Filed: May 19, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-50627 Document: 00513047405 Page: 1 Date Filed: 05/19/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 14-50627 May 19, 2015 Lyle W. Cayce DANIEL K. JOHNSON, also known as Dennis D. Kelly, Clerk Plaintiff-Appellant v. RISSIE OWENS; STUART JENKINS; DAVID GUTIERREZ; JIMMY STUBBLEFIELD; ELVIS HIGHTOWER; JUANITA GONZALES; JAMES LAFAVERS; MICHELLE SKYRME; CYNTHIA TAUSS; ROMAN CHAVEZ, Defendants-Appellees Appeal from the U
Summary: Case: 14-50627 Document: 00513047405 Page: 1 Date Filed: 05/19/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 14-50627 May 19, 2015 Lyle W. Cayce DANIEL K. JOHNSON, also known as Dennis D. Kelly, Clerk Plaintiff-Appellant v. RISSIE OWENS; STUART JENKINS; DAVID GUTIERREZ; JIMMY STUBBLEFIELD; ELVIS HIGHTOWER; JUANITA GONZALES; JAMES LAFAVERS; MICHELLE SKYRME; CYNTHIA TAUSS; ROMAN CHAVEZ, Defendants-Appellees Appeal from the Un..
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Case: 14-50627 Document: 00513047405 Page: 1 Date Filed: 05/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-50627 May 19, 2015
Lyle W. Cayce
DANIEL K. JOHNSON, also known as Dennis D. Kelly, Clerk
Plaintiff-Appellant
v.
RISSIE OWENS; STUART JENKINS; DAVID GUTIERREZ; JIMMY
STUBBLEFIELD; ELVIS HIGHTOWER; JUANITA GONZALES; JAMES
LAFAVERS; MICHELLE SKYRME; CYNTHIA TAUSS; ROMAN CHAVEZ,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-00394
Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Daniel Johnson challenges several conditions of his Texas parole,
urging that they violate various constitutional provisions in this § 1983 suit.
I.
Daniel Johnson was convicted of aggravated rape (now classed as
aggravated sexual assault) of an adult woman in 1977 and sentenced to life
in prison by a Texas court. He was advised that he would be released on
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-50627
parole under conditions including “Special Condition ‘X.’” This condition is
placed on sex offenders and requires enrollment in a sex offender treatment
program and submission to polygraph testing, as well as authorizing
discretionary computer, Internet, and photography restrictions. Months
later, but before his release, he was advised that several conditions were
being added to his parole; Mr. Johnson believes this was a response to
confidential information received from his ex-wife. The new conditions were
that he was not to contact his ex-wife or three biological children, he was not
to leave Texas without permission, and he was to be placed on the Super
Intensive Supervision Program (SISP), which includes electronic monitoring
of his location.
Once released on parole, Mr. Johnson was denied all access to
computers and photography equipment; he asked repeatedly for these
conditions to be removed. A variety of fees related to his parole conditions
were imposed. He brought suit under § 1983, challenging various conditions
of his parole. After the suit was filed, he was advised that he was allowed
access to computers for employment and bill-paying purposes only. The
parties filed cross-motions for summary judgment, and the district court,
following the magistrate’s recommendation, denied Mr. Johnson’s motion and
granted the defendants’, dismissing all claims. After Mr. Johnson timely
appealed, the SISP condition was lifted.
II.
We review the grant of summary judgment de novo, 1 making all
reasonable inferences in favor of the non-moving party. 2 A party may obtain
summary judgment when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
1 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).
2 Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009).
2
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show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” 3 To avoid summary
judgment, “[t]he nonmovant must identify specific evidence in the record and
articulate the manner in which that evidence supports that party’s claim.” 4
III.
Mr. Johnson challenges the restrictions on his use of computers and
photography equipment under the First Amendment. In granting his parole,
the Texas Board of Pardons and Paroles (TBPP) stated that Mr. Johnson was
“required to comply with . . . special conditions of parole [including] . . . X Sex
Offender Program.” The Texas Department of Criminal Justice Parole
Division’s Policy and Operating Procedure 3.6.2 explains that:
Special conditions and discretionary components shall directly
relate to the identified risk, supervision, and treatment needs of
the individual offender.
1. Special Condition “X”
. . . The officer shall apply the appropriate components on a case-
by-case basis to ensure effective supervision. . . .
c. At any time Special Condition “X” is imposed, the officer may
apply the following components at his discretion.
...
(2) The offender shall not own, maintain or operate computer
equipment without a declared purpose and the written
authorization of the offender's supervising parole officer. . . .
(3) The offender shall not own, maintain, or operate photographic
equipment, to include Instamatic, still photo, video, or any
3 Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001) (quoting
Fed. R. Civ. P. 56(c)).
4 Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).
3
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electronic imaging equipment unless approved in writing by the
offender's supervising parole officer. 5
This policy was promulgated under the TBPP’s statutory authority to “impose
as a condition of parole . . . any condition that a court may impose on a
defendant placed on community supervision.” 6
Mr. Johnson specifies that his constitutional claims are all “as
applied.” 7 Access to computers and photography equipment was first
completely denied to Mr. Johnson, subject to his ability to secure parole
officer approval for particular purposes. He was later—and apparently is
now—authorized to use a computer for work and for paying bills only.
We address the restriction in its current form. 8 Mr. Johnson is banned
from using photography equipment and from using computers for anything
other than work and bill-paying unless and until his parole officer determines
that the conditions should be eased. He explains that he wants to use a
computer to “gain information from governmental websites, participate in the
legitimate political process and voice his opinion on political and social issues,
to undertake [genealogical] research, to share family pictures with his family,
who lives in Illinois, to purchase items on line,” and “for his personal
litigation.” He wants “to use a camera . . . as a form of expression, to record
historical sites, cultural and political events, community social events, and
share those pictures and expression with others.”
5 Tex. Dep’t of Criminal Justice Parole Div., Policy and Operating Procedure 3.6.2, 2,
4-5, 2011.
6 Tex. Gov't Code Ann. § 508.221; see also Jennings v. Owens, 585 F. Supp. 2d 881,
885-86 (W.D. Tex. 2008) (explaining the origin of Special Condition X) rev'd,
602 F.3d 652
(5th Cir. 2010).
7 Accordingly we decline to address his cursory references to facial vagueness and
overbreadth arguments, which are also waived for inadequate briefing.
8 Any re-imposition of the total ban would involve fact-sensitive inquiries into the
reason for the imposition. If the defendants made a habit of repeatedly imposing and
rescinding the total ban, the situation might be different.
4
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Prisoners’ First Amendment rights may be restricted in ways
“reasonably related to legitimate penological interests.” 9 The First
Amendment rights of probationers can also be constitutionally restricted if
“reasonably necessary” for purposes such as protecting the public and
discouraging recidivism. 10 Parole is on the “‘continuum’ of state-imposed
punishments,” falling between imprisonment and probation, 11 and is
comparable to supervised release in the federal system. 12 It follows that
parolees’ First Amendment Rights may be restricted to a degree intermediate
to those of prisoners and probationers, and similar to those of offenders on
supervised release, but we have not made clear exactly what standard
applies. Few parole cases have presented the issue before us, and our
analysis in supervised release cases has been largely statutory rather than
constitutional. 13
In United States v. Bird, the closest we have come to deciding this
issue, we held that a temporary supervised release restriction of First
Amendment rights requiring a defendant to stay 1,000 feet from abortion
clinics was constitutional where it was “reasonably necessary” to further the
governmental interest in preventing violent activity. 14 Because supervised
release and parole are in comparable positions on the continuum of
punishments, this holding suggests that parolees’ First Amendment rights
may be restricted as long as it is reasonably necessary for certain government
9 Stauffer v. Gearhart, 741 F.3d 574, 584 (5th Cir. 2014).
10 United States v. Locke, 482 F.3d 764, 768 (5th Cir. 2007).
11 Samson v. California, 547 U.S. 843, 850 (2006).
12 See id. at 850, 854-55 (citing supervised release cases interchangeably with parole
cases for the proposition that parole is intermediate to imprisonment and probation); Doe v.
Harris,
772 F.3d 563, 571 (9th Cir. 2014) (treating parole and federal supervised release
equivalently for purposes of the “continuum of possible punishments”).
13 See, e.g., United States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001) (analyzing
conditions under 18 U.S.C. §§ 3553 and 3583 rather than the First Amendment).
14 United States v. Bird, 124 F.3d 667, 684 (5th Cir. 1997).
5
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objectives. Bird tells us that this standard is sufficient constitutionally, but
does not tell us whether it is required. Because the “reasonably necessary”
standard is used to assess First Amendment restrictions on probationers,
logically something less than that standard is required to restrict parolees’
rights.
Other circuits’ parole and supervised release cases provide additional
guidance on the constitutional dimensions of the issue, and support the view
that even if parolees’ rights may be more readily restricted than probationers’
some rational justification is still required. The Ninth Circuit recently
summarized its case law on the First Amendment protection applicable to
various classes of registered sex offenders. Following the Second Circuit’s
decision in Birzon v. King, the court explained that:
[a]lthough parolees “should enjoy greater freedom in many
respects than a prisoner, . . . the Government may . . . impose
restrictions on the rights of the parolee that are reasonably and
necessarily related to the [Government’s] interests.” . . . [B]ecause
parolees retain some of their First Amendment rights we have . .
. struck conditions of release that unreasonably burdened those
rights. 15
Variations on the “reasonably and necessarily related” standard are the rule
in other circuits as well, 16 sometimes phrased in terms of whether the
restriction is “directly related,” 17 “narrowly tailored and . . . directly
15 Harris, 772 F.3d at 571 (quoting Birzon v. King,
469 F.2d 1241, 1243 (2d Cir.
1972)).
Farrell v. Burke, 449 F.3d 470, 497-98 (2d Cir. 2006) (continuing to utilize the
16
Birzon test); United States v. Spilotro, 786 F.2d 808, 816 n.5 (8th Cir. 1986) (noting that
restrictions on parolees’ First Amendment association rights have been held constitutional
when “reasonably and necessarily related to . . . substantial governmental interests”).
17 United States v. Nixon, 664 F.3d 624, 627 (6th Cir. 2011).
6
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related,” 18 or “reasonably related” 19 to governmental goals such as
rehabilitation and protecting the public.
Whatever the exact formulation, the question before us is basically one
of reasonableness; whether the computer and photography restrictions placed
on Mr. Johnson are reasonably related to achieving important state goals
such as protecting the public and encouraging reintegration into society. 20
The district court ruled that the partial ban on computer use and total ban on
photographic equipment, both restrictions susceptible to being lifted in whole
or part by parole officers, are “reasonably related” to these goals because Mr.
Johnson is a sex offender.
The fact that the restrictions on Mr. Johnson can be lifted when parole
officers find it appropriate, 21 that the computer ban allows access for work
and bill-paying, 22 and that photography is a hobby of Mr. Johnson’s rather
than his livelihood, 23 make the restrictions less harsh and more likely to pass
constitutional muster. Moreover, the policy document setting the contours of
Special Condition X states that that discretionary conditions should be
applied on a “case-by-case basis” in accordance with the “identified risk,
18 United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999); United States v.
Neeley, 420 Fed. App’x. 228, 231-32 (4th Cir. 2011) (citing Crandon in supervised release
case); United States v. Loy,
237 F.3d 251, 256, 259, 263 (3d Cir. 2001) (same).
19 Behlke v. Jordan, 83 F.3d 424,
1996 WL 208514, at *1 (7th Cir. 1996); see also
United States v. Schoenherr, 504 Fed. App’x. 663, 670-71 (10th Cir. 2012).
20 Mr. Johnson has not questioned that these are sufficiently weighty state goals.
Though he argues that the defendants never advanced them as reasons for the restriction
on him, they appear at the beginning of the Parole Division policy document defining
Special Condition X, which Mr. Johnson placed in the record. See Tex. Dep’t of Criminal
Justice Parole Div., Policy and Operating Procedure 3.6.2, 1, 2011.
21 United States v. Zinn, 321 F.3d 1084, 1092-93 (11th Cir. 2003) (“We are also
satisfied that the restriction in this case is not overly broad in that Appellant may still use
the Internet for valid purposes by obtaining his probation officer's prior permission.”).
22 See United States v. Malenya, 736 F.3d 554, 560 (D.C. Cir. 2013) (noting that
employment and bill paying are two important tasks that incorporate computers).
23 See Paul, 274 F.3d at 171.
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supervision, and treatment needs” of parolees. 24 To the extent this policy is
carried out, the conditions imposed should logically be “reasonably related” to
the state’s permissible goals.
The trouble is that Mr. Johnson has presented evidence that the policy
of imposing the computer and photography restrictions on an individual basis
was not carried out in his case. Rather, his initial probation officer imposed
the restriction because Mr. Johnson is a sex offender. 25 The defendants have
offered no explanation of why it is reasonably necessary to severely restrict
Mr. Johnson’s computer access and ban access to photography, other than his
sex offender status. 26 The defendants make no argument that it is necessary
or reasonable to broadly categorize offenders in this manner—the Probation
Department policy in fact contemplates that computer and photography
restrictions should be applied “case-by-case.”
Mr. Johnson’s sex offense, aggravated rape of an adult, had no
connection to computers, the Internet, photography, or minor victims. Nor
have the defendants identified any aspect of his history or characteristics
that would make general access to computers or photography equipment
dangerous or counterproductive—this would be a different case if the
24 Tex. Dep’t of Criminal Justice Parole Div., Policy and Operating Procedure 3.6.2,
2, 2011.
25 Compare Pl.’s Mot. for Partial Summ. J., 25, ECF No. 56 (Mr. Johnson stating in
signed declaration that Parole Officer Stubblefield “informed [Mr. Johnson] that he would
not allow any parolee on his caseload . . . to possess and use a computer with Internet
access in their homes, as it was his policy to prevent such use.”) with Ex. P to Resp. in
Opp’n to Am. Mot. for Summ. J., 6, ECF No. 73-4 (Stubblefield stating in response to
Request for Admissions that “while it was not my personal policy, I had the right, under
TDCJ-Parole Division policies and procedures to refuse any sex offender with a Special
Condition X access to a computer with internet access” (emphasis added)).
26 We note that Mr. Johnson’s counselor wrote a letter requesting that Mr. Johnson’s
restrictions be partly lifted to allow use of “computer for work related purpose and paying
his bills only” prior to the condition’s being eased. The defendants do not argue that this
letter shows the remaining restrictions are “reasonably necessary” or that the request to lift
certain conditions constitutes a professional opinion that other conditions are necessary.
8
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condition were more tailored, for example restricting access to only certain
kinds of websites. 27 It is easy to see how the broad computer restriction here
could hinder his reintegration given that it currently blocks his access to
most e-mail communication, myriad sources of news, and information about
community events and places of commerce. 28
The Constitution protects parolees’ First Amendment rights as long as
infringement is not reasonably related to achieving state goals like protecting
the public. Intrusive restrictions on computers, photography, and Internet
use have been upheld only where there was a connection between the
offender or offense and improper use of computers or Internet, 29 or
photography. 30 At times they have not been upheld even then. 31 Though we
27 See, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (“[T]he district
court can impose a more narrowly-tailored restriction on Mr. Crume's computer use
through a prohibition on accessing certain categories of websites and Internet content and
can sufficiently ensure his compliance with this condition through some combination of
random searches and software that filters objectionable material.”); United States v. Sofsky,
287 F.3d 122, 127 (2d Cir. 2002) (noting methods by which Internet usage may be
monitored); United States v. White,
244 F.3d 1199, 1206-07 (10th Cir. 2001) (noting
availability of filtering software).
28 See, e.g., Malenya, 736 F.3d at 560 (noting the many uses of computers and the
Internet);
Sofsky, 287 F.3d at 126 (same).
29 See, e.g., Locke, 482 F.3d at 768 (in probation case, upholding Internet restriction
where defendant used Internet to acquire child pornography);
Crandon, 173 F.3d at 127-28
(upholding 1-year ban on Internet use during supervised release where defendant “used the
Internet as a means to develop an illegal sexual relationship with a young girl”); United
States v. Peterson,
248 F.3d 79, 82-83 (2d Cir. 2001) (in probation case, overturning broad
restriction on computer and Internet access in part because defendant’s sex offense had no
“connection to computers or to the Internet”).
30 See, e.g., Paul, 274 F.3d at 170-71 (in supervised release case, upholding
restriction on photography equipment where defendant possessed photographs of naked
local children, and there was evidence he may have produced child pornography).
31 See, e.g., Crume, 422 F.3d at 733 (in supervised release case, vacating ban on
Internet and computer use without permission of parole officer where defendant possessed
child pornography on his computer); United States v. Freeman,
316 F.3d 386, 387-88, 391-
92 (3d Cir. 2003) (in supervised release case, vacating ban on possessing computer in home
and using Internet without parole officer permission where defendant possessed child
pornography on his laptop);
Sofsky, 287 F.3d at 124, 126-27 (in supervised release case,
overturning ban on computer or Internet use without probation officer permission where
defendant possessed over 1,000 child pornography images on computer).
9
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recognize parole officers’ expertise in fashioning parole conditions, some
rational connection must connect the First Amendment restriction to Mr.
Johnson and the state’s goals. Here, Mr. Johnson declares that no such
connection exists, and has not been gainsaid. Simply stating that these
restrictions relate to Texas’s protection and reintegration goals does not
make it so, in the absence of logical or factual connections. Otherwise every
conