Duarte v. City of Lewisville (136 F. Supp. 3d 752, 2015)

United States District Court for the Eastern District of Texas 2015-09-28

Judiciary and Judicial Procedure The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

Came on for consideration the report and recommendation of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On August 21, 2015, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that Defendant’s Motion for Summary Judgment (Dkts. #70-75) be granted, and Plaintiffs’ claims be dismissed with prejudice. Having received the report and recommendation of the Magistrate Judge (Dkt. # 91), having considered Plaintiffs timely filed objections (Dkt. #94), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and hereby adopts the Magistrate Judge’s report (Dkt. #91) as the findings and conclusions of the Court.

BACKGROUND

The facts in this case originate from a child sex offender residency restriction ordinance (the “Ordinance”), enacted by Defendant City of Lewisville, Texas (the “City”), its application to Plaintiff. Aurelio Duarte (“A. Duarte”) and, by extension, its effects on A. Duarte’s wife, Wynjean Duarte (“W. Duarte”), and children (“S.D.” and “B.D.”). The facts are set out in detail by the Magistrate Judge, and need not be repeated herein (see Dkt. # 91). In summary, A. Duarte is a convicted child sex offender and is required to register with the Texas Department of Public Safety’s Sex Offender Database (the “Database”) because of his conviction involving a minor; thus, Plaintiff is prohibited by the City’s' Ordinance from residing in the City “within 1,500 feet of any premises where children commonly gather,” subject to a number of affirmative defenses (Dkt. # 70, Exs. 1, 3; Dkt. # 1 at 3, ¶ A). Plaintiffs’ Complaint is comprised of two' sets of claims: (1) claims asserted by Plaintiff A. Duarte himself, and (2) claims asserted by W. Duarte, S.D., and B.D. (the “Duarte Family”) (Dkt,,# 1 at 7, 9, 10). Plaintiffs assert that the imposition of a child predator buffer .zone, or a restriction on where persons required to register on the Database because of convictions regarding a minor, may live in relation to “premises where children commonly gather,” is a violation of the rights afforded them by and/or through the United States Constitution. Id.

The procedural posture of this case is lengthy, and is fully recited by the Magistrate Judge (Dkt. #91 .at 9-10). The Court will describe only those procedural events related to the instant motion and occurring since the Magistrate Judge’s report and recommendation was entered. On June 5, 2015, the City filed its Motion for Summary Judgment and Brief in Support (Dkt. # 70-75) seeking summary judgment on all claims. On July 7, 2015, Plaintiffs filed their response (Dkt. # 84), and on July 17, 2015, the City filed its reply (Dkt. #89). On August 21, 2015, after a thorough analysis of Plaintiffs’ claims and the parties’ summary judgment arguments, the Magistrate Judge entered a report and recommendation finding Plaintiffs’ claims should be dismissed with prejudice in their entirety (Dkt. # 91). Specifically, the Magistrate Judge recommended Plaintiff A. Duarte’s claims for violations of (1) the Ex Post Facto Clause of Article 1, Section 10 of the United States Constitution; (2) the Double Jeopardy Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983; and (5) the Due Process Clause of the Fourteenth Amendment be dismissed with prejudice. Id, The Magistrate Judge further recommended that the Duarte Family’s procedural due process claim be dismissed with prejudice, and that all Plaintiffs’ claims for declaratory and injunctive relief be dismissed with prejudice. Id.

On September 4, 2015, Plaintiffs timely filed their Written Objections to Magistrate’s Findings, Conclusions, Report and Recommendation on Defendant’s Motion for Summary Judgment (Dkt. # 94). Plaintiffs make essentially two objections to the report and recommendation of the Magistrate Judge: (1) A. Duarte objects to the Magistrate Judge’s finding that the Ordinance does not deprive him of equal protection in violation of the Fourteenth Amendment; and (2) all Plaintiffs argue that they have been deprived of procedural due process under the Fourteenth Amendment by-application and enforcement of the Ordinance, and that they hold a “liberty interest” in residing together with immediate family within the areas of the City that are prohibited by the Ordinance (Dkt. # 91 at 34; Dkt. # 94 at 2-3). ■ Notably, Plaintiff specifically states in his objections, “A. Duarte confines his objections, in this response to the Magistrate’s report, to the claims stated above, denial of procedural Due Process «and Equal Protection, and hereby abandons all other claims” (Dkt. # 94 at 3). Accordingly, the report and recommendation of the Magistrate Judge is hereby adopted regarding A. Duarte’s claims for violations of the. Ex Post Facto Clause, the Double Jeopardy Clause, and his civil rights under 42 U.S.C. § 1983, and the Court finds these claims should be dismissed with prejudice. The Court will now consider Plaintiffs’ objections related to the equal protection and procedural due process claims in turn.

I. Equal Protection

A. Duarte asserts that the Ordinance deprives him of his constitutional right to Equal Protection of Law in violation of the Fourteenth' Amendment to the United States Constitution (Dkt. # 1 at 12; Dkt. # 91 at 29). A. Duarte asserts that the Ordinance places persons into two classes, both of which involve persons who are required to register as child sex offenders under Texas law (Dkt. #84 at 16; Dkt. # 91 at 30). The first class of individuals (which includes A. Duarte) is comprised of child sex offenders who are not on community supervision and are subject to the residency restrictions in the Ordinance. Id. The -second class encompasses sex offenders who at the time the Ordinance went into effect were on community supervision and were judicially relieved from compliance with the one-thousand (1,000) foot residency restriction otherwise required as a condition of their supervision under Section 13B of Article 42.12 of the Texas Code of Criminal-Procedure (which will be discussed in greater detail infra). Id. Individuals in the second class are not required to comply with the residency restrictions under one of the six (6) affirmative defenses available in the Ordinance (Dkt. # 70, Ex. 1 at 4-5; Dkt. # 91 at 30). A. Duarte argues that the imposition of the residency restriction on him, but not the second class of sex offenders, deprives him of equal protection (Dkt. # 84 at 16; Dkt. # 91 at 30).

