Charles G. Chrenko v. Bob Riley , 560 F. App'x 832 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12349
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00783-CSC
CHARLES G. CHRENKO,
Plaintiff-Appellant,
versus
BOB RILEY,
Governor, in his individual and official capacity,
TROY KING,
Attorney General, in his individual and official capacity,
J. CHRISTOPHER MURPHY,
Colonel, in his individual and official capacity,
RICHARD ALLEN,
Commissioner, in his individual and official capacity,
KATHY HOLT,
Dir. of Central Records, in her individual and official capacity, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Alabama
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(March 19, 2014)
Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Charles Chrenko, a former Alabama prisoner, sued six Alabama state
officials, alleging that the defendants’ enactment, application, and enforcement of
the Alabama Community Notification Act (ACNA) violated his rights under the
U.S. Constitution and a variety of federal laws. He sought declaratory and
injunctive relief, as well as damages from the defendants in their official and
individual capacities under 42 U.S.C. § 1983. The defendants moved for summary
judgment on all claims, which the magistrate judge hearing the case granted.1 On
appeal, Chrenko challenges only the magistrate judge’s grant of summary
judgment as to his claims for damages. 2
1
The parties consented to have the magistrate judge conduct all proceedings and enter a
final judgment in this case. See 28 U.S.C. § 636(c)(1).
2
In granting summary judgment to the defendants, the magistrate judge determined that
Chrenko’s claims for declaratory and injunctive relief were moot because the ACNA had been
repealed before the magistrate judge issued his decision. Chrenko does not challenge that
determination on appeal, and he has therefore abandoned the issue. See, e.g., Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (noting that “issues not briefed on appeal by a pro
se litigant are deemed abandoned”).
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Chrenko contends that the enactment and enforcement of the ACNA,
Alabama’s now-repealed sex offender registration statute, violated his rights under
the First and Eighth Amendments. 3 He argues that he suffered harassment and
discriminatory treatment from the public because the ACNA required him to notify
the public of his sex offender status. He claims that the notification requirements
violated his Eighth Amendment rights because it is cruel and unusual punishment
to require him to notify the public of his sex offender status and, consequently,
endure harassment from a hostile public. He claims that the Act violated his First
Amendment right to assemble because he could not go out in public without being
harassed.
I.
We review de novo the magistrate judge’s grant of summary judgment, and
we review the judge’s factfindings for clear error. Levinson v. Reliance Standard
Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001).
3
He also claims that the Act’s requirements violated his rights under the Privileges and
Immunities Clause of the Fourteenth Amendment. We do not evaluate that argument on appeal
because Chrenko never raised it before the magistrate judge. See, e.g., Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue
not raised in the district court and raised for the first time in an appeal will not be considered by
this court.”) (quotation marks omitted).
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In September 2003 Chrenko was convicted of two counts of attempted first-
degree rape of a child under the age of twelve and sentenced to fifteen years
imprisonment. He initially served two years and six months in prison and had the
remainder of his sentence suspended. As a convicted sex offender, Chrenko was
subject to the notification requirements of the ACNA during the time he was out of
prison on probation. In 2008 Chrenko’s probation was revoked and he returned to
prison to serve out the remainder of his sentence.
In granting summary judgment to the defendants on Chrenko’s § 1983
claims, the magistrate judge found that “the record . . . fails to demonstrate that the
provisions of the ACNA were ever applied to [Chrenko].” That finding was
clearly erroneous. Chrenko submitted an affidavit with his complaint, stating that
he received threats of bodily harm and suffered harassment in 2006 when he was
subject to the ACNA’s notification provisions while on probation. The defendants
did not submit any evidence to contradict that statement in Chrenko’s affidavit, and
they did not provide any evidence that would establish that Chrenko was never
subject to the ACNA. As a result, the magistrate judge’s grant of summary
judgment relied on a clearly erroneous finding of fact.
However, we may still affirm the magistrate judge’s decision “if there exists
any adequate ground for doing so, regardless of whether it is the one on which the
[magistrate judge] relied.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th
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Cir. 1993). That is the case here. In order to prevail on his § 1983 claims,
Chrenko must show that he was deprived of a federal right by a person acting
under color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th
Cir. 2001). Because he has shown no cognizable violation of the First or Eighth
Amendments, the defendants were entitled to summary judgment on the § 1983
claims.
Chrenko’s contention that his First Amendment right to assemble was
violated amounts to a claim that the ACNA impeded his right to social association
because its registration requirements led to his harassment by the public. The
Supreme Court has stated, however, that the right to “social association” is not
protected by the First Amendment. See City of Dallas v. Stanglin, 490 U.S. 19, 25,
109 S. Ct. 1591, 1595 (1989) (“[W]e do not think the Constitution recognizes a
generalized right of social association . . . .”) (quotation marks omitted); see also
City of Chicago v. Morales, 527 U.S. 41, 53, 119 S. Ct. 1849, 1857 (1999) (noting
that a gang loitering ordinance’s “impact on the social contact between gang
members and others does not impair the First Amendment right of association that
our cases have recognized”) (quotation marks omitted). Therefore, Chrenko has
not asserted a deprivation of his First Amendment rights and the defendants were
entitled to summary judgment on that § 1983 claim.
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The defendants were also entitled to summary judgment on Chrenko’s
§ 1983 claim alleging a deprivation of his Eighth Amendment rights. “In non-
capital cases, the Eighth Amendment encompasses, at most, only a narrow
proportionality principle,” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.
2005), and “it forbids only extreme sentences that are grossly disproportionate to
the crime.” United States v. Farley, 607 F.3d 1294, 1341 (11th Cir. 2010). That is
a difficult standard to meet, and the harassment that Chrenko allegedly suffered
because of the ACNA does not satisfy the high threshold for cruel and unusual
punishment. See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1010 (9th
Cir. 2012) (holding that the federal sex offender registration law did not violate the
Eighth Amendment given that “[t]he bar for cruel and unusual punishment is
high”); see also Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991)
(plurality opinion); Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703 (1982) (per
curiam). Accordingly, the defendants were entitled to summary judgment on
Chrenko’s § 1983 claim alleging a violation of his Eighth Amendment rights.
For the reasons stated above, the magistrate judge’s grant of summary
judgment in favor of the defendants is AFFIRMED.
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