Richards v. Taylor

• Decision Date: 11 September 2015
• Docket Number: CIVIL ACTION NO. H-13-1394
• Parties: JAMES RICHARDS, Plaintiff, v. ALLISON TAYLOR, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

JAMES RICHARDS, Plaintiff, v. ALLISON TAYLOR, et al., Defendants.

CIVIL ACTION NO. H-13-1394

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

September 11, 2015

MEMORANDUM AND ORDER

Pending is Defendants Taylor's and McLane's Motion to Dismiss Pursuant to Federal Rules 12(b)(1) and 12(b)(6) (Document No. 179). For the reasons that follow, the motion will be granted in part and otherwise denied.

I. Background

Pro se Plaintiff James Richards ("Plaintiff") was adjudicated a sexually violent predator ("SVP") under the Texas Civil Commitment of Sexually Violent Predators Act ("SVP Act") and civilly committed to the supervision of the State of Texas, Office of Violent Sexual Offender Management ("OVSOM").¹ Plaintiff pleads that he is confined at a halfway house at the Southeast Texas Transitional Center ("STTC") in Houston, Texas, while receivingtreatment for his behavioral abnormality, and that the terms of his supervision and treatment at STTC, as imposed and implemented by Defendant Allison Taylor ("Taylor") and others, violate his civil rights.²

Taylor was the Executive Director of the OVSOM when Plaintiff filed this suit, and Plaintiff alleged claims against Taylor in both her individual and official capacities.³ In May 2014, Taylor was succeeded by Defendant Marsha McLane ("McLane," and together with Taylor, "Defendants"), and McLane, in her official capacity, was substituted for Taylor in her official capacity, such that Plaintiff's official capacity claims against Taylor are now claims against McLane.⁴

Plaintiff alleges the following claims against both Taylor in her individual capacity and McLane in her official capacity:

Count I: Denial of substantive due process based on punitive and preventative detention in "overall implementation" of the SVP Act.⁵

Count II: Denial of substantive due process based on inhumane treatment in "overall implementation" of the SVP Act.⁶

Count III: Denial of substantive and procedural due process based on failure to provide "genuine 'outpatient' treatment."⁷

Count IV: Violation of TEX. HEALTH & SAFETY CODE §§ 841.081(a) and 841.082(a) requirement of outpatient treatment.⁸

Count VI: Denial of substantive due process based on constitutionally inadequate sex offender treatment.⁹

Count VIII: Denial of substantive due process by implementation and imposition of "adhesion contracts."¹⁰

Count IX: Denial of procedural due process by imposition and enforcement of standardized "adhesion contracts" without a hearing or other procedural safeguards.¹¹

Count XI: Denial of Plaintiff's rights under the First, Fourth, Fifth, and Fourteenth Amendments based on imposition of "adhesion contracts."¹²

Plaintiff alleges the following claims against Taylor in her individual capacity:

Count XVI: Violation of Plaintiff's due process property interest through fraud and extortion.¹³

Count XIX: Conspiracy to subject Plaintiff to a system of punitive and preventive detention in violation of the Fourteenth Amendment.¹⁴

Plaintiff alleges the following claims against McLane in her official capacity:

Count V: Violation of court order directing "outpatient" treatment.¹⁵

Count VII: Violation of TEX. HEALTH & SAFETY CODE § 841.007 requirement for appropriate and necessary treatment.¹⁶

Count X: Denial of procedural and substantive due process based on the "adhesion contracts" constituting a de facto "private penal code."¹⁷

Count XII: Violation of procedural due process by failing to provide adequate disciplinary process.¹⁸

Defendants move to dismiss Plaintiff's claims under Rules 12(b)(1) and 12(b)(6).¹⁹

II. Impact of Recent Statutory Amendment

On June 17, 2015, Governor Greg Abbott signed into law an amendment to the SVP Act (the "2015 Amendment") that significantly changed Texas's treatment scheme for SVPs. See Act of May 18, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. Ch. 845 (West). Most significantly for purposes of this case, the 2015 Amendment deleted all references to "outpatient treatment" and eliminated the criminal penalties for violations of requirements imposed by Plaintiff's treatment providers. Id.

