On September 26, 2011, Detective Tizoc Landeros of the Joliet Police Department
learned that Plaintiff was spending time at the Morning Star Mission in Joliet and that he was a
child sex offender with an outstanding warrant for his arrest on parole violations with the Indiana
Department of Corrections (Def.’s SOF {1 28-29). Detective Landeros further learned that
Plaintiff had not registered as a sex offender in the State of Illinois but had been issued a State of
Illinois identification card on September 16, 2011 (Def.’s SOF 130). Detective Landeros
arrested Plaintiff at the Plaza Hotel in downtown Joliet, where Plaintiff had been renting a room
(Def.’s SOF 19 32-33). Plaintiff received his Miranda rights, waived his constitutional right to
counsel, and consented to a recorded interview wherein he told Detective Landeros that he knew
he had a duty to register as a sex offender in both Indiana and Illinois but that he had failed to do
so because he did not have an address to register (Def.’s SOF 1 34-35; PI.’s Dep. at 49-S2).
Plaintiff never said to Detective Landeros that he had attempted to register in New Lenox (Def.’s
SOF 9 37; Pl.’s Dep. at 62-63).

Plaintiff pleaded guilty on May 21, 2012 to failing to register as a sex offender in the
State of Illinois within three days of residing in the State, in violation of 730 ILCS 150/3 (doc. #
68-8: Pleas of Guilty) (Def.’s SOF 1% 3-4, 33). Plaintiff was present in court every day between
the start of his trial on November 7, 2011, and his guilty plea on May 21, 2012; yet, Plaintiff
never claimed that he had made an unsuccessful attempt to register in New Lenox (Def.’s SOF
11 46-48; Pl.’s Dep. at 64-66).

Il.

“Summary judgment is appropriate when there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of law.” Andrews v. CBOCS West,

Inc., 743 F.3d 230, 234 (7th Cir. 2014); Fed. R. Civ. P. 56(a). Federal Rule of Civil Procedure


(Defendant) was unable to complete the registration and that Plaintiff needed to return at a
different time. Plaintiffs subsequent arrest was a “loss of liberty,” but it was not caused by any
action by Officer Donnelly in not registering him on September 4, 2011. Rather, Plaintiff's
arrest was the direct consequence of his failure to fulfill his duty to register under SORA,
including his failure to register with any police department in the 22 days after September 4.
Plaintiff does not offer evidence that could show that the New Lenox Police Department
procedures in effect to handle the registration of sex offenders were inadequate to protect his
interests. Accordingly, we decline to delve further into this matter and conclude that Defendant
did not violate any of Plaintiffs due process rights under the Fourteenth Amendment.®

Finally, we observe that Plaintiff's attempt to rely on SORNA is misguided. SORNA has
no bearing on this case because Plaintiff was charged and convicted under Illinois law, and not
under federal law. In addition, even if SORNA applied, it would at most have given Plaintiff an
affirmative defense to his criminal prosecution—one that he never asserted (Def.’s SOF 47).
Even had Plaintiff raised that affirmative defense in his criminal case, we fail to see how it would
have assisted him. The affirmative defense requires a person to show that the failure to register
was due to “uncontrollable circumstances” that he did not help to create, and that he complied
with the registration requirement as soon as these circumstances abated. Here, Plaintiff has
offered no evidence that would explain his failure to register for some four weeks between his
arrival in Joliet on August 6 and his alleged visit to the New Lenox Police Department on

September 4, or for more than three weeks thereafter until his arrest.

° Because we find no evidence of a constitutional violation and thus no violation of Section 1983, we need not
address Defendant’s alternative arguments, including his contention that Joliet, and not New Lenox, was the proper
place for Plaintiff to register, or that Defendant properly followed applicable New Lenox Policy Department policy
when he told Plaintiff to return at a later time.

10


arguments in two parts: in Part A, we discuss Defendant’s contention that Plaintiff cannot
identify a constitutional right of which he was deprived under Section 1983; and in Part B, we
address Defendant’s argument that he is entitled to qualified immunity relative to his actions on
September 4, 2011.4

A.

