Mucha
v. King, 792 F.2d 602, 613 (7th Cir. 1986).)
Moreover, the facts in the record do not support the
DOC’s attempt to put so much distance between itself
and the day-to-day operation of the registry. It appears
that the DOC does have a direct role to play in some of
the errors that creep into registry listings. The DOC is
the entity that first decides how offenders should be
classified and what information will appear in the regis-
try. It then passes that information on to the
Sheriff’s Association for publication. Clearly, errors can
crop up at any of these stages, but surely one of the
most important points is the stage at which the
DOC makes an initial registry determination. Thus,
under state law and in practice, the DOC has sufficient
responsibility over the registry to be compelled to
provide any additional process that may be required.
IV
A
That brings us to the heart of the due process claim
in this case. Plaintiffs allege that errors in the regis-
No. 11-3834 9
try—such as being mislabeled a sexually violent preda-
tor—infringe on a liberty interest protected by the Due
Process Clause, and thus that the DOC is required to
provide some process to correct those errors. In order
for state action that injures one’s reputation to
implicate the Due Process Clause, the action must also
alter one’s legal status or rights. The Supreme Court
applied this principle to allegations of defamation by
government agents in Paul v. Davis, 424 U.S. 693 (1976),
where it rejected the argument that the injury to
reputation from being included on a list of “active shop-
lifters” implicated a liberty interest for due process pur-
poses. Rather, the Court held, it is the alteration
of legal status, in the sense of a deprivation of a right
previously held under state law, that when “combined
with the injury resulting from the defamation, justif[ies]
the invocation of procedural safeguards.” Id. at 708-09;
see also Kahn v. Bland, 630 F.3d 519, 534 (7th Cir. 2010)
(applying this test). The need to show alteration of
legal status along with some stigmatic or reputation
injury is commonly referred to as the “ ‘stigma plus’ test.”
Kahn, 630 F.3d at 534.
The district court held that the class members meet
both parts of the “stigma plus” test. The DOC does not
challenge that holding on appeal, and so any argument
on this issue is therefore forfeited. It did argue before
the district court, however, that the plaintiffs had failed
to assert a liberty interest; since this case is being re-
manded, we think it prudent to discuss the matter
briefly. The plaintiff class here is complaining about
much more than the kind of simple reputational
10 No. 11-3834
interest asserted by respondent Davis in the Supreme
Court’s case. The Indiana statute deprives members of
the class of a variety of rights and privileges held by
ordinary Indiana citizens, in a manner closely analogous
to the deprivations imposed on parolees or persons on
supervisory release. Citizens do not need to report to
the police periodically, nor is their right to travel condi-
tioned on notifications to the police in both the home
and the destination jurisdiction. Unlike Schepers, who
was forbidden from living within 1,000 feet of a school
or park while he was categorized as a sexually violent
predator, members of the public are free to decide
where they wish to live. These restrictions, in our view,
fit the requirement in Paul v. Davis of an alteration in
legal status that takes the form of a deprivation of
rights under state law.
Although any kind of placement on the sex offender
registry is stigmatizing, we agree with the district court
that erroneous labeling as a sexually violent predator
is “further stigmatizing to [one’s] reputation.” Society’s
abhorrence of sexually violent predators goes above
and beyond that reserved for other sex offenders.
Indiana has taken that position formally through the
additional restrictions in the law on the sexually violent
predator’s actions. Other courts have reached similar
conclusions when considering sex offender registration
systems with “tiered” registration levels. See, e.g., Pasqua
v. Council, 892 A.2d 663, 675 (N.J. 2006), abrogated on
other grounds by Turner v. Rogers, 131 S. Ct. 2507(2011); New York v. David W., 733 N.E.2d 206, 210-11 (N.Y.
2000). We are satisfied that plaintiffs have shown that
No. 11-3834 11
the kind of registry mistakes they have alleged here
implicate a liberty interest protected by the Due
Process Clause.
B
This leaves the question whether Indiana is providing
whatever process is “due.” To answer that question,
we must balance three factors: “[f]irst, the private
interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the
function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.” Mathews v. Eldridge, 424 U.S.
319, 335 (1976).
The DOC argues that the process it currently pro-
vides adequately balances these three factors and
thus passes muster under the Due Process Clause. But
there is a glaring problem with this position: it ignores
the fact that the policy provides no process whatsoever to
an entire class of registrants—those who are not incar-
cerated. If it were impossible to land on the registry
without a prior term of incarceration, then this might be
a different case, at least moving forward; those persons
who had been released before this system was enacted
would still be out of luck. But that is not the way it
works. The record leaves no doubt that not all
registrants are first incarcerated, even though many of
12 No. 11-3834
the crimes triggering registration are quite serious. More-
over, even for people who move from an Indiana
prison onto the registry and thus obtain whatever
benefits DOC’s procedures offer, there is no guarantee
that later mistakes will not be made (perhaps, for
instance, when someone moves from one town to
another, or a sheriff’s department changes computer
systems). A cursory review of some of the pages on
the registry itself reveals that registrants are sometimes
given sentences that are suspended, sentences of proba-
tion, or sentences with terms so low (several months)
that they receive credit for time served and never move
to a DOC facility.
The DOC complains again that it makes no sense for it
to be the entity responsible for furnishing notice and
review to people who are not located in its institu-
tions. That, however, is what the Indiana legislature
decided to do, when it gave DOC control over the
entire registry, including both those who entered it
from prison and those who did not. See IND. C ODE
§ 11-8-2-12.4(5) (requiring the DOC to maintain records
for sex and violent offenders who are not necessarily
incarcerated). It is not our role to question the wisdom
of the state’s choice in this respect. Taking the system as
it is, we conclude that the DOC’s current procedures
are inadequate because they fail to provide any way
for persons not currently incarcerated, including the
lead plaintiff in this case, to correct errors in the registry.
This deficiency alone requires us to reverse the
district court’s grant of summary judgment. We are
No. 11-3834 13
also concerned, however, with the fact that the DOC’s
appeals process never actually requires the DOC to
review a registrant’s complaint. Under the 30-day
“deemed denied” policy, an appeal never has to be con-
sidered before it is rejected. An offender could mail
his appeal to the DOC appeal authority, only to have it
sit on a desk unread. Such an appeal would be
deemed denied after 30 days of inaction. This is not
sufficient to meet the “fundamental requirement of due
process”—“the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’ ” Mathews, 424 U.S.
at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). An appeal process must at the very least
provide for a real opportunity for registrants to bring
errors to the DOC’s attention and, if the arguments
have merit, to have the errors fixed.
The DOC finally argues that it is not under any legal
compulsion to provide process to registrants (even
though it is currently doing so voluntarily for some)
because adequate state judicial remedies exist to
correct any errors. It is true that in some circumstances, a
deprivation of liberty or property might be the result of
a “random and unauthorized” act by a state official,
and the aggrieved person is thus relegated to post-depriva-
tion remedies such as state tort actions. See, e.g., Parratt
v. Taylor, 451 U.S. 527, 543 (1981). But as we have ex-
plained, the Parratt doctrine “rest[s] on the principle
that when a state officer acts in a ‘random and unautho-
rized’ way—by unpredictably departing from state law,
for example—the state has no opportunity to provide a
pre-deprivation hearing and may instead satisfy due
14 No. 11-3834
process by providing an adequate post-deprivation rem-
edy.” Pro’s Sports Bar & Grill, Inc. v. City of Country Club
Hills, 589 F.3d 865, 872 (7th Cir. 2009) (emphasis added).
Where, however, the state has an opportunity to pro-
vide pre-deprivation process because the deprivation is
the “result of some established state procedure,” the
Parratt doctrine does not apply. Logan v. Zimmerman
Brush Co., 455 U.S. 422, 436 (1982). Like the Indiana
Court of Appeals, we see the determination of registry
status as “analogous to an established state procedure,
rather than a random and unauthorized act of a state
official.” Myers v. Coats, 966 N.E.2d 652, 659 (Ind. App. Ct.
