Stauffer v. Gearhart, 12–20195.

Citation741 F.3d 574
Decision Date24 January 2014
Docket NumberNo. 12–20195.,12–20195.
PartiesShawn Joseph STAUFFER, Plaintiff–Appellant, v. Marna E. GEARHART; Tammy A. Broadway; Laporsha C. Jenkins; Jennifer Smith; Enogong J. Inyang; Geralyn Engman; Madaline Ortiz; David L. Bone; Charles A. Williamson; Brian A. Kaspar; Robert D. Lions, III; Ralph A. Phillips; Robert L. Vanburkleo; Gail Thompson; Brad Livingston; John/Jane Doe, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

OPINION TEXT STARTS HERE

Clinard J. Hanby (argued), Esq., The Woodlands, TX, for PlaintiffAppellant.

Cynthia Lee Burton (argued), Assistant Attorney General, Office of the Attorney General, Austin, TX, for DefendantsAppellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Prison mailroom employees confiscated copies of several automotive magazines that inmate Shawn Stauffer (Stauffer) ordered while he was participating in the Texas Department of Criminal Justice's (“TDCJ”) Sex Offender Treatment Program (“SOTP” or “Program”). Stauffer filed a § 1983 action alleging that these confiscations violated his First and Fourteenth Amendment rights. The district court dismissed his claims on summary judgment and Stauffer appealed. He seeks both monetary and injunctive relief for these alleged violations. Because Stauffer is not entitled to either form of relief, we AFFIRM the district court's dismissal of Stauffer's case.

I.

Stauffer was convicted of the attempted aggravated sexual assault of a child. In 2008, TDCJ assigned Stauffer to the Goree Unit so he could attend TDCJ's SOTP. The Program's goals are (1) to help participants understand and control the sexual urges that caused them to commit sexual crimes, and (2) to provide training and skills to allow sex-offenders to act in a manner that promotes the safety of the communities to which they may return. Participants are enrolled in the Program for the last eighteen months of their incarceration and spend those months in intensive treatment in a group therapeutic environment.

TDCJ limits the outside activities and reading material available to participants during their time in the Program. According to TDCJ, this policy is meant to maximize SOTP's effectiveness by allowing participants to focus all of their energy on fulfilling the Program's requirements. According to affidavits submitted by Defendants, SOTP participants spend “24 hours a day, seven days of week” engaged in the Program, “leaving essentially no time for any other activities.” At the time that Stauffer was enrolled in SOTP, Program participants could not engage in vocational activities or other programs during their time in SOTP, except for certain GED programs. In addition, participants were subject to SOTP 02.06, which provided, in relevant part:

II. In order to facilitate treatment, additional standards for offender correspondence have been imposed. They are as follows:

A. No publications other than newspapers and religious material shall be accepted.

B. Correspondence containing content approving or promoting alcohol/drug use shall be rejected for offender receipt.

C. Correspondence that is sexually suggestive, explicit, and/or provocative in nature shall be rejected for offender receipt. Sexually explicit and/or provocative correspondence includes, but is not limited to, nudity or partial nudity that is stimulating/exciting or sexually suggestive in nature.

D. Offenders may not appeal denials to the Director's Review Committee based on these additional restrictions.

From February through May 2008, the Goree Unit Mailroom confiscated Stauffer's copies of “CarCraft,” “HotRod,” “Performance Products,” and “Jeg's Performance Parts” magazines while he was enrolled in SOTP. According to Stauffer, he wanted the magazines because they “provide[d] information related to his trade in automotive repair and performance.” TDCJ prevented Stauffer from receiving “publications such as ‘Car–Craft,’ ‘Hot–Rod,’ and ‘Low Rider’ magazines” because (1) “all vocational programs must be completed prior to entering the SOTP”; (2) “such publications often contain sexually explicitly material which strongly undermines the goals of the program”; and (3) “18 months is far too brief a period in which to cover all of the material of the program.... [and i]t is of the highest priority that participants enrolled in the [SOTP] use those 18 months to their utmost and not be allowed to engage in unnecessary distractions.” 1 At least one of the confiscated magazines “displays women in sexually provocative positions.”