The Magistrate Judge first analyzed whether the Ordinance involves a suspect class or a fundamental right in order to determine which judicial scrutiny test is appropriate to use, and found that sex .offenders and/or persons included on the Texas sex offender registry are not a suspect class (Dkt. #91 at 30-31 (citing Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir.2014))). The Magistrate Judge further; found that, although A. Duarte argued, that he has a fundamental right to live where he wishes and that the Ordi,nance constitutes a direct regulation on family affairs and/or his right to associate, no fundamental right is implicated by the Ordinance. Id. at 31-34. Accordingly, the Magistrate. Judge applied the rational basis, test stating that “the Ordinance will be upheld as long as it is rationally related to a -legitimate government purpose.” (Dkt. # 91 at 34 (citing Hines v. Alldredge, 783 F.3d 197, 202-03 (5th Cir.2015)). The Magistrate Judge found that - there is a conceivable set of facts that provides a rational basis for the imposition of the Ordinance, and recommended that A. Duarte’s equal protection claim be dismissed. Id.

A. The Magistrate. Judge Properly Applied the Rational Basis. Test

A. Duarte does not object to the Magistrate Judge’s finding that the Ordinance should be analyzed using the “more deferential” rational basis test (Dkt. # 94 at 13). Accordingly, the- Court focuses on A. Duarte’s argument that the Magistrate Judge failed to properly analyze — under the test set forth in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) — whether “A. Duarte (Class [1]) has a ’distinguishing characteristic,’ in relation to those exempted by the '[Ordinance] (Class' [2]), that is ’relevant to interests the State has the authority to implement’ ” (Dkt. # 94 at 13). A. Duarte also contends that the City must demonstrate that the different and greater burden imposed on A. Duarte by application of the Ordinance (in relation to the second class- of individuals who are not so burdened) constitutes a “rational means to serve a legitimate end.” Id. A. Duarte argues that the Magistrate Judge’s failure to apply these tests constitutes error.

As an initial matter, the “test” advocated by A. Duarte is not the test described by the Supreme Court in Cleburne, arid the quotes and citations from Cleburne are somewhat taken out of context. The Supreme Court held in Cleburne that the, Equal Protection Clause mandates “all persons similarly situated should be treated alike,” and that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate, state interest.” Id. at 439-40, 105 S.Ct. 3249. The Supreme Court explained that the general rule gives way when a statute classifies individuals by race, alienage, or national origin (which are then subjected to strict scrutiny), or gender (which are then subjected to heightened scrutiny). Id. at 440, 105 S.Ct. 3249. Finding none of those classifications present in Cleburne, the Supreme Court considered whether the ordinance was “rationally related to a legitimate governmental purpose.” Id. at 446, 105 S.Ct. 3249, The Supreme Court stated that the state “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational,” and emphasized “some objections — such as ’a bare... desire to harm a politically unpopular group,’ are not legitimate state interests.” Id. at 446-47, 105 S.Ct. 3249 (internal citations and quotations omitted).-

This is the proper test; the Magistrate Judge undertook such an analysis here. The Magistrate Judge first determined whether any fundamental rights or suspect classifications were implicated by the Ordinance. Finding, none, the Magistrate Judge assessed whether the Ordinance was “rationally related to a legitimate government purpose” (See Dkt. #91 at 34), “As long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decision makers or that some other non-suspect irrational factors may have been considered.” Reid v. Rolling Fork PUD, 854 F.2d 751, 754 (5th Cir.1988) (emphasis in original). The Magistrate Judge concluded that A Duarte failed to demonstrate that there is no conceivable basis for the official action taken by the Ordinance, and further found that the Ordinance rationally advanced the government’s interest in protecting children from the risk of recidivism among child sex offenders (Dkt. #91 at 24-25, 34). This Court agrees. Federal courts have consistently found that legislatures have a clear, compelling interest in protecting children from recidivist sex offenders, and there is a rational connection between prohibiting convicted child sex offenders from living within 1,500 feet of places where children commonly gather and the nonpunitive goal of protecting children from recidivist sex offenders. Further, “[w]here there is such a rational connection to a non-punitive purpose, it is not for the courts to second-guess the state legislature’s policy decision- as to which measures best effectuate that purpose.” Doe v. Bredesen, 507 F.3d 998, 1006 (6th Cir. 2007). The Court finds the Magistrate Judge applied the proper test in considering A. Duarte’s equal protection claim.

B.The Ordinance Itself Does Not Classify Child Sex Offenders

A. Duarte’s argument that the Ordinance further divides sex offenders into two classifications is false. The Ordinance requires all convicted child sex offenders' who must register oñ thé Database to comply with the 1,500 residency restriction; however, the Ordinance offers an affirmative defense for those child sex offenders who are currently on community supervision and the imposition of the required 1,000 foot restriction from places where children commonly gather has either been reduced or waived by the state court. See Tex. Code of Crim. P., Art. 42.12, See. 13B. Notably, the waiver of this restriction must be raised and determined before the trial court presiding over the, community supervision. Id. Thus, the Ordinance itself does not create a distinction or classification between child sex offenders; rather, the trial court proceedings and circumstances • surrounding a defendant’s community supervision control whether a defendant is eligible for the Ordinance’s affirmative defense. In light of the aforementioned, A. Duarte’s objection to the legal reasoning and ‘conclusions of the Magistrate Judge related to his equal protection claim is overruled.

C. The Magistrate Judge Correctly Found No Disparate Treatment

In addition, A. Duarte objects that the Magistrate Judge concluded there is no disparate treatment regarding the application of the Ordinance because the affirmative defense available to the first class of registrants does not depend on “individualized findings of dangerousness.” (Dkt. # 94 at 14). A. Duarte states that the availability of the affírmativé defense “clear[ly]” depends on - judicial findings that a “child safety zone” is not “necessary to protect the public, given the nature and circumstances of the offense” (Dkt. # 94 at 14). As previously enumerated (see n. 4), there are a variety of scenarios in which the 1,000 foot “child safety zone” can be waived or modified by a state court, and only one of those involves a court making a determination that the “child safety zone” is not necessary to protect the public under the particular circumstances of the offense. * Plaintiffs objection to the conclusion of the Magistrate Judge that the Ordinance’s affirmative defenses do not require “individualized findings of dangerousness” is overruled.

