Brown v. Tarrant Cnty.

• Decision Date: 18 January 2021
• Docket Number: No. 19-10594,19-10594
• Citation: Brown v. Tarrant Cnty., 985 F.3d 489 (5th Cir. 2021)
• Parties: Clarence D. BROWN, Plaintiff—Appellant, v. TARRANT COUNTY, TEXAS; Dee Anderson, Individually, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

985 F.3d 489

Clarence D. BROWN, Plaintiff—Appellant,

v.TARRANT COUNTY, TEXAS; Dee Anderson, Individually, Defendants—Appellees.

No. 19-10594

United States Court of Appeals, Fifth Circuit.

FILED January 18, 2021

Clarence D. Brown, Littlefield, TX, Pro Se.

Melvin Keith Ogle, Esq., District Attorney's Office for the County of Tarrant, Fort Worth, TX, for Defendants-Appellees.

Before Clement, Ho, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Clarence Brown is a civilly committed sexually violent predator under Texas law.

In his third appeal in this case, he challenges the district court's dismissal of his § 1983 claims against Tarrant County and its former sheriff, Dee Anderson, based on Brown's twenty-day confinement in a county jail during which he did not receive sex offender treatment.Because Anderson is entitled to qualified immunity and because Brown states no claim against the county, Brown's claims were properly dismissed.Additionally, the district court did not abuse its discretion in denying Brown's motions to amend his complaint and to appoint counsel.Accordingly, we AFFIRM.

I

Our previous opinions in this case detail Brown's challenges to certain conditions of his civil confinement under the Texas Sexually Violent Predator Act ("SVPA" or "Act"),TEX. HEALTH & SAFETY CODE ANN . §§ 841.001 –.153(West 2019).See generallyBrown v. Taylor , 911 F.3d 235, 239–42(5th Cir.2018)(" Brown II ");Brown v. Taylor , 829 F.3d 365, 367–68(5th Cir.2016)(" Brown I ");see alsoIn re Commitment of Fisher , 164 S.W.3d 637, 645–56(Tex.2005)(upholding constitutionality of original SVPA).To summarize briefly: In 1998, Brown was convicted in Texas state court of one count of aggravated assault on a peace officer and three counts of sexual assault and sentenced to fifteen years’ imprisonment.Brown II , 911 F.3d at 240.Before Brown's anticipated release in October 2011, the state initiated civil commitment proceedings against him under the SVPA.Id.After a jury proceeding, the trial court ordered Brown civilly committed in November 2010, and the judgment was affirmed on appeal.Id.

The version of the SVPA relevant here required civilly committed persons to "reside in a Texas residential facility under contract with the [Texas Office of Violent Sex Offender Management(OVSOM)]" or another approved location and to participate in OVSOM-provided "treatment and supervision."¹The Act made the OVSOM "responsible for providing ... treatment and supervision" and "enter[ing] into appropriate memoranda of understanding for any necessary supervised housing," while directing that the case manager, an OVSOM employee or contractor, would "provide supervision" and "coordinate ... outpatient treatment and supervision."²

In keeping with these requirements, Brown's November 2, 2010, commitment order provided he would "reside in supervised housing at a Texas residential facility under contract with" or approved by the Council on Sex Offender Treatment("Council"), the OVSOM's predecessor.³Additionally, Brown was ordered to comply with the "treatment provided by the Council" as well as the Council's other written requirements, and Brown's case manager was ordered to "provide treatment and supervision" to Brown.The order also notified Brown he could be charged with a third-degree felony for failing to comply with the SVPA's commitment requirements.⁴

Brown alleges he was initially committed to a facility in El Paso and then transferred to a facility in Fort Worth in March 2012.During intake processing at the Fort Worth facility, Brown did not sign certain forms acknowledging and agreeing to the facility's rules.This incident led to his arrest, indictment for violating the terms of his commitment, and confinement at the Tarrant County Jail as a pre-trial detainee.

Brown posted bond on September 13, 2012.He was then transferred to the Cold Springs Jail, where Sheriff Dee Anderson agreed to confine Brown on receiving his commitment order, pursuant to a Memorandum of Understanding ("MOU") with the Council.The MOU stated that Tarrant County would provide "housing, meals, and other usual services to [Council] clients" in the Tarrant County Adult Detention System Work Release Program.Meanwhile, the Council would bear responsibility for "obtaining and paying for all programs it require[d] for its clients" and for supervising them outside the Tarrant County program.⁵

Although Brown was acquitted of violating his commitment terms on October 3, 2012, he remained at the Cold Springs Jail for more than a month before being transferred to a Houston facility.Brown did not receive sex offender treatment during the twenty-day period he was confined at Cold Springs between his posting bond and his acquittal.Brown II , 911 F.3d at 241.Treatment resumed after his acquittal.Id.

Brown filed a pro se complaint challenging the conditions of his confinement under 42 U.S.C. § 1983.Id. at 239.He originally sued multiple defendants in their individual and official capacities, including Sheriff Anderson and Tarrant County.Id. at 242.Although we previously affirmed the dismissal of claims against most of these defendants, we vacated the dismissal of Brown's claims against Anderson and the county.Id. at 241–42, 247.⁶

In reviewing Brown's first amended complaint, we concluded Brown had stated a due process claim against Anderson and Tarrant County.Id. at 244.Based on the allegation that Brown "received no sex offender treatment while being held after posting bond," which the state of Texas conceded,⁷we held Brown had "sufficiently alleged" that "his post-bond confinement at the Cold Springs Jail was not reasonably related to supervision and treatment," which we said represented a "cognizable due process claim."Id.(citingSeling v. Young , 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734(2001) ).We also held Brown's claims were cognizable against Anderson because Anderson "agreed to confine him within Anderson's facility," and thus cognizable against Tarrant County because Anderson was its sheriff.Id.(cleaned up).However, we found Brown had not stated a claim for his post-acquittal confinement at the Cold Springs Jail because the state"resumed providing him with sex offender treatment" after his acquittal and "permitted him to leave Cold Springs Jail pursuant to his supervision level."Id. at 245.We also vacated the district court's denial of leave to amend Brown's first amended complaint.Id. at 247.

On remand, the district court granted Brown leave to file a second amended complaint, and Anderson and Tarrant County were served for the first time.Shortly thereafter, they filed a joint motion to dismiss, which the district court granted based on Anderson's entitlement to qualified immunity and Brown's failure to state a municipal liability claim against Tarrant County.The district court also denied Brown's motions for appointment of counsel and for leave to file a third amended complaint.This appeal followed.

II

We review de novo a Rule 12(b)(6) dismissal for failure to state a claim.Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc. , 892 F.3d 719, 726(5th Cir.2018)."To survive a motion to dismiss, a complaint must contain sufficient factual matter which, when taken as true, states ‘a claim to relief that is plausible on its face.’ "Id.(quotingBell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007) ).Pro se complaints receive a "liberal construction."Carlucci v. Chapa , 884 F.3d 534, 538(5th Cir.2018)(citingEstelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251(1976) ).Even so, "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue."United States v. Woods , 870 F.2d 285, 288 n.3(5th Cir.1989)(per curiam)."Under our precedent, we may ‘affirm on any ground supported by the record,’ ... so long as the argument was raised below."Gilbert v. Donahoe , 751 F.3d 303, 311(5th Cir.2014)(citations omitted).

III

Brown's pro se appeal argues the district court erred by (1) holding Anderson was entitled to qualified immunity; (2) concluding Brown failed to state a municipal liability claim against Tarrant County; (3) denying Brown's motion to file a third amended complaint; and (4) denying Brown's motion to appoint counsel.We address each issue in turn.

A

Government officials like Anderson enjoy qualified immunity "unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct."Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149(2011);see alsoArnold v. Williams , 979 F.3d 262, 267(5th Cir.2020).We"have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first."Seeal-Kidd , 563 U.S. at 735, 131 S.Ct. 2074(citingPearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565(2009) ).

Anderson asserts a qualified immunity defense to Brown's claim that Anderson held him in the Cold Springs Jail under conditions that violated due process.We choose to resolve Brown's claim at step two of the qualified immunity analysis,⁸ finding that the asserted right was not "clearly established" at the time of Anderson's conduct.

The precise question we must answer is "whether a reasonable officer could have believed [his conduct] to be lawful, in light of clearly established law and the information the officer[ ] possessed."Keller v. Fleming , 952 F.3d 216, 225(5th Cir.2020)(quotingAnderson v. Creighton , 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523(1987) )(cleaned up)."[W]e must frame the [clearly established law question] with specificity and granularity,"Morrow v. Meachum , 917 F.3d 870, 874–75(5th Cir.2019), for "[t]he dispositive question is whether the violative nature of particular conduct is...