Stauffer appealed the restrictions on these reading materials through the TDCJ grievance process. In response to his Step 2 Grievance, TDCJ explained that the mailroom staff properly confiscated the magazines in accordance with SOTP 02.06. On May 20, 2008, Stauffer filed this § 1983 suit against fifteen TDCJ employees in their individual and official capacities (Defendants) claiming that they: (1) violated his First Amendment rights by confiscating the magazines under SOTP 02.06; (2) violated his Due Process rights under the Fourteenth Amendment by failing to provide any meaningful review of the mailroomemployee's decisions; and (3) violated his Equal Protection rights under the Fourteenth Amendment by applying the policy solely to inmates participating in SOTP. He seeks one million dollars in nominal, punitive, and compensatory damages against each Defendant, as well as a declaratory judgment that SOTP 02.06 violated his First and Fourteenth Amendment rights. In their answer, Defendants asserted a number of defenses, including qualified immunity under the Eleventh Amendment.

On September 28, 2009, Defendants filed a motion for summary judgment. The district court granted the motion in part, ruling that Defendants were entitled to immunity from Stauffer's claims for monetary compensation against them in their official capacity, and that Stauffer's claim for monetary compensation for the loss of the magazines was not a viable § 1983 claim.2 The district court thus dismissed Stauffer's Due Process claim. The district court then ordered Defendants to file an amended motion for summary judgment addressing only Stauffer's First Amendment and Equal Protection claims. Defendants did so. Stauffer then filed a response to the amended motion for summary judgment. In this response, Stauffer claimed for the first time that Defendants were retaliating against him for bringing the lawsuit and asserting his First Amendment rights. He asserted that the retaliation included denying him parole, a false civil commitment action, and a false report to the INS claiming he was an illegal alien.

The district court granted Defendants' amended motion, concluding that Stauffer failed to show that TDCJ's additional restrictions on his access to magazines while in SOTP violated his First Amendment or Equal Protection rights. The district court also rejected Stauffer's retaliation claim because the “assertion of retaliation was not raised in the complaint, is not before the Court, and must be pursued by plaintiff through a separate lawsuit.” Stauffer appealed.3

At oral argument, counsel for Stauffer represented that Stauffer is no longer enrolled in SOTP. In February 2013, TDCJ published a revised version of SOTP 02.06 (“Revised 02.06”). Revised 02.06 provides:

A. If any part of a publication, other printed material, or correspondence is determined to be detrimental to rehabilitation, then the entire publication, other printed material, or correspondence shall be denied.

B. Correspondence containing questionable content approving or promoting alcohol or drug abuse shall require further review by the Program Supervisor.

C. Correspondence that is sexually suggestive, explicit, or provocative in nature shall be rejected for offender receiptor dispatch. Sexually explicit or provocative correspondence includes, but is not limited to: pictures, drawings, or language that is sexually stimulating or suggestive in nature.

Revised 02.06 also provides that [a]ll procedures for offender correspondence shall be followed in accordance with the Texas Department of Criminal Justice Board Policy 03.91.” A publication may be rejected under Policy 03.91 if [a] specific determination has been made that the publication is detrimental to offenders' rehabilitation because it would encourage deviant criminal sexual behavior.” Policy 03.91, IV(E)(1)(d). Policy 03.91 also requires a case-by-case review of materials containing sexually explicit images. Id. at IV(E)(1)(f).

II.

We review the grant of summary judgment de novo. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.2009) (citation omitted). Summary judgment is appropriate if the record demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The proponent of the motion typically bears the burden of showing a lack of evidence to support his opponent's case.4Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 412 (5th Cir.2008) (citation omitted). If a motion for summary judgment is properly supported, the opposing party may not rely merely on allegations or denials in its own pleadings, but must, in its response, set out specific facts showing a genuine factual dispute for trial. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.2007) (noting that a nonmovant cannot satisfy his summary judgment burden “with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence” (internal quotation marks and citations omitted)). Allegations in a verified complaint may serve as competent summary judgment evidence. Hart v. Hairston, 343 F.3d 762, 765 (5th Cir.2003). We draw inferences about disputed facts in Stauffer's favor, but must

distinguish between evidence of disputed facts and disputed matters of professional judgment. In...

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    ...over prisoners in Bureau of Prisons and federal interest in protecting public from sexually dangerous persons); Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014) (no equal protection violation where prisoners in sex offender treatment program denied magazines because policy had ration......
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    ...about making them pay for it. (Wisconsin) U.S. Appeals Court SEX OFFENDER DUE PROCESS EQUAL PROTECTION PROGRAMS Stauffer v. Gearhart, 741 F.3d 574 (5th Cir. 2014). A state prisoner brought a civil rights action against prison employees in their individual and official capacities, claiming t......

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