Plaintiff brings this suit pursuant to 42 U.S.C. § 1983, which requires him to provide
evidence of material fact showing that Defendant, while acting under color of law, deprived him
of an established right, privilege, or immunity secured by the Constitution and laws of the United
States. Lewis v. Downey, 581 F.3d 467, 472-73 (7th Cir. 2009). To show a violation of Section
1983 in this case, Plaintiff needs to establish that Defendant, acting in his capacity as a police
officer, deprived Plaintiff of a constitutional right by turning him away on September 4, 2011
without first registering him as a sex offender (doc. # 74: Pl.’s Resp. to Def.’s Mem. in Support
of Mot. Summ. J. (“PI.’s Resp.”) at 2).

With this framework in mind, we turn to Defendant’s first argument, which is that
summary judgment is appropriate because Plaintiff cannot establish the violation of a
constitutional right (doc. # 69: Def.’s Mem. in Support of Mot. Summ. J. (“Def.’s Mem.”) at 1).
Defendant maintains that Plaintiff had a legal duty pursuant to the Illinois Sex Offender
Registration Act (“SORA”), 730 ILCS 150 et seq., to register as a sex offender in the
municipality in which he resided—a duty that Plaintiff cannot twist into a constitutional right

that he claims was then violated by Defendant (Def.’s Mem. at 1-2).? Defendant further points

4 We need not address Defendant’s argument concerning the implausibility of Plaintiffs statement that he
sought to register at the New Lenox Police Department. A decision can be rendered in this case based on the
uncontested facts set forth in Defendant’s Statement of Facts, which assumes the truth—as do we on summary
judgment—of Plaintiff's version of the events of September 4, 2011.

5 Plaintiff does not dispute that he had a duty to register under SORA (Def.’s SOF 4 34-35; PI.’s Dep. at S1-
52). Nor does Plaintiff allege that the Indiana correctional facility at which he originally was incarcerated failed to


56(c) dictates that “the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original) (citing Fed. R. Civ. P. 56(c)). A genuine issue of material
fact exists only if there is evidence “to permit a jury to return a verdict for” the non-moving
party. Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010). The
moving party has the burden of establishing the lack of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the party moving for summary judgment
demonstrates the absence of a disputed issue of material fact, then “the burden shifts to the non-
moving party to provide evidence of specific facts creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). In doing so, the non-movant must “set forth specific facts
showing that there is a genuine issue for trial” that go beyond those facts set forth in the
pleadings. Hannemann v. Southern Door County School Dist., 673 F.3d 746, 751 (7th Cir. 2012)
(internal quotations and citations omitted). Summary judgment is proper against “a party who
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at
322.
IV.

Defendant moves for summary judgment on three main grounds: (1) that Plaintiff is
unable to establish the violation of a constitutional right under 42 U.S.C. § 1983; (2)
alternatively, that Defendant’s conduct was reasonable under the circumstances, thus entitling
him to qualified immunity; and (3) that Plaintiff's evidentiary admissions render his testimony

regarding attempted registration incredible as a matter of law. This Court addresses Defendant’s


The language of SORA is succinct and makes very clear that Plaintiff had a statutorily-
mandated duty to register as a sex offender within three days of entering Illinois. Plaintiff did
not do so. He did not return to register with the New Lenox Police Department, as he admits he
was instructed to do by Defendant; nor, during the subsequent three weeks before his arrest on
September 26, 2011, did Plaintiff initiate registration with any other police department.
Plaintiff's failure to register represented an on-going violation of SORA that was never cured.
As Defendant points out, and we agree, Plaintiff cannot convert his unfulfilled, statutorily-
mandated state law duty to register into a federal constitutional right, and then claim a violation
of that right merely because Defendant asked him to return at a later time when someone with
authority was present to register him. Simply stated, we conclude that there is no constitutional
right to register as a sex offender. There is only a legal duty, imposed by statute, to register.

Having found no constitutional right to register as a sex offender, we turn briefly to the
question of whether Defendant violated Plaintiff's due process rights under the Fourteenth
Amendment when he turned Plaintiff away on September 4, 2011. Plaintiff makes no such
allegations, but still we cast the constitutional net a little wider in deference to Plaintiff's pro se
status. To sustain a due process claim under the Fourteenth Amendment, Plaintiff must show
there was a deprivation of life, liberty or property and that the procedures provided by Defendant
to prevent such a deprivation were inadequate. See U.S. Const. amend. XIV, § 1 (“[N]or shall
any State deprive any person of life, liberty, or property, without due process of law”); see also
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (providing a three-part balancing test to
determine what procedures are required when there has been a deprivation of life, liberty or
property). There is no evidence in this case that Plaintiff was deprived of life, liberty or property

as a consequence of Defendant’s actions. Defendant simply informed Plaintiff that he


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DAVID W. SHORE, )
)
)
Plaintiff, )
) Case No. 11 CV 7742

v. )

) Magistrate Judge Sidney I. Schenkier
OFFICER MICHAEL DONNELLY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER’

Plaintiff David Wayne Shore filed suit against Defendant Michael Donnelly pursuant to
42 U.S.C. § 1983, alleging that Defendant violated his constitutional rights by preventing him
from registering as a sex offender, and thereby forcing him into the involuntary violation of an
Illinois sex offender law. Defendant now moves for summary judgment pursuant to Rule 56(c)
of the Federal Rules of Civil Procedure (doc. # 67). For the reasons set forth below, Defendant’s
motion for summary judgment is granted.

L

Before turning to the facts of this case, we first examine Local Rule (“L.R.”) 56.1, which
governs motions for summary judgment in the Northern District of Illinois. See Birks v. Dart, 12
C 7701, 2014 WL 1345893, at *1 (N.D. Ill. Apr. 4, 2014). Local Rule 56.1(a)(3) requires the
moving party to file “a statement of material facts as to which the moving party contends there is
no genuine issue and that entitle the moving party to a judgment as a matter of law.” L.R.

56.1(a)(3). In response, the non-moving party must file “a concise response to the movant’s

‘On August 19, 2013, by consent of the parties and pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, this
case was assigned to this Court for all proceedings, including entry of final judgment (docs. ## 57, 60, 62).


at 723 (finding that the right to be free from arrest without probable cause is a clearly established
constitutional right); White v. Stanley, 745 F.3d 237, 241 (7th Cir. 2014) (noting that “searching
or arresting anybody after an unjustified home entry violates clearly established constitutional
rights”); see also Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995) (concluding that “[iJf a
plaintiff's allegations, even when accepted as true, do not state a cognizable violation of
constitutional rights, then the plaintiff's claim fails”) (citations omitted). Accordingly, we
conclude that qualified immunity shields Defendant from liability in this case.’

Defendant raises several additional arguments concerning immunity under SORNA and
the Illinois Tort Immunity Act. We need not address these arguments, as we find summary
judgment appropriate for the reasons we have stated above. See Hugunin v. Land O'Lakes, Inc.,
11 C 9098, 2014 WL 1052502, at *6 n.1 (N.D. Ill. Mar. 19, 2014) (noting that once the court

finds a basis for summary judgment, it need not address alternative arguments).

’ Plaintiff argues that qualified immunity does not apply because Defendant “is a police officer of the
MUNICIPALITY of New Lenox, Illinois, and is NOT a government official of the state” (Pl.’s Resp. at 2)
(emphasis in original). This is an incorrect statement of law. Although qualified immunity is not always available
to a municipality under Section 1983, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 701 (1978); Capra v. Cook
County Bd. of Review, 733 F.3d 705, 711 (7th Cir. 2013), government officials, such as police officers, are permitted
to avail themselves of this defense. See Harlow, 457 U.S. at 818.

12


The sole issue before this Court is whether Defendant violated Plaintiff's constitutional
rights under Section 1983 by turning him away on September 4, 2011. We conclude that he did
not.

B.

Defendant also argues that summary judgment is appropriate, even if Plaintiff presented a
triable issue on the claim that a constitutional right was violated, because Defendant is entitled to
qualified immunity for his actions. We agree. “[G]overnment officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This defense balances two
different, important interests: “the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officers from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).

In determining whether qualified immunity applies in this case, we must consider: “(1)
whether . . . [P]laintiff has asserted a violation of a federal constitutional right, and (2) whether
the constitutional standards implicated were clearly established at the time in question.” Spiegel
v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999). The burden of meeting the elements of this two-
part test rests on Plaintiff. Jd.; see also Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003)
(placing burden on plaintiffs to defeat defendant’s qualified immunity defense stemming from
execution of a search warrant). And it is a burden Plaintiff clearly cannot meet. As noted
already several times, Plaintiff has failed to present a triable claim that Defendant violated a
clearly established constitutional right. But even were it otherwise, there is no basis for any

claim that the alleged constitutional right was “clearly established.” See, e.g., Spiegel, 196 F.3d

11


out that nothing within the confines of SORA suggests an intention to “mandate that an
individual municipality provide registration to offenders on a 24 hours per day, 7 day per week,
365 days per year basis” (Def.’s Mem. at 6).

In response, Plaintiff argues that he is shielded from his failure to register by language
contained within the federal counterpart to SORA, known as the Sex Offender Registration and
Notification Act (“‘“SORNA”), 18 U.S.C. § 2250 et seq., which permits as an affirmative defense
to registration on a showing that: “(1) uncontrollable circumstances prevented the individual
from complying; (2) the individual did not contribute to the creation of such circumstances in
reckless disregard of the requirement to comply; and (3) the individual complied as soon as such
circumstances ceased to exist.” 18 U.S.C. § 2250(b). Plaintiff maintains that this affirmative
defense applies here because Defendant prevented him from registering, and because he
remedied the situation by registering after he was arrested by Officer Landeros (PI.’s Resp. at 1).

As a convicted sex offender out on parole, Plaintiff was required under Illinois law
(embodied by SORA) to register “with the chief of police in the municipality in which he . . .
resides or is temporarily domiciled for a period of time of 3 or more days.” 730 ILCS
150/3(a)(1). A place of residence or temporary domicile is defined as “any and all places where
the sex offender resides for an aggregate period of time of 3 or more days during any calendar

year.” Id. at 150/3. SORA further provides that “[a]ny person who lacks a fixed residence must

report weekly, in person, with the sheriff's office of the county in which he . . . is located in an
unincorporated area, or with the chief of police in the municipality in which he . . . is located.”
Id.

inform him of his duty to register. See Indiana Sex Offender Registration Act, IC 11-8-8-9 (requiring correctional
facilities to inform soon-to-be-released sex offenders of their duty to register as sex offenders upon their release);
see also SORA, 730 ILCS 150/4 (requiring correctional facilities to inform sex offenders of their duty to register and
of the consequences of a failure to register, including revocation of parole).


and September 26, 2011, when Plaintiff was arrested by Detective Landeros of the Joliet Police
Department, did Plaintiff attempt to register as a sex offender with the City of Joliet Police
Department (Def.’s SOF 1 15; Pl.’s Dep. at 51-52, 59-61).

Plaintiff has never lived in New Lenox, Illinois, nor did Plaintiff stop in New Lenox on
his way from Indiana to Joliet (Def.’s SOF 913; Pl.’s Dep. at 55). Even so, on Sunday,
September 4, 2011, Plaintiff claims to have walked from Joliet to the New Lenox Police
Department, which was a distance of 11.4 miles (Def.’s SOF | 21; PI.’s Dep. at 83-84).

It is undisputed that on Sundays, the New Lenox Police Department is closed to the
general public (Def.’s SOF § 56). A member of the public who comes to the station would have
to go to the rear of the building and use a wall phone to contact a dispatcher and ask that officers
come to a specific location (Id. at 1157-58). There is no record of such a call being made by
Plaintiff asking that Officer Donnelly leave his patrol zone and report to the station on
September 4, 2011 (Id. at 19 59-60).

Even so, Plaintiff states that he arrived at the New Lenox Police Department on the
morning of September 4 and, upon walking through the front entrance, told Officer Donnelly, a
patrol officer, that he needed to register as a sex offender (Def.’s SOF 1% 22-24; Pl.’s Dep. at
g9-94)3 Defendant responded by telling Plaintiff that no one was present at that time with the
authority to register him, and asked if he could come back later (Def.’s SOF § 25). Plaintiff
thanked Defendant and said he could (Def.’s SOF 125; Pl.’s Dep. at 94, 96). Plaintiff never
returned to the New Lenox Police Department to attempt to register (Def.’s SOF 1 27; Pl.’s Dep.

at 95-96).

3 In fact, Defendant denies that he ever met Plaintiff (Def.’s SOF at 5 n.1). However, to avoid a case of
“dueling affidavits” that could preclude summary judgment, Defendant adopted Plaintiff's version of the facts of
September 4, 2011 in his own Statement of Facts so as to prevent this possibility (/d.). Accordingly, for purposes of
this ruling, we accept as true Plaintiff's version of the events of September 4, 2011.


summary judgment where pro se plaintiff could show no prejudice from lack of notification).
Prejudice is considered lacking if any additional evidence Plaintiff could have submitted “would
still be insufficient to make out a prima facie case” under Section 1983. Id. at 287. In other
words, there is no prejudice if summary judgment is unavoidable, notwithstanding the lack of
proper notification. Jd. at 286. In this case, as shown below, we have considered Plaintiffs
sworn testimony as presented in Defendant’s Statement of Facts yet conclude that, even
accepting as true for purposes of this motion Plaintiffs version of the events of September 4,
2011, Plaintiff cannot make out a prima facie case under Section 1983. Accordingly, we
conclude that Plaintiff was not prejudiced by any lack of notice regarding the consequences of
non-compliance with Local Rule 56.1.
IL.

Defendant’s Statement of Material Facts (including Plaintiffs version of the events of
September 4, 2011) is uncontested and therefore provides the basis for the factual background set
forth below, although we still “constru[e] all facts and draw{ ] all reasonable inferences in favor
of the nonmoving party.” Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). On
January 29, 2009, Plaintiff was convicted of child molestation in St. Joseph County, Indiana
(doc. # 68: Def.’s Statement of Facts (“Def.’s SOF”) 18). He was mandatorily paroled on July
28, 2011, but instead of reporting to his Parole Agent on August 2, 2011, he fled Indiana and
entered Illinois (Def.’s SOF 19-10; Dep. of David Wayne Shore (“Pl.’s Dep.”) at 47, 53).
Plaintiff arrived in Joliet, Illinois on August 6, 2011 and slept under a viaduct within the Joliet
city limits (Def.’s SOF 11; Pl.’s Dep. at 50, 55-56). While living there, Plaintiff used the
computer at the Joliet Public Library, which was only about a block and a half from the Joliet

Police Department (Def.’s SOF {1 41; Pl.’s Dep. at 56-57). At no time between August 6, 2011


statement that shall contain . . . a response to each numbered paragraph in the moving party’s
statement, including, in the case of any disagreement, specific references to the affidavits, parts
of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3), (b)(3)(B).
Additionally, Local Rule 56.1(b)(3)(C) requires the non-movant to file “a statement . . . of any
additional facts that require the denial of summary judgment.” L.R. 56.1(b)(3)(C). Facts
included in the movant’s statement are deemed admitted unless properly controverted by the
opposing party. Id. Courts have discretion to demand strict compliance of these rules from all
litigants, including pro se litigants. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.
2009); see also Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (stating that “it is
also well established that pro se litigants are not excused from compliance with procedural
rules”). Accordingly, a district court does not abuse its discretion when it refuses to consider
additional facts proposed by a pro se litigant after that party has failed to comply with Local
Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).

In this case, Plaintiff failed to file a response to Defendant’s Statement of Facts as
required by Local Rule 56.1(b)(3). This failure raises the possibility that Plaintiff may not have
fully understood the consequences of failing to respond to a summary judgment motion.”
However, any breakdown in the notification process is harmless if this Court finds no evidence

of prejudice to Plaintiff. See Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir. 1992) (upholding

? Notice to a pro se party of the summary judgment process “should include both the text of Rule 56(e) and a
short and plain statement in ordinary English that any factual assertion in the movant’s affidavits will be taken as
true by the district court unless the non-movant contradicts the movant with counter-affidavits or other documentary
evidence.” Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992) (citing Lewis v. Faulkner, 689 F.2d 100, 102 (7th
Cir. 1982)). The docket does not contain any entry suggesting that Plaintiff received such notice. The only
information on this matter comes from a recorded status conference dated September 11, 2013, at which Defendant
made clear to Plaintiff and the Court that he intended to file a motion for summary judgment. Consequently, the
Court explained to Plaintiff the basic elements of a summary judgment motion and then set a briefing schedule (doc.
#65: Minute Entry dated September 11, 2013). Also during this conference, the Court instructed Defendant to
communicate with Plaintiff to explain the reasoning behind Defendant’s imminent summary judgment motion. It is
unclear whether this communication occurred and, if so, whether Plaintiff was fully informed about the need to file a
responsive Statement of Material Facts.


Vv.
For the foregoing reasons, Defendant’s motion for summary judgment (doc. # 67) is

granted. We enter judgment for Defendant and against Plaintiff. This case is terminated.

ENTER:

%

aed ENKIER
ta tates Magistrate Judge

DATED: April 29, 2014

13