D. The Magistrate Judge Did Not Rely on A. Duarte’s “Moderate” Risk Level

A. Duarte further objects that the Magistrate Judge erroneously relied on the Texas Department of Criminal Justice’s assignment of a “moderate” risk level to A. Duarte when recommending that A. Duarte’s equal protection claim be dismissed'(Dkt. #94 at 14). Contrary to A. Duarte’s assertion, the Magistrate Judge did not rely on A Duarte’s risk level in its equal protection analysis, and Plaintiffs objection is overruled.

II. Procedural Due Process (A. Duarte)

As set'forth in his summary judgment response brief, A. Duarte’s procedural due process argument is that the Due Process Clause entitles him to notice and a hearing prior to the imposition of the Ordinance because he has been fully discharged from his sentence for conviction of a sex offense, he is neither on community supervision or parole, and he was deprived of the right to show that he, as an individual, is not dangerous to the community (Dkt. # 84 at 26-27; Dkt. #91 at 36). As noted by the Magistrate Judge, A. Duarte asserted only a procedural due process claim (expressly disclaiming a substantive claim), and postured that such claim could be resolved by determining whether he has a fundamental right to live where he wishes to live (Dkt. # 91 at 36).

The Magistrate Judge found that “to the extent that A. Duarte’s argument is that the application of the Ordinance to him deprives him of a fundamental right — the right to live where he wishes to live— without notice and a hearing, this argument fails” (Dkt, # 91 at 37). The Magistrate Judge found that there is no such fundamental right, and the Court agrees (Dkt. #91 at 31-32). The Magistrate Judge explained:

[O]ver thirty years ago, the Eighth Circuit said “we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right. Cases too numerous to mention have upheld restrictions on this interest.” Prostrollo v. Univ. of S.D., 507 F.2d 775, 781 (8th Cir.1974) (citations omitted). There is no basis to conclude that' this law has changed in the intervening years. Miller, 405 F.3d at 713-14. Indeed, in recent years, courts have repeatedly rejected Plaintiffs’ contention that-there is a fundamental, constitutional right to “reside in a certain place, i.e., with family members,” saying “courts have determined there is no fundamental right to live where one pleases.” Graham, 2006 WL 2645130, at *7, By way of example, in People v. Leroy, an Illinois appellate court determined that a probationer had no fundamental constitutional right to live with his mother when she lived within 500 feet of a restricted area. 357 Ill.App.3d 530, 293 Ill.Dec. 459, 828 N.E.2d 769, 776 (2005). In Spangler v. Collins, a federal court in Ohio determined that a residency restriction of 1,000 feet did not implicate a fundamental right and therefore the statute was entitled to rational basis review. No. 2:11-cv-00605, 2012 WL 1340366, at *5 (S.D.Ohio Apr. 16, 2012). Further, in Miller, the Eighth Circuit considered and specifically rejected the argument that A. Duarte makes in this case that the Constitution establishes a fundamental right to reside at a location of your choosing. 405 F.3d at 714. As a result the court found that strict scrutiny should not apply, and that the residency statute would only be a violation if it was not rationally related ’tó a legitimate government purpose. Id. Likewise,‘this Court concludes that- the right to reside in a location of one’s choosing is not a fundamental right.

Id. at 32. The Magistrate Judge continued to find that the Ordinance applies to all child sex offenders required to register on the Database, and that the affirmative defenses do not allow individualized find-

ings of dangerousness. Id, at 38. The Magistrate Judge concluded, finding that A. Duarte was not entitled to . notice and a hearing to prove a fact that is not relevant to the Ordinance — specifically, that he is not a danger to the community. Id.

A. Inapplicability of the Mathews Test

In his objections, A. Duarte modifies his contention and now argues that the Magistrate Judge must apply a three-factor test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine “what process he is due;” not whether he has a’ fundamental right that was implicated by the Ordinance (Dkt. # 94 at 4). The test that must be applied (according to A Duarte)' requires the Court to identify:

(1) the private interest that will be effected by the official action;

(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and

(3) the government’s interest, including the function involved and the fiscal and administrative burdens, that the additional or substitute procedural requirement would entail.

(Dkt. # 94 at 5 (citing Mathews, 424 U.S. at 335, 96 S.Ct. 893)).

After a review of the case law cited by the Parties, and also the recent Supreme Court decision, Kerry v. Din, — U.S. — , 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015), the Court finds that the three-factor test cited by A. Duarte is inapplicable to the present case - and need not be considered by this Court in its ruling. The Due Process Clause “provides that ’[n]o person shall be... deprived of life, liberty, or property, without due process of law.’ ” Id. at 2132. ‘Although the amount and quality of process that [the Supreme Court’s] precedents , have recognized as ’due’ under the Clause has changed considerably since the founding, [ ] it remains the case that no process is due.if one is not deprived of ’life, liberty, or property.’” Id. (internal citations omitted) (emphasis in original). Thus, the first question that the Court must ask is whether the Ordinance deprives A. Duarte of any of these interests. Id.

There can be no legitimate argument (and none has been made) that A. .Duarte has-been deprived of a life or property interest as these rights are described both historically and in case law precedent. Id. at 2133. And it is precisely this fact that makes the Supreme Court’s decision and its three-factor test in Mathews, which is relied on heavily by A. Duarte, inapplicable to the present decision before the Court. 424 U.S. at 333-34, 96 S.Ct. 893. However, it is heavily disputed whether A. Duarte has been deprived of a “liberty interest.”

The Magistrate Judge determined that A. Duarte has not been deprived of a fundamental right or liberty interest, including an interest in residing wherever he wishes (Dkt. #91 at 31-32). A. Duarte now asserts. (and claims he has always asserted) the infringement of a much narrower and more specific “liberty interest;” i.e., the “right, fundamental or otherwise, to reside as a family in areas of the City of Lewisville that are protected under the [Ordinance].” Id. at 7.

