Brown v. Taylor

• Decision Date: 12 December 2018
• Docket Number: No. 16-11644,16-11644
• Citation: 911 F.3d 235
• Parties: Clarence D. BROWN, Plaintiff-Appellant, v. Allison TAYLOR, in Her Official and Individual Capacity as Executive Director, Office of Violent Sex Offender Management; Diana Lemon, in Her Official and Individual Capacity as Program Specialist/Case Manager Office of Violent Sex Offender Management; Brian Costello, in His Official and Individual Capacity as President, Avalon Correctional Services, Incorporated; Greg Basham, in His Official and Individual Capacity as Facility Administrator, Avalon Correctional Services, Incorporated; Carlos Morales, in His Official and Individual Capacity as Facility Administrator, Avalon Correctional Services, Incorporated; Tarrant County; Montgomery County; David Crook, in Official and Individual Capacity as Agents of the Texas Department of Public Safety; Manuel Sanchez, in Official and Individual Capacity as Agents of the Texas Department of Public Safety; Josh Burson, in Official and Individual Capacity as Agents of the Texas Department of Public Safety, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

911 F.3d 235

Clarence D. BROWN, Plaintiff-Appellant,

v.Allison TAYLOR, in Her Official and Individual Capacity as Executive Director, Office of Violent Sex Offender Management; Diana Lemon, in Her Official and Individual Capacity as Program Specialist/Case Manager Office of Violent Sex Offender Management; Brian Costello, in His Official and Individual Capacity as President, Avalon Correctional Services, Incorporated; Greg Basham, in His Official and Individual Capacity as Facility Administrator, Avalon Correctional Services, Incorporated; Carlos Morales, in His Official and Individual Capacity as Facility Administrator, Avalon Correctional Services, Incorporated; Tarrant County; Montgomery County; David Crook, in Official and Individual Capacity as Agents of the Texas Department of Public Safety; Manuel Sanchez, in Official and Individual Capacity as Agents of the Texas Department of Public Safety; Josh Burson, in Official and Individual Capacity as Agents of the Texas Department of Public Safety, Defendants-Appellees.

No. 16-11644

United States Court of Appeals, Fifth Circuit.

FILED December 12, 2018

Martine E. Cicconi, Ze-wen Julius Chen, Akin Gump Strauss Hauer & Feld, L.L.P., Washington, DC, for Plaintiff-Appellant.

Wesley Lunkley, Office of the Attorney, General Financial Litigation & Charitable Trusts Division, Richard Huntpalmer, Office of the Attorney General for the State of Texas, Austin, TX, for Amicus Curiae Office of Attorney General.

Before JOLLY, ELROD, and WILLETT, Circuit Judges.

PER CURIAM:

Clarence Brown filed a pro se complaint under 42 U.S.C. § 1983, seeking damages for his mistreatment at various civil commitment facilities and a county jail. In 2016, we vacated the district court’s sua sponte dismissal of Brown’s complaint and remanded. Brown now appeals yet another sua sponte dismissal, as well as the denial of leave to further amend his complaint. For the following reasons, we AFFIRM in part, VACATE in part, and REMAND.

I.

A.

Because this case concerns Brown’s civil commitment under the Texas Sexually Violent Predator Act (SVPA) between 2011 and 2012, we begin by briefly explaining the SVPA’s background.

In 1999, the Texas Legislature created a civil commitment scheme to ensure "the long-term supervision and treatment" of "a small but extremely dangerous group of sexually violent predators" with "a behavioral abnormality ... that makes [them] likely to engage in repeated predatory acts of sexual violence." Tex. Health & Safety Code Ann. § 841.001 (West 2017). The SVPA required civilly committed persons to "reside in a particular location" and undergo "outpatient treatment and supervision" coordinated by the Texas Office of Violent Sex Offender Management (OVSOM). Sexually Violent Predator Act, 76th Leg., R.S., ch. 1188, § 4.01, secs. 841.081 and 841.082, 1999 Tex. Sess. Law Serv. Ch. 1188 (West) (amended 2003, 2015) (current version at Tex. Health & Safety Code Ann. §§ 841.081, 841.082 ). Moreover, those individuals needed to comply with the "specific course of treatment" provided by the office. Id. § 4.01, sec. 841.082(a)(4). Failure to comply with this requirement was punishable as a third-degree felony.¹ Id. § 4.01, sec. 841.085(a).

The Supreme Court of Texas upheld the constitutionality of the original SVPA in In re Commitment of Fisher , 164 S.W.3d 637 (Tex. 2005). The court highlighted that the SVPA was less restrictive than other states’ schemes as it permitted civilly committed persons "to live at home with their families." Id. at 652. Although the court had concerns with the "severe criminal penalties" for violations, it concluded that the SVPA’s civil commitment scheme was "rationally connected" to the non-punitive purposes of supervision and treatment of civilly committed persons. Id. at 652, 656.