2012). The DOC uses established procedures to deter-
mine a person’s registry status, in light of his criminal
history and the registry definitions under state law, and
then it publishes that information on the registry website.
Before publication, an additional procedural step that
provides an opportunity to check the accuracy of that
information can easily be incorporated into the estab-
lished processes, in order to reduce the frequency of
any mistakes that happen to arise.
We agree with the plaintiffs that the state judicial post-
deprivation remedies cited by the DOC are insufficient
to meet the requirements of due process. First, many of
the remedies to which the DOC points are not available
to registrants challenging errors like those at issue here.
See IND. C ODE § 11-8-8-22 (available only to persons
seeking a change in registration status based on changes
in registration laws after June 30, 2007); IND. C ODE § 35-38-
1-7.5(g) (giving state courts discretionary power to
change sexually violent predator status after 10 years).
No. 11-3834 15
And although a writ of mandate under IND. C ODE § 34-27-
3-1 appears to be theoretically available, its usage is
disfavored in Indiana law. See Zimmerman v. Indiana, 750
N.E.2d 337, 340 (Ind. 2001) (Rucker, J., concurring) (“Man-
date is an extraordinary remedy viewed with extreme
disfavor.”). The DOC gives no example of a registrant
using a writ of mandate to challenge a registry listing
in Indiana. Finally, although registrants can, and have,
challenged registry errors in the course of criminal prose-
cutions for failure to comply with registration require-
ments, due process does not require a person to risk
additional criminal conviction as the price of correcting
an erroneous listing, especially where a simple pro-
cedural fix is available much earlier.
At this stage, we decline to outline in any more
detail what sort of process the DOC must enact. Instead
we leave it open for the parties to determine in further
proceedings (or, of course, the court, should the parties
fail to agree on a constitutionally adequate result). We
note in this connection that due process is “flexible and
calls for such procedural protections as the particular
situation demands.” Dupuy v. Samuels, 397 F.3d 493, 504
(7th Cir. 2005) (quoting Mathews, 424 U.S. at 334). It is
possible that a paper review system would suffice,
given the fact that registration requirements are not
discretionary. We also do not prejudge whether or to
what extent additional process would be required at
each re-registration event, assuming that the person’s
registration status has not changed. If there are reasons
to provide additional process at re-registration stages,
or there is no available judicial review of the DOC’s
denial of an appeal, the parties or the court will need
16 No. 11-3834
to consider whether DOC must provide somewhat
more extensive process. See Dupuy, 397 F.3d at 504(“As long as substantial post-deprivation process is
available, the pre-deprivation process . . . need not be
elaborate or extensive. Rather, in many situations, it
should be an initial check against mistaken decisions.”).
We conclude with the observation that providing addi-
tional procedures to correct registry errors may wind up
benefitting the state as well as registrants. Erroneously
labeling an offender a sexually violent predator
imposes unnecessary monitoring costs on state law en-
forcement and reduces the efficacy of the registry in
providing accurate information to the public. See Indiana
Sex Offender Registry Full of Inaccuracies, E VANSVILLE
C OURIER & P RESS, Apr. 21, 2012, available at http://www.
courierpress.com/news/2012/apr/21/indiana-sex-offender-
registry-full-inaccuracies/ (quoting the “director of legisla-
tive affairs at the National Center for Missing & Exploited
Children” calling the errors “troubling” because “[t]he
value of the public registry as a child protection tool is that
the information is accurate”). Reducing these errors is in
the interest of the state as well as the plaintiffs.
***
On remand, we encourage the parties to work together
to come to an agreement that fits within the boundaries
outlined above. As it stands, the DOC’s process is con-
stitutionally insufficient. We thus R EVERSE the district
court’s grant of summary judgment and R EMAND for
further proceedings consistent with this opinion.
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