The Magistrate Judge found that neither A. Duarte (nor any other Plaintiff) has such a liberty interest (See Dkt. # 91 at 32 and supra at p. 10). The Magistrate Judge’s conclusion is well supported as courts have repeatedly rejected Plaintiffs’ contention that there is a right to choose one’s place of residence, a right to reside in a certain place, and/or a right to reside with family members. Id. This conclusion is further buttressed by the Supreme Court’s recent holding in Din. 135 S.Ct. at 2133-34. Therein, the Supreme Court was asked to consider whether the denial of Din’s husband’s visa application without notice and a hearing was a violation of due process. Id. The Supreme Court found that “[b]ecause extending constitutional protection to an asserted right or liberty interest... placets] the matter outside the arena of public debate and legislative action, and because the guideposts for responsible decisionmaking in this unchart-ered area are scarce and open-ended, [t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Id. at 2134 (internal quotations and citations omitted). “Before conferring constitutional status upon a previously unrecognized ’liberty,’ ” for which. A. Duarte has not asked, argued, and/or offered case law in support, the Supreme Court requires “a careful description of the- asserted fundamental liberty interest, as well as a demonstration that the interest is objectively, deeply rooted in this Nation’s history and tradition, and .implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Id. (internal quotations and citations omitted). A. Duarte offers no evidence or analysis that his asserted “liberty interest” — residing as a family in the City in areas in which ,he is prohibited from living by the Ordinance — is a liberty interest that is “objectively, deeply rooted” in our history or so implicit in our concept of liberty, “such that neither'liberty nor justice would exist if [it was] sacrificed.” Id. The Ordinance may, indeed, deprive A. Duarte of “something ‘important,’ but if that is the criteria for... [ ] procedural due process, we are in for quité a ride.” Id. at 2138. Such a liberty interest does not exist, and Plaintiff’s objection on this ground is overruled.

B. The Magistrate Judge Did Not Consider.the Number of Available Properties .

A. Duarte also objects to the Magistrate Judge’s reliance on the number of available residential properties Plaintiffs could have leased or purchased outside the Ordinance’s buffer zone (Dkt. # 94 at 6). A. Duarte contends that the Magistrate Judge ignored the real legal question which is whether A. Duarte holds a “liberty interest” to reside as a family in the areas of the City that are protected. Id. The Court has already answered that question in the negative. Moreover, the Magistrate Judge did not consider these available properties in finding that A. Duarte was not entitled to due process (see Dkt. # 91 at 36-38). Plaintiffs objection to the Magistrate Judge’s consideration of the number of available properties is overruled.

C. The Magistrate Judge Applied the Correct Law

A. Duarte also objects to the Magistrate Judge’s reliance on “decisional law that involves the scope of liberty enjoyed by confined prisoners, parolees and persons on community supervision” (Dkt. #94 at 7). Plaintiff contends that he has fully discharged his criminal sentence, is no longer confined or on community supervision, and is entitled to the full scope of liberty enjoyed by others similarly situated. Id. This statement is not entirely accurate, as A. Duarte is still a convicted felon,, and, as noted by the Magistrate Judge, “convicted felons are properly subjected to many restrictions on their constitutional rights which would be objectionable if imposed on non-felons.” (Dkt. # 91 at 38 n. 25 (citing Jones v. Helms, 452 U.S. 412, 420-22, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981); Doe v. Petro, No. 1:05-cv-125, 2005 WL 1038846, at *1 (S.D.Ohio Oct. 24, 2006)). However, the Court has determined A. Duarte’s asserted liberty interest is not one that is entitled to constitutional protection for A. Duarte or anyone similarly situated.

A. Duarte further asserts that the Magistrate Judge ignored the difference between sex offender “registration” statutes and sex offender “residency” statutes, and thus, ignored the greater intrusion that the residency restriction imposes on A. Duarte (Dkt. # 94 at 7). This is incorrect. Moreover, this distinction between types of statutes is not relevant to the Magistrate Judge’s determination of whether A. Duarte is entitled to procedural due process, but rather, on whether A. Duarte has established a liberty interest meriting constitutional protection. Plaintiffs objection that the Magistrate Judge ignored the distinction between statutes or relied on inapplicable law is overruled.

D. The Magistrate Judge Correctly Found that Moore Does Not Apply

A. Duarte also objects to the Magistrate Judge’s finding that Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), another case heavily relied on by Plaintiff, is inapposite to the present case (Dkt. # 94 at 7-8). A. Duarte cites Moore for the proposition that the Ordinance is unconstitutional because it “not only ’regulates,’ but actually forbids Plaintiff A. Duarte from residing, either alone or with the Family Plaintiffs, ’in a certain location.’ ” Id. However, the Court agrees with the Magistrate Judge that Moore is distinguishable from the present case. First, the liberty interests asserted here versus those asserted in Moore are vastly different. In Moore, the ordinance in question “selects certain categories of relatives who may live together and declares that others may not... [and] makes a crime of a grandmother’s choice to live with her grandson.”- 431 U.S. at 499, 97 S.Ct. 1932. There, the Supreme Court asserted that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause,” and that a number of cases “have consistently acknowledged a “private realm of family life which the state cannot enter.” Id. A. Duarte’s asserted liberty interest here does not implicate the private realm of family life, or “slicet ] deeply into the family itself.” Id. at 498, 97 S.Ct. 1932. Moreover, Moore considered substantive due process, instead of procedural, which A. Duarte explicitly denies he is asserting here. Id. at 503, 97 S.Ct. 1932. Accordingly, Moore does not apply, and Plaintiffs objection is overruled.

E. The Magistrate Judge Did Not Rely on A. Duarte’s “Moderate” Risk Level

A. Duarte again objects that the Magistrate Judge erroneously relied on the assignment of a “moderate” risk level to A. Duarte when finding that A. Duarte’s procedural due process claim be dismissed (Dkt. # 94 at 9). Contrary to A. Duarte’s assertion, the- Magistrate Judge did not rely on A. Duarte’s risk level in making its procedural due process finding, and Plaintiffs objection is overruled.

III. Procedural Due Process (Duarte Family)

The Duarte Family contends that they hold a constitutionally protected liberty interest in residing together as a family with A. Duarte within- the areas in which A. Duarte is prohibited by the Ordinance from residing, i.e., within the bufferzone (Dkt. # 94 at 3). The Duarte Family further argues that before they can be deprived of this constitutionally protected liberty interest, they must be afforded procedural due process. Id. The Magistrate Judge fully addressed the Duarte Family’s claims, finding that the Duarte Family failed to identify what procedure was due, lacking, and/or inadequate (Dkt. #91 at 38-40). It is important to note that the Duarte Family members are not convicted child sex offenders, are not required to register on the Database, and are not prohibited from doing anything by the Ordinance; Id.

The Magistrate Judge further found that the Duarte Family does not have a fundamental right and/or liberty interest in residing wherever they want, including within the buffer zone (Dkt. #91 at 39). As discussed. supra, the ' Magistrate Judge’s finding is bolstered by the recent Supreme (Court decision in Din, in which the Supreme Court stated “[t]here is a simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or .incidentally.” 135 S.Ct. at 2138.. The - Supreme Court further found that there is no such constitutional right to live in the United States with a. spouse. Id. Again, the first question that the Court must answer is whether the Ordinance deprives the Duarte Family of “life, liberty, or property,” and, .after considering the arguments of the. Duarte Family, that answer is “no.” Id. at 132. The Ordinance does not affect the Duarte Family’s legal rights, and does not impose a restraint on their liberties. The Ordinance affects the Duarte Family only incidentally. Accordingly, the Duarte Family’s objection to the Magistrate Judge’s finding regarding procedural due process is overruled.

TV. Conclusion

Having considered each of Plaintiffs’ timely filed objections (Dkt. #94), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions' of the Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt, # 91) as the findings and conclusions of the Court.

Accordingly, it is ORDERED.that Defendant’s Motion for Summary Judgment and . Brief in Support (Dkt. # 70) is GRANTED. Plaintiff A. Duarte’s claims for violations of (1) the Ex Post Facto Clause of Article 1, Section 10 to the United States Constitution; (2) the Double Jeopardy " Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983; and (5) the Due Process Clause of the Fourteenth Amendment are dismissed with prejudice. The Duarte Family’s procedural due process claim and all Plaintiffs’ claims for declaratory judgment "and injunctive "relief are likewise dismissed with prejudice.

All relief not previously granted is DENIED, including specifically Defendant’s Motion to Exclude Plaintiffs’ Designated Expert Phillip David Taylor (Dkt. # 90).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE

Now before the Court is Defendant’s Motion for Summary Judgment and Brief in Support [Dkts. 70-75]. After reviewing the Motion, Response, Reply, and any other relevant filings, the Court recommends that the Motion be GRANTED.

BACKGROUND

Plaintiffs Aurelio Duarte (“A. Duarte” or “Plaintiff’),. Wynjean Duarte (“W. Duarte”), S.D., a minor (“S.D.”), and Brandi Duarte (“B.D.”), bring this suit alleging that the ordinance entitled “Regulation of Child Predator Offender Residency” (the “Ordinance”) enacted by Defendant,, the City of Lewisville (the “City” or “Defendant”), is unconstitutional.

Plaintiffs’ Complaint is comprised of two sets of claims: (1) claims, by Plaintiff A. Duarte himself, and (2) claims by W. Duarte, S.D. and B.D. (the “Duarte Family”) [Dkt. 1 at 7, 9, 10]. The elaims are considered herein in this order. Defendant is a municipal corporation incorporated under the laws of the State of Texas situated in Denton County, Texas, and is a home-rule municipality with the power of self-government as described in Section 51.072(a) of the Texas Local Government Code [Dkt. 70, Ex. 2], Plaintiffs assert that the imposition of a child predator buffer zone, or a restriction on where persons required to register on the Texas Department of Public Safety’s Sex Offender Database because of convictions regarding a minor may live in relation to “premises where children commonly gather,” is a violation of the rights afforded them by and/or through the United States Constitution [see Dkt. 1 at 7, 9,10].

In 2004, Plaintiff A. Duarte was indicted by a Dallas County Grand Jury for the third degree felony offense of Online Solicitation of a Minor, in violation of Texas Penal Code § 15.031 [Dkt. 70, Ex. 3; Dkt. 1 at 3, ¶ A]. On May 19, 2006, A. Duarte was found guilty of that offense, and was sentenced to eight (8) years confinement in the Institutional Division of the Texas Department of Criminal Justice (“TDCJ”), and was placed on community supervision for a term of ten (10) years. Id. On May 31, 2007, the State of Texas filed a motion to revoke A Duarte’s probation or proceed with an adjudication of guilt because A. Duarte violated the conditions of his probation [Dkt. 70, Ex. 3, at 13, 15], On June 5,2007, A. Duarte’s community supervision was revoked by the 282nd District Court of Dallas County, and he was sentenced to a term of confinement of three (3) years in the Institutional Division of the TDCJ [Id. at 17; Dkt. 1 at 4, ¶ B], A. Duarte’s sentence to confinement was fully discharged in June of 2010 [Dkt. 1 at 4, ¶ C], and A. Duarte admits that the Ordinance applies to him because he is required to register as a convicted child “Sex Offender” with the Texas Department of Public Safety [Dkt. 1 at 5, ¶ E], The Duarte Family is not required to register as convicted sex offenders [Dkt. 70 at 33, n. 103].

In May of 2006, A. Duarte was referred to Central Psychological Services for sex offender psychological evaluation and treatment [Dkt. 70, Ex. 16 at 4]. Peter W. Henschel, Ph.D. (“Dr. Henschel”), conducted an evaluation and assessment of A Duarte and recommended treatment [see generally, Dkt. 70, Ex. 16]. A. Duarte was ultimately discharged from treatment for noncompliance. Id. at 21. The TDCJ has developed-risk levels for persons subject to sex offender registration [Dkt. 70 at 7, ¶7]. A. Duarte’s risk level is currently moderate, and-has been since its increase in March of 2009, indicating that he poses a moderate danger to the community and may continue to engage in criminal sexual conduct [Dkt. 70, Ex. 4 at 5-9].

Since his release from prison in June of 2010, A. Duarte is required to annually register in person with the local law enforcement authority where he resides [Dkt. 70, Ex. 4; Ex. 5; Ex. 6 (2012 deposition) at 131:19-21]. The registration requires A Duarte to report, within seven (7) days of a change, information regarding: his name; job status (includes beginning and leaving employment and changing work locations); education status (includes a transfer from one educational facility to another); among other requirements [Dkt. 70, Ex. 4 at 2-3; Ex. 8 at 4, ¶ 14], The failure' to comply with any registration requirement is a felony offense. Since 2010, A. Duarte has- registered as a sex offender with the City of Lewisville until moving to Lake Dallas in 2013, and must annually register for five (5) more years [Dkt. 70, Ex. 4].

Because ‘ of the requirement that A. Duarte register with the Texas Department of Public Safety as a child sex offender, A, Duarte must also comply with the residency restrictions set out in the Ordinance, which states in relevant part:

REGULATION OF CHILD PREDATOR OFFENDER RESIDENCY WHEREAS, the City Council of the City of Lewisville, Texas,, .finds, determines and declares that child predator offenders are a serious, threat to public safety; and,

WHEREAS, the City Council finds and determines that the recidivism rate for released sex offenders is alarmingly high, especially for those who commit their, crimes against children; and, WHEREAS, the City Council finds and determines that establishing a policy to restrict the property available for residence of certain sex offenders will provide better protection for children gathering in the City; and,

WHEREAS, the City Council finds that persons convicted of offenses that involve either physical contact with minors or preparatory steps towards physical contact with minors are a greater risk to the safety of children who gather near areas where such offenders reside; and, WHEREAS, the City Council determines that establishing regulations that restrict certain offenders from residing in areas that are at and near where there is a high concentration of children will provide better protection for children in the City by minimizing immediate access and proximity to children who are at and going to and from schools, parks, and day care centers, and that .this residency restriction will foster the public safety of its citizens; and,

WHEREAS, it is, the. determination :by the City Council that every effort should be made to protect its citizens from harm at the hands of certain sex offenders, and that, the City’s children are worthy of protection to the greatest extent afforded under the law;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LEWISVILLE, TEXAS, THAT:

SECTION 1. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein.

SECTION 2. The Lewisville City Code is hereby amended by adding a new section, which shall read as follows:

ARTICLE 1. REGULATION OF SEX OFFENDER RESIDENCY

Sec. 1. Definitions. For the purpose of this article, the following terms-, words and the derivatives thereof shall have the meanings given below:

Premises where children commonly gather. Includes all improved and unimproved areas on the lot where a public park, public playground, private or public school, public" or semi-public swimming pool, public or non-profit recreational facility, day care center or video arcade facility is located, as those terms are or may be defined in Section 481.134 of the Texas Héalth and Safety Code, as amended. For purposes of this article, landscaped street medians are not public parks.

Sec. 2. Offenses. It is unlawful for a person to establish a permanent or temporary residence within 1,500 feet of any premises where children commonly gather if the person is required to register on the Texas Department of Public Safety’s Sex . Offender -Database (the ’Database’) because of conviction(s) involving a minor. ■

Lewisville Code of Ordinance, Ord. No. 3533-01-2008, enacted January 28, 2008 [Dkt. 70, Ex. 1]. Thus, the Ordinance prohibits a person who is required to register on the Texas Department of Public Safety’s Sex Offender Registry because of a conviction involving a minor from residing within 1,500 feet of a school,-park, day care center, public or semi-public swimming pool, or other area where children commonly gather, as specifically defined by the Ordinance.

Both Parties seemingly agree Plaintiffs have deep roots in the City of Lewisville, and desire to live there as a family [Dkt. 1 at 4, ¶ C; Dkt. 70 at 9, ¶ 15]. In part due to the Plaintiffs’ deep roots, prior to A. Duarte’s release from prison W. Duarte began communicating with City representative Leslie Peck (“Ms. Peck”), the sex offender registrar in the Criminal Investigation. Section of the Lewisville Police Department, to assist her and A. Duarte with finding available housing for their family that complied with the Ordinance [Dkt. 70, Ex. 7; Ex. 13 (2015 deposition) at 13:8-10]. It is not disputed by any Party that Plaintiffs sought to purchase or lease a residential premises in the City of Lewisville. W. Duarte contacted Ms. Peck from 2009 through March 12, 2013, and made approximately nine (9) inquiries involving approximately thirteen (13) residences [Dkt 70, Ex. 7].

Chronologically, the Court has ascertained that W. Duarte contacted Ms, Peck and inquired about the following residential properties: (1) On February 22, 2010, W. Duarte -inquired with the City about 120 Ridgeway Circle, and was told it was a “NO,” meaning that residence was within a protected zone and A. Duarte could not reside there [Dkt. 70, Ex. 7 at 9-11]; (2) On March 31, 2010, W. Duarte inquired about 449 Edwards, and was informed that all of Edwards Street was within a protected area [Id. at 13]; (3) On April 23, 2010, W, Duarte inquired about 1006 Kingston, 1019 Woodmere, 1201 Kingston, and 915 Boxwood Drive, and was told that all of those addresses were a “NO”; however, Ms. Peck.also informed W, Duarte that “if you go further down the street towards Kingston those are okay,” and “some,of the houses in the 14 and 1500 block of Kingston are okay, but you have to check on each house because one could be okay and then the one next door' not” [Id. at 14-15]; (4) On April 26, 2010, W. Duarte requested that- Ms. Peck check on 1610 Kingston, and was told that the residence was a “NO” [Id. at 18]; (5) On May 12, 2010, W. Duarte inquired about 1102 Eastwood Drive, and was told “1102 Eastwood Dr. is OK” [Id. at 20]; (6) On February 25, 2011, W. Duarte checked with Ms. Peck to see if 603 Northside was within a protected zone, and Ms. Peck confirmed that it was within a protected area [Id. at 5]; (7) On August 30, 2011, W. Duarte inquired about 660 Pine Street, and was informed on the following day that this residence was not in a protected zone, and A. Duarte could reside there [Id. at 4]; (8) On January 17, 2013, W. Duarte inquired about 650 Northside Avenue, and was told that this address was a “YES” [Id. at 3]; and (9) On March 12, ¡2013, W. Duarte inquired about 651 Pine, which was a “YES,” and 519 Ferguson, which was a “NO.” Id. at 1. A. Duarte and W. Duarte indicated that they attempted to purchase two of the homes outside the protected zone, but the homes were purchased before they could do so [Dkt. 70, Ex. 13 (2012 deposition) at 32:22-25; Dkt. 70, Ex. 7 at 23].

From approximately 2010 through 2013, A. Duarte and his family resided at 324 E. Corporate Drive, Lewisville, Texas, in a one bedroom motel room [Dkt. 70, Ex. 5 at 2, 8; Ex. 6 (2012 deposition) at 138:4-7; Ex. 8 at ¶ 12]. At the time the Duarte family moved into the motel room it was not located within a buffer zone; however, it is now within a buffer zone due to the construction of a new public or semi-public swimming pool [Dkt. 70, Ex. 8 at 4, ¶ 12]. See also Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514, 516 (5th Cir. 2014). Because the Plaintiffs established their residence there before the opening of the pool, Plaintiffs could continue to lawfully reside there as the residence was considered “grandfathered” under the Ordinance. Id. -Notwithstanding, Plaintiff contends that due to the City’s Ordinance, he was, and continues to be, “legally foreclosed” from living in Lewisville [Dkt. 1 at 5 ¶ F].

As of June 5, 2015, there were 495 residential properties outside the buffer zones that a registered child sex offender could legally reside in within the City of Lewisville [Dkt. 70, Ex. 8 at 1 ¶ 4]. Neither party has presented the Court with any evidence of exactly how many residential properties (for purchase or rent) were available outside the protected zones that a registered child sex offender could legally reside in at the time Plaintiffs filed their Complaint on or about March 26, 2012, and/or during the time frame of 2009-2013, when W. Duarte made inquiries. The Court has, however, been provided evidence by. the City that between 2010 . and April 2015, there were ninety-two (92) housing units sold, and thirty-six (86) housing units leased outside the Ordinance buffer zones [Dkt. 70, Ex. 12 at 2, ¶ 8]. And further that there were housing units available for sale and/or lease outside the Ordinance buffer zones in each year between 2010 and 2015, and that such residential units were available for a variety of time frames ranging from several weeks to ten (10) months. Id. The available residences are represented to include a wide range of housing for all income levels [Dkt. 70 at 9, ¶ 13; Dkt. 70, Ex. 8 at 2, ¶ 5].

Plaintiffs assert that the U.S. Census Bureau reports that in 2010, the City of Lewisville had 39,967 residential housing units within its city limits and that the City had a total population of 95,210 residents [Dkt. 84 at 7, ¶1]. Of the total 39,967 residential housing units in the City of Lewisville, Texas in November of 2012, Plaintiff states that only eight (8) residential properties were legally available for purchase and only two (2) were available for lease [Dkt. 84 at 7, ¶ J]. Plaintiffs contend these ten (10) total properties constituted .025 percent of the total number of residential properties in Lewisville, Texas, at that time [Dkt. 84 at 8, ¶ K].

On or around August of 2013, the Duartes moved to Lake Dallas, Texas [Dkt. 70, Ex. 6 (2015 deposition) at 5:3-13; Ex. 5 at 15]. While Plaintiffs‘no longer live in Lewisville, Texas, it is undisputed that they continue to visit, work, shop, and attend school in Lewisville frequently [Dkt. 70, Ex. 6 (2015 deposition) at 13:24-14:13]. Indeed, Plaintiffs are “constantly in Lewisville,” and visit W. Duarte’s mother as a family at least every week, who resides in Lewisville inside a buffer zone [Dkt. 70, Ex. 6 (2015 deposition) at 14:3-13]. Both W. Duarte and B.D. work at Sears in. Lewisville, and S.D. attends school at Lewisville High School and works at Raising Cane’s restaurant in Lewisville after school [Dkt. 70, Ex. 13 (2015 deposition) at 27:13-23; Ex. 15 at 5:11-14, 6:1-5, 7:17-19]. The Duartes describe themselves as very close, and state that their relationship has not been affected by this lawsuit or the Ordinance [Dkt. 70, Ex. 13 (2015 deposition) at 29:10-16, 28:16-17; Ex. 6 (2015 deposition) at 7:21-8:17; Ex. 14 at 10:9-19, 14:2-11; Ex. 15 at 9:19-22, 10:1-14].

Procedurally, this case was filed on March 26, 2012 [Dkt. 1], and the City moved for dismissal based on lack of standing under Federal Rule of Civil Procedure 12 [Dkt. 6]. On October 23, 2012, the Court dismissed W. Duarte, S.D., and B.D.’s claims for lack of standing [See Dkt. 18; Dkt. 20]. Later, the City moved for summary judgment on A. Duarte’s claims, and the Court found that there was no genuine dispute of material fact that A. Duarte lacked standing to challenge the Ordinance [Dkt. 26; Dkt. 50; Dkt. 53]. On July 3, 2013, the Court entered a final judgment dismissing Plaintiffs’ claims with prejudice [Dkt. 54].

On July 24, 2013, Plaintiffs timely appealed [Dkt. 55] See Duarte, 759 F.3d at 516. The Fifth Circuit reviewed the decision to dismiss for -lack, of standing de novo, and determined that (1) A. Duarte suffered an actual injury because he. “is the target of the Lewisville ordinance restricting where registered child sex offenders, like him, can live” and; (2) W. Duarte, S.D., and B.D. also have standing to challenge the ordinance because it “interferes with the Duartes’ lives ‘in a concrete and personal way’ which the Supreme Court has held is .sufficient to confer standing,” Id. at 518-19. The Fifth Circuit found .that “the Duartes need not show they were ’legally foreclosed from purchasing or leasing residential premises due solely to the... City of Lewisville,” ... [but] need only show that the ordinance treats them differently from other would-be renters or homebuyers making it ’differentially more burdensome ’ for the Duartes to find a new place to live for standing purposes.” Id. at 520. The Fifth Circuit noted that they expressed no opinion on whether the Duartes could ultimately show a constitutional injury to merit an award of damages or injunctive relief. Id. The Fifth Circuit also found that the Duartes met the traceable and redressable requirements of standing, and that the Duartes’ constitutional claims were not moot since the Duartes asserted a claim for compensatory and nominal damages. Id. at 521. Accordingly, the Fifth Circuit reversed this Court’s decision and remanded the case for further proceedings. Id. at 522.

On June 5, 2015, the City filed its Motion for Summary Judgment and Brief in Support [Dkts. 70-75] seeking summary judgment on all claims. On July 7, 2015, Plaintiffs filed their Response [Dkt. 84]. On July 17, 2015, the City filed its Reply [Dkt. 89],

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247, 106 S.Ct. 2505. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the non-movant’s case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The Court must consider all of the evidence but refrain from making any credibility determinations or weighing the evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007).