After the Fisher decision, the Texas Legislature amended the SVPA to require civilly committed persons "to reside in a Texas residential facility under contract" and to comply with "all written requirements imposed by a case manager." Act of June 17, 2011, 82d Leg., R.S., ch. 1201, § 8 (amended 2015) (current version at Tex. Health & Safety Code Ann. §§ 841.082(a)(1), (a)(4) ); see also Wilson v. Office of Violent Sex Offender Mgmt. , 584 F. App'x 210, 212 (5th Cir. 2014). The Texas Legislature, however, detected several problems with the operation of the SVPA. First, OVSOM’s "[h]orrible mismanagement" of supervision, treatment, and contractors led to a "growing crisis." See Mitchell v. State , 473 S.W.3d 503, 508 (Tex. App.—El Paso 2015) (alteration in original) (quoting S. Comm. on Crim. J. Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015) ). Second, the possibility of "federal court intervention" to examine the punitive nature of certain conditions of confinement "was not insignificant." Id.

In 2015, "to ensure the continued constitutionality of the Texas civil commitment program," the Texas Legislature overhauled the SVPA. Id. The SVPA no longer mandates confinement but simply "requir[es] the person to reside where instructed by the office ." Tex. Health & Safety Code Ann. § 841.082(a)(1) (West 2017) (emphasis added). A new agency, Texas Civil Commitment Office, has replaced OVSOM to oversee supervision and treatment of committed persons. Tex. Health & Safety Code Ann. § 841.007 (West 2015). The new SVPA has also "decriminalized the failure to participate in and comply with a civil commitment treatment program." Vandyke v. State , 538 S.W.3d 561, 569 (Tex. Ct. Crim. App. 2017) ; Tex. Health & Safety Code. Ann. § 841.085 (West 2015) (limiting criminal prosecution to violations of four specific subsections of § 841.082 ). We have not been asked to weigh in on the constitutionality of the new SVPA as Brown does not bring a facial challenge to the new statute.² Instead, our inquiry is limited to Brown’s specific claims regarding his confinement at two contractor-run facilities and a county jail from 2011 to 2012 under the prior SVPA.

B.

We recounted the following regarding Brown’s civil commitment in the previous appeal:

[In 1998,] Clarence Brown was convicted in Texas state court of one count of aggravated assault on a peace officer and three counts of sexual assault, and was sentenced to fifteen years in prison. Before Brown was released from prison [in October 2011], the state initiated civil commitment proceedings against him under [the SVPA]. A jury found that he had a behavioral abnormality that made him "likely to engage in a predatory act of sexual violence," and the trial court entered a final judgment ordering Brown civilly committed. In re Commitment of Brown , No. 09-10-00589-CV, 2012 WL 4466348, at *1 (Tex. App.—Beaumont Sept. 27, 2012). The order was affirmed on appeal. Id.

Brown v. Taylor , 829 F.3d 365, 367 (5th Cir. 2016).

Brown has alleged the following facts in his first amended complaint.³ Pursuant to the civil commitment order, OVSOM placed Brown at a facility in El Paso operated by Avalon Correctional Services, Inc. According to Brown, "[t]he El Paso facility [was] surrounded by razor wire" and "equipped with surveillance cameras." Moreover, Brown alleges, the civilly committed residents were housed with prisoners and parolees and subject to "daily random searches" and property restrictions. Brown filed several complaints with Avalon’s home office about confiscation of property, "squalid living conditions," "harassment from staff members and prisoners/parolees," and inadequate grievance procedure.

On March 8, 2012, Brown was transferred to a different Avalon facility in Fort Worth, which "operate[d] very similar[ly] to the El Paso facility." During in-processing on the next day, the facility staff informed Brown that he needed to sign certain forms acknowledging and agreeing to the facility’s rules. Unsure how the rules applied to civilly committed residents, as compared to prisoners or parolees, Brown sought clarification before signing the forms. A case manager, Clemmy Washington, advised him over the phone to "hold on" as "he would be there shortly to go over the rules." While Brown awaited, Facility Director Greg Basham directed a staff member over the phone to instruct Brown to sign the forms "right then and there." Brown continued to wait and "mentioned filing a lawsuit against Avalon in El Paso concerning the same rules."

When Washington arrived, he explained that Basham "had called [the Avalon home office] and rejected [Brown] from his facility...." The facility staff subsequently informed Brown that he would be arrested for his failure to sign the forms. While Brown was packing, Basham approached him and "began yelling and screaming that he would not tolerate [Brown] causing problems at his facility, like he did in El Paso," "that he had been contacted by people in El Paso that [Brown] would be a problem, and that [Basham] would not tolerate [Brown] contacting [Avalon’s home office] under [any] circumstances." Brown was soon arrested, indicted for violating the terms of his commitment, and confined at the Tarrant County Jail as a pre-trial detainee.

After six months in the Tarrant County Jail, on September 13, 2012, Brown posted bond. Instead of releasing Brown to a residential facility, however, Tarrant County Sheriff Dee Anderson transferred him to the Cold Springs Jail. Brown alleges—and the state concedes—that he was not provided sex offender counseling treatment at the Cold Springs Jail until he was acquitted. See ROA.100–07, 504; Oral Argument at 30:46–31:13; 37:25–39:33, Brown v. Taylor (No. 16-11644).

When Brown was eventually acquitted of violating the terms of the commitment order on October 3, 2012, he was not immediately released from the Cold Springs Jail. Brown alleges that Washington "conveyed to [him] that he would continue to remain in the Cold Spring Jail until [he] learned to quit filing grievances and lawsuits." During this time, although Brown was permitted to attend sex offender treatment, he was otherwise treated as an inmate. Over a month...