13-498-cv
Balentine v. Tremblay

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court‟s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th
day of February, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                         Circuit Judges.
_____________________________________

KRISTOPHER BALENTINE,

                      Plaintiff-Appellant,

                               v.                                                                  No. 13-498-cv

THOMAS TREMBLAY, in his individual capacity, JEFFREY WALLIN,
in his individual capacity as director of Vermont Criminal
Information Center, MAX SCHLEUTER, in his individual capacity
as director of Vermont Criminal Information Center,

                      Defendants-Appellees,

ANDREW PALLITO, in his official capacity as Commissioner of
Vermont Department of Corrections, KEITH FLYNN, in his official
capacity as Commissioner of the Vermont Department of Public Safety,

            Defendants.*
_____________________________________



          *   The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties
above.
FOR PLAINTIFF-APPELLANT:                               BRIAN MARSICOVETERE, Marsicovetere Law
                                                       Group, White River Junction, VT.

FOR DEFENDANTS-APPELLEES:                              JONATHAN T. ROSE, Assistant Attorney
                                                       General, Office of the Attorney General of
                                                       Vermont, Montpelier, VT.


        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that that the January 10, 2013 judgment of the United States
District Court for the District of Vermont (Christina Reiss, Chief Judge) is AFFIRMED.

        Plaintiff-appellant Kristopher Balentine (“Balentine”) appeals from a judgment of the
District Court granting in part the motion of defendants-appellees, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, to dismiss Balentine‟s First Amended Complaint (the
“complaint”). We assume the parties‟ familiarity with the underlying facts and the procedural history
of the case, to which we refer only as necessary to explain our decision to affirm.

                                         BACKGROUND

         The complaint, supplemented by the addendum to Balentine‟s opening brief, alleges the
following. In November 2003, Balentine was convicted of third degree rape in New York for
consensual sexual relations with a minor. Upon moving to Vermont in May 2007, in accordance
with Vermont law, Balentine registered as a sex offender on a centralized sex-offender registry and
reported for fingerprinting and photographing. Although Vermont law now requires the Vermont
Department of Safety (“DPS”) to refer all registered sex offenders for an assessment of their
likelihood to reoffend, Balentine never received such a referral or a risk assessment. Following his
registration, Balentine continued to reside and work in Vermont from 2007 through 2010.

        Vermont law also requires the maintenance of an online sex-offender registry (the “online
registry”), accessible to the public, which contains information such as a photograph of the sex
offender, personal information, crime of conviction, and an assessment of risk to reoffend. See 13
V.S.A. § 5411a. For sex offenders who have not been subject to a risk assessment, DPS is required
to post a statement on the online registry that the “offender has not been so assessed and that such a
person is presumed to be high risk.” Id. § 5411a(b)(12).

        In 2009, the legislature expanded the scope of the online registry to include offenders, like
Balentine, who, prior to taking up residence in Vermont, had been required to register as sex
offenders in other jurisdictions. See 2009 Vt. Acts & Resolves No. 58, § 9 (adding 13 V.S.A.
§ 5411a(a)(7)). The new law contained an opportunity for out-of-state offenders to avoid placement
on the online registry by showing that they had “successfully reintegrated into the community.” Id.

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§ 11(3)(A). Before placing out-of-state offenders‟ profiles on the online registry, DPS was required
to provide each offender with notice of the opportunity to petition for a “successful reintegration”
exemption. Id. § 11(3)(B)(ii). For those who filed such a petition, the Vermont Department of
Corrections (“VDOC”) was required to decide whether the offender had successfully reintegrated
into the community. Id. §§ (3)(A) and (3)(B)(iii). If VDOC found that the offender had
“successfully reintegrated into the community,” then the person would not be placed in the online
registry. Id.

         In 2010, DPS posted Balentine‟s photo and information to the online registry without the
notice and opportunity for a hearing required by the statute. Because Vermont had not conducted a
risk assessment, Balentine‟s “risk status” warned, “No Risk Assessment Available - Presume To Be
High Risk To Re-Offend.”

         Balentine brought suit against defendants in their individual capacities, asserting in Count
One of his four-count complaint a violation of his procedural due process rights by defamation
under 42 U.S.C. § 1983.1 On June 4, 2012, the District Court granted defendants‟ motion to dismiss
in part, dismissing, inter alia, the individual capacity procedural due process claim pursuant to Rule
12(b)(6). On December 20, 2012, Balentine withdrew his remaining claims, and the Court entered
final judgment on January 10, 2013. This timely appeal followed.

                                                    DISCUSSION

        We review de novo a district court‟s grant of a motion to dismiss under Rule 12(b)(6),
“accepting as true all allegations in the complaint and drawing all reasonable inferences in favor of
the non-moving party.” Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011). To survive a Rule
12(b)(6) motion to dismiss, the complaint must include “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A claim will have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Although all allegations contained in the complaint are
assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.



         1   Plaintiff does not expressly state in Count One of his complaint that he has asserted a so-called “stigma-plus”
defamation claim. However, he alleges that as a result of defendants‟ conduct, he has “suffered public humiliation,
damage to his reputation, loss of employment, personal associations, and the benefits of liberty”—the damages typically
associated with a “stigma-plus” defamation claim. Moreover, he states in his opening brief that the issue on appeal is
whether he has “plausibly alleged that he was subjected to „stigma plus‟ defamation.” Accordingly, we will treat
plaintiff‟s procedural due process claim alleged in Count One as a claim for “stigma-plus” defamation, not as a due
process claim predicated solely on the violation of a state-created liberty interest. Cf. Vega v. Lantz, 596 F.3d 77, 81-82
(2d Cir. 2010) (analyzing under § 1983 both a stigma-plus defamation claim and a due process claim arising from the
deprivation of a state-created liberty interest). We describe this sort of defamation claim in more detail below.


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        In this appeal, Balentine challenges only the District Court‟s decision to dismiss his
procedural due process claims by defamation against defendants in their individual capacities.
Defamation by a state actor does not amount to a deprivation of “liberty” or “property” within the
meaning of the Fourteenth Amendment, unless accompanied by some interest other than mere loss
of reputation. See Paul v. Davis, 424 U.S. 693, 711 (1976). Accordingly, to allege a cognizable claim
under 42 U.S.C. § 1983 predicated upon an act of defamation, a plaintiff must allege what is
colloquially referred to as “stigma-plus” claim: “a stigmatizing statement plus a deprivation of a
tangible interest” without due process of law. Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.
2005). To establish the so-called “stigma plus,” a plaintiff must allege two elements: (1) “the
utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of
being proved false, and that he or she claims is false,” plus (2) “a material state-imposed burden or
state-imposed alteration of the plaintiff‟s status or rights.” Sadallah v. City of Utica, 383 F.3d 34, 38
(2d Cir. 2004) (internal citations and quotation marks omitted).

         The “plus” requirement must be alleged “in addition to the stigmatizing statement,” id. at 38,
because “reputation alone, apart from some more tangible interests” is not “sufficient to invoke the
procedural protection of the Due Process Clause,” Paul, 424 U.S. at 701. Examples of tangible
interests recognized by the Supreme Court include the loss of the right to purchase alcohol,
Wisconsin v. Constantineau, 400 U.S. 433, 434 (1971), foreclosure of the freedom to take advantage of
government employment, Bd. of Regents v. Roth, 408 U.S. 564, 573-74 (1972), and the extinguishment
of the right to public education, Goss v. Lopez, 419 U.S. 565, 574-75 (1975); see also Sadallah, 383 F.3d
at 38 (“Burdens that can satisfy the „plus‟ prong under this doctrine include the deprivation of a
plaintiff‟s property, and the termination of a plaintiff‟s government employment.” (citations
omitted)).

        Even assuming, arguendo, that defendants‟ public statements about Balentine amounted to
defamation, Balentine has failed to allege the additional state-imposed burden necessary for invoking
the “stigma plus” doctrine. Balentine was properly classified as a sex offender subject to the
accompanying registration and notification requirements, and he does not claim that Vermont
wrongfully imposed any substantive legal burden on him. Moreover, his alleged reputational damage
resulting in the loss of private employment, humiliation, and embarrassment are inadequate to satisfy
the “plus” requirement.

         Balentine contends that defendants deprived him of the right under Vermont law to notice
and an opportunity to be heard prior to the online registry posting. Yet this purported denial of
process is not a “plus”—the deprivation of a tangible interest—within the meaning of the precedents
above. The deprivation of the notice procedures did not impose a burden in addition to the stigma
caused by the statement. Cf. Patterson v. City of Utica, 370 F.3d 322, 336 (2d Cir. 2004) (“[I]t is the
plaintiff‟s reputational interest, and how that interest can effect [(sic)] his standing in the community
and his future job prospects, that is at issue [in a stigma-plus claim].” (emphasis supplied)). Indeed, the

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adequacy of the process by which Balentine was placed on the online registry is an inquiry in the
doctrinal analysis distinct from the existence of a “stigma-plus” liberty or property right. See Velez v.
Levy, 401 F.3d 75, 90-91 (2d Cir. 2005) (analyzing whether plaintiff received “all the process to
which she was entitled” only after concluding that she had alleged a valid “stigma-plus” liberty
interest). Accordingly, Balentine cannot bootstrap his complaint by relying on the denial of a notice
and a hearing for both the denial of procedural guarantees and the deprivation of his liberty or
property right. Absent that right, he has no claim upon which relief can be granted.

                                           CONCLUSION

       We have considered all of the parties‟ arguments on appeal and find them to be without
merit. For the reasons stated above, we AFFIRM the January 10, 2013 judgment of the District
Court.

                                                        FOR THE COURT:
                                                        Catherine O‟Hagan Wolfe, Clerk




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