This amendment brings Texas's SVP scheme in line with similar programs that the Supreme Court has upheld as constitutional. See Kansas v. Hendricks, 117 S. Ct. 2072, 2083 (1997) (finding Kansas Sexually Violent Predator Act to be non-punitive and constitutional; Seling v. Young, 121 S. Ct. 727, 733-34 (2001) (rejecting challenge to Washington's SVP Act and noting that it is "strikingly similar" to the Kansas scheme in Hendricks, such that the court "proceed[s] on the understanding that the Washington Act is civil in nature."). As the Texas Supreme Court noted in 2005, every other state with an SVP civil commitment program--including the one upheld by the United States Supreme Court in Hendricks--required inpatient treatment, while "[t]he Texas SVP scheme is unique in that it provides for outpatient commitment and, perhaps consequently, imposes severe criminal penalties for violating a condition of confinement." In re Commitment of Fisher, 164 S.W.3d637, 652 (Tex. 2005) (noting that because of these two elements, "the Texas Act appears at once less restrictive and potentially more restrictive than its out-of-state counterparts"). The 2015 Amendment changed both unique elements of the Texas SVP scheme by eliminating commitments of sexually violent predators to outpatient treatment and supervision and, concomitantly, repealing the felony penal sanctions for violating conditions imposed by outpatient treatment providers. Instead, the 2015 Amendment requires a tiered treatment program that allows SVPs to progress "from a total confinement facility to less restrictive housing and supervision and eventually to release from civil commitment, based on the person's behavior and progress in treatment."²⁰

The Court on July 2, 2015, ordered Plaintiff to show cause why his official capacity claims against McLane should not be dismissed as moot in light of the 2015 Amendment, noting that Plaintiff's pleadings and briefing emphasize that his case "has as its foundation the statutory premise that he is an 'outpatient' entitled to non-punitive 'outpatient' treatment and supervision. . . ."²¹ Because the SVP Act, as amended, no longer provides a "statutory premise that [Plaintiff] is an 'outpatient' entitled to non-punitive 'outpatient' treatment," the Court noted that Plaintiff's official capacity claims against McLane, which seek only injunctive and declaratory relief,²² appear to be moot.²³ Plaintiff responds that his official capacity claims are not moot because "[t]he legislative amendments to Chapter 841 of the Texas Health and Safety Code does not require, and the Legislature did not intend retrospective application," and therefore "Plaintiff's vested, statutory right to 'outpatient' treatment and supervision and the 'foundation' for his claims remain intact."²⁴

Plaintiff is correct insofar as he argues that the 2015 Amendment does not apply retroactively to preclude Plaintiff from seeking relief for whatever causes of action may have accrued to him based on his treatment during the time before the effective date of the 2015 Amendment. See State v. Humble Oil & Ref. Co., 169 S.W.2d 707, 707-09 (Tex. 1943) (Under Texas law, "statutes will not be applied retrospectively unless it appears by fair implication from the language used that it was the intention of the Legislature to make it applicable to both past and future transactions."); TEX. GOV'T CODE § 311.031(a)(2) (amendment of a statute does not affect "any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under it"). Plaintiff's individual capacity claims for monetary damages based on past violations of his statutory rights are unaffected by the 2015 Amendment.

Plaintiff's official capacity claims for prospective injunctive relief, however, do not implicate retroactivity, because these claims involve only Plaintiff's post-amendment rights. See Landgraf v. USI Film Products, 114 S. Ct. 1483, 1501 (1994) ("When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is notretroactive."). Plaintiff argues, however, that he has an ongoing "vested right to outpatient treatment," such that the terms of his Order of Civil Commitment cannot be retroactively amended.²⁵

Plaintiff cites no authority for the proposition that his Order of Civil Commitment, by requiring that Plaintiff be committed for outpatient treatment, thereby confers upon him a vested or unalterable right to outpatient treatment. Plaintiff was ordered to submit to outpatient treatment under the former law because he had been judicially found to be a sexually violent predator, which finding he unsuccessfully opposed. The consequent requirement under former law of commitment to outpatient treatment--like the requirements to submit to GPS monitoring and polygraph and plethysmograph testing, and the prohibitions from going near schools, owning a vehicle, and using alcohol which are also found in his Order of Civil Commitment--is a condition of his commitment to achieve the statute's dual objectives of treatment for the sexually violent predator and protection of the public, and is not an entitlement such as those found in the cases cited by Plaintiff regarding tax benefits, immigration rights, and compensatory remedies. Likewise, the 2015 Amendment does not impermissibly "increase [Plaintiff's] liability for past conduct," Landgraf, 114 S. Ct. at 1505, because Plaintiff's commitment to outpatient treatment was not a punishment for past conduct but rather a civilcommitment based on a finding that Plaintiff's behavioral abnormality made him "likely to engage in repeated predatory acts of sexual violence."²⁶ See Hendricks, 117 S. Ct. at 2083 ("The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive...