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Vandivere v. Lynch

United States District Court, District of Columbia

August 22, 2017

JAMES DOW VANDIVERE, et al., Plaintiffs,
v.
LORETTA LYNCH, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge

         This matter is before the Court on Defendants' Motion to Dismiss, ECF No. 12. For the reasons discussed below, the Court grants the motion.

         I. BACKGROUND

         The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 302, 120 Stat. 587, 620-22 (“the Act”), allows for the civil commitment of a sexually dangerous person for treatment after completion of his term of incarceration in the custody of the Federal Bureau of Prisons (“BOP”):

In relation to a person who is in the custody of the [BOP], or who has been committed to the custody of the Attorney General pursuant to [18 U.S.C. §] 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the [BOP] may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to [§] 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.

18 U.S.C. § 4248(a) (emphasis added). For purposes of the Act, the term ‘“sexually dangerous person' means a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others[.]” Id. § 4247(a)(5). A person is “sexually dangerous to others” if he “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” Id. § 4247(a)(6).

         “[T]he court may order that a psychiatric or psychological examination of the [person] be conducted, ” id. § 4248(b), prior to a mandatory hearing, see id. §§ 4247(d), 4248(a). The person “shall be represented by counsel, ” and “shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.” Id. § 4247(d).

         After the hearing, if “the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General.” Id. § 4248(d). Periodic reports to the court are required, see id. § 4247(e), and “counsel for the person or his legal guardian may, at any time during such person's commitment, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged.” id. § 4247(h). The court must order the person's immediate release “[i]f, after the hearing, [it] finds by a preponderance of the evidence that the person[] . . . will not be sexually dangerous to others if released unconditionally.” Id. § 4248(e)(1). Alternatively, if the person “will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, ” the court must:

(A) order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility in which he is committed, and that has been found by the court to be appropriate; and
(B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

Id. § 4248(e)(2). The Act expressly preserves the person's right to petition for a writ of habeas corpus to challenge the legality of his detention. Id. § 4247(g).

         Plaintiffs James Dow Vandivere and Jon Karl Thompson bring this action under Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against current and former Attorneys General, current and former BOP Directors, and the members of the Sex Offender Certification Review Panel. See Compl. at 1 (caption); see id. ¶ 4a. The Complaint alleges that each Defendant in his or her individual capacity is responsible for Plaintiffs' “unlawful continued [d]etention . . . beyond the scheduled release after completion of their . . . prison sentence[s] from [c]riminal [c]onvictions[.]” Id. ¶ 1. Defendants allegedly cause Plaintiffs to suffer “additional punishment . . . other than penal, without the benefit of a judicial process[, ]” id. ¶ 2 (emphasis in original), and without “all other constitutional protections that all citizens of the United States are given and enjoy, ” id. ¶ 7; see Pls.' Opp'n to Defs. Reply of 12/22/16 (“Pls.' Surreply”) at 2-3. Plaintiffs further contend that no Defendant had standing to (1) initiate civil commitment proceedings under § 4248 by certifying that Plaintiffs are sexually dangerous to others, (2) cause the government to file petitions in the United States District Court for the Eastern District of North Carolina, or (3) stay their release from custody when their prison sentences expired. See Pls.' Opp'n to Defs. Mot. to Dismiss (“Pls.' Opp'n”) at 5, 16, 20-21.

         In addition, Plaintiffs challenge the authority of the Eastern District of North Carolina to cause their post-incarceration civil commitment pursuant to § 4248. Plaintiffs claim that the Act violates Article 1, section 9 of the United States Constitution, which provides that “[n]o Bill of Attainder . . . shall be passed” by the United States Congress. U.S. Const. art. I, § 9, cl. 3. Plaintiffs assert that if the Act pursuant to which Defendants operate “is a Constitutionally prohibited Bill of Attainder, no Federal Court could have Art[icle] III jurisdiction, ” Pls.' Opp'n at 6, “[a]ny decisions made by the North Carolina Court are VOID and unenforceable, ” id. at 22 (emphasis in original). Thus, they claim to be held “by force and without judicial authority. Id. at 6; see Pls.' Surreply at 9.

         Plaintiffs demand a “judgment . . . in the amount of $5, 000.00 per day, per [D]efendant, per [P]laintiff, for each day beyond their scheduled release dates, until ...


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