ANALYSIS

Plaintiff A. Duarte seeks monetary damages, declaratoiy and injunctive relief, and recovery of fees against the City for alleged violations of: (1) the Ex Post Facto Clause of Article 1, Section 10 of the United States Constitution; (2) the Double Jeopardy Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983; and (5) the Due Process Clause of the Fourteenth Amendment [Dkt. 1]. W. Duarte, S.D., and B.D. also assert a procedural due process claim, and seek damages, injunctive and declaratory relief, and fees. Id. In its Motion, the City seeks summary judgment as a matter of law against Plaintiffs on all claims because, the City asserts, Plaintiffs “have not shown a deprivation of any constitutional right, A. Duarte is not a member of a protected class, and the City’s child predator buffer zone ordinance is a non-punitive civil regulatory scheme that is rationally related to the significant government interest of protecting children” from recidivist sex offenders [Dkt. 70 at 1].

In 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act was enacted. 42 U.S.C. § 14071. By 1996, every state, the District of Columbia, and the federal government responded by enacting a registry statute for those convicted of crimes against children and/or various sexual offenders. Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The United States Supreme Court has addressed these sex offender registry statutes and ruled that they are civil regulatory schemes designed to protect the public. Id. at 93, 123 S.Ct. 1140. The imposition of such measures is a “legitimate nonpuni-tive governmental objective.” Id.

In addition to the sex offender registry statutes, by 2008, many Texas cities, like Lewisville, had enacted residency restrictions for those persons registered as a sex offender with the Texas Department of Public Safety. See, e.g., Plano City Code Sec. 14-123 (2006); City of Arlington Ord. No. 7-079 (2006); City of Mesquite Ord. No. 3809 (2006); City of Richland Hills Ord. No. 1064-06 (2006); City of Saginaw Ord. No.2007-20 (2007); City of West Orange Ord. No. 35 (2006); City of League City Ord. Np.2006-81 (2006). It is the Lewisville Ordinance imposing the residency restrictions that is at issue in this case.

A. Defendant’s Evidentiary Objections

As an initial matter, in its Reply, the City objects to certain exhibits to Plaintiffs’ Response. Specifically, Defendant objects to Plaintiffs’ Exhibit 1 (and its subparts) [Dkt. 84, Ex. 1], pursuant to Federal Rule of Evidence 801(c) as inadmissible hearsay in the form of expert designation [Dkt. 90]. Plaintiffs’ Exhibit 1 consists of three conclusions by Plaintiffs’ proffered expert, Dr. Taylor, regarding the effectiveness of sex offender residency restrictions in reducing recidivism and promoting the safety of the community, and also includes Taylor’s curriculum vitae and an annotated bibliography relied upon by Taylor [Dkt. 84, Ex. 1]. The Fifth Circuit has found that “[ujnsworn expert reports do not qualify as affidavits or otherwise admissible evidence for the purpose of Rule 56, and may be disregarded" by the court when ruling on a motion for summary judgment.” Provident Life & Accident Ins. Co. v. God 274 F.3d 984, 1000 (5th Cir.2001); see also Queen Trucking, Inc. v. General Motors Corp., No. 1:06-cv-052-C, 2007 WL 4458919, at *1 (N.D.Tex. June 8, 2007) (striking unsworn expert report from "summary judgment record). Accordingly, the Court finds that Defendant’s objection is SUSTAINED, and Plaintiffs’ Exhibit 1 is hereby STRICKEN from the record as hearsay.

Defendant also objects to Plaintiffs’ Exhibit 2 [Dkt. 84, Ex. 2], which Defendant describes as a document made by W. Duarte a week before her deposition at the request of Plaintiffs’' counsel listing the homes that W. Duarte allegedly spoke to Ms. Peck about [Dkt. 89]. Defendant objects under Federal Rules of Evidence 612 and 803(5) on' the basis that the document constitutes “impermissible past recollection recorded and present recollection revived” [Dkt. 89 at 10]. Notably, however, Plaintiffs’ Exhibit 2 is the affidavit of W. Duarte, and not a listing of homes as allegéd by Defendant. W. Duarte’s affidavit, which is based on her personal knowledge, is admissible summary judgment evidence under Federal Rule of Civil Procedure 56, and, as such, Defendant’s objection to Plaintiffs’ Exhibit 2 is OVERRULED.

B. A. Duarte’s Claims

1. Violations of the Ex Post Facto Clause

A. Duarte alleges that the Ordinance violates the Ex Post Facto Clause by subjecting him to, additional or “retroactive” punishment following his 2008 conviction for Online Solicitation of a Minor [Dkt. 1 at 15]. “The Ex Post Facto Clause of Article I, Section 10 of the Constitution prohibits the States from enacting laws that increase punishment for. criminal acts after they have been committed.” Doe v. Miller, 405 F.3d 700, 718 (8th Cir.2005) (citing, generally, Colder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, 39 (1798)). The framework for determining whether a statute. imposes an increased punishment for crimes in violation of the Ex Post Facto Clause is set out by the Supreme Court in Smith v. Doe, 538 U.S. 84, 92-93, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The Court must first “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings,” or if the legislature intended to impose punishment. Id. at 92, 123 S.Ct. 1140. “If the intention of the legislature was to impose punishment, that ends the inquiry,” and the law is necessarily unconstitutional. Id. If, however, the “intention was to enact a regulatory scheme that is civil and nonpunitive, [the Court] must further examine whether the statutory scheme is ’so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because the Court ordinarily defers to the legislature’s stated intent, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id.; Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); see also Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984).

Whether a statute is civil or criminal in nature is a question of statutory construction. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938). A statute’s intent is discerned by looking first at the-words of the statute, and “[i]f its words are clear and unambiguous, ‘then our interpretative journey comes to an end, and we apply that plain meaning to the facts, before us.’ ” Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (2001) (citing United States v. Barlow, 41 F.3d 935, 942 (5th Cir.1994)). The Ordinance itself includes findings — the “WHEREAS” paragraphs — which acknowledge that public safety and protection of the City’s most vulnerable citizens, its children, are the primary goals of the child sex offender residency requirement [Dkt. 70, Ex. 1 at 1-2 (“[T]he City Council of Lewisville, Texas, finds, determines and declares that child predator offenders are a serious threat to public safety; and ... the City Council determines that establishing regulations that restrict certain offenders from residing in areas that are at and near where there is a high concentration of children will provide better protection for children in the City...]. This express, plain language indicates that the City of Lewisville sought to create a civil, and not criminal, remedy. Id. Plaintiffs do not dispute this fact [Dkt. 84 (which does no