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Grad v. Stenehjem

United States District Court, D. North Dakota

August 4, 2016

Kevin Louis Grad, Plaintiff,
v.
Wayne Stenehjem, Attorney General, in his individual capacity, and Jonathan Byers, Assistant Attorney General, in his individual capacity, Defendants.

          Kevin Louis Grad, Plaintiff, Pro Se.

          REPORT AND RECOMMENDATION

          ALICE R. SENECHAL, Magistrate Judge.

         Plaintiff Kevin Louis Grad (Grad), an inmate who is proceeding pro se and in forma pauperis, filed a complaint alleging violations of constitutional rights under 42 U.S.C. § 1983. Under 28 U.S.C. § 1915A, the court must conduct an initial screening of any prisoner's complaint seeking redress from a governmental entity or its employees. If the court determines that the action is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief, the court must dismiss the complaint.

         Facts

         Grad alleges that North Dakota Attorney General Wayne Stenehjem (Stenehjem) and Assistant Attorney General Jonathan Byers (Byers) headed a committee[1] that required Grad to register as a sexual offender for a misdemeanor conviction-indecent exposure. (Doc. #6, p. 4). Grad further alleges that the state statute under which he was convicted did not require registration as a sexual offender. Id . Grad states that "years later, " the state district court terminated the erroneous registration requirement. Id.

         Grad contends that, because of the registration requirement, he was denied work, housing, educational, and treatment opportunities. Id. at 4-5. He states that he was prohibited from being around minors, including family members, and that he was subjected to "bullying, torment[, ] and harassment." Id. at 5. He contends that he is unable to "rid" himself "of the stigma, " which has caused him to suffer from mental health and addiction issues. Id . Grad requests monetary damages from the defendants in their individual capacities.

         Law and Discussion

         To state a cognizable claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 8(a)(2), as interpreted by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), and their progeny. To meet the Twombly/Iqbal standard, a complaint must present a "plausible" claim, and must give the defendants fair notice of the claim and the grounds upon which it rests. E.g., Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). When the factual content of a complaint allows the court to reasonably infer that a defendant is liable for the alleged misconduct, the complaint has stated a facially plausible claim. Iqbal, 556 U.S. at 678. In other words, the complaint must "possess enough heft to sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)).

         While facts alleged in the complaint are to be accepted as true, conclusory allegations of the elements of a cause of action are insufficient to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678. In construing a prisoner's pro se complaint, a court is to take a liberal approach and is to hold a pro se litigant to a less stringent pleading standard than would be required of attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Grad states that he was convicted of indecent exposure pursuant to North Dakota Century Code section 12.1-20-12.1(1)(a), which is a class A misdemeanor. (Doc. #6, p. 4). Under state law, an individual who has pled guilty to or has been found guilty of indecent exposure is considered a "sexual offender, " see N.D. Cent. Code § 12.1-32-15(1)(f), and a sexual offender who has pled guilty to or has been found guilty of misdemeanor indecent exposure is required to register, see id. at § 12.1-32-15(2)(b). The court may, however, deviate from the registration requirement under certain circumstances. Id . If Grad's sole contention were that the state statute did not require him to register as a sexual offender, then his claim would be without merit. See State v. Glaser, 858 N.W.2d 920, 925 (N.D. 2015) (finding that the court did not abuse its discretion in requiring the defendant to register as a sexual offender after he was convicted of misdemeanor indecent exposure).

         Grad appears to allege, however, that SORAC, rather than the court, required him to register as a sexual offender. The court's search of the state court records[2] reveals that on June 19, 2008, Grad pled guilty to indecent exposure and he was sentenced to thirty days' imprisonment.[3] State v. Grad, Morton County Case No. 30-08-K-00536.

         More than five years later, on July 11, 2013, Grad was charged with failure to register as a sexual offender. State v. Grad, Cass County Case No. 09-2013-CR-02350. The Information alleged that between May 21, 2013, and June 10, 2013, Grad failed to register a change in employment as is required of registered sexual offenders. Id. at Doc. ID# 1. The affidavit of probable cause in support of the Information stated that an officer, who was investigating Grad in connection with a reported theft, discovered that Grad was no longer working at the place of employment Grad had previously registered, and that Grad had not updated his registration to indicate that he had lost that job. Id. at Doc. ID# 2.

         On December 17, 2013, a Morton County Assistant State's Attorney and Grad's ounsel filed a stipulation in the indecent exposure case. State v. Grad, Morton County Case No. 30-08-K-00536, Doc. ID# 11. The stipulation stated that:

It was contemplated by the parties and the Defendant understood that he would not be required to register as a sexual offender. The parties agree that the provisions of N.D.C.C. §12.1-32-15(2)(b) apply to this case; and that it should have been stated on the record that the Court does or did find that the Court should deviate from requiring the Defendant to register in that "the Court finds the individual is no more that three years older than the victim if the victim is a minor, the offender has not previously been convicted as a sexual offender or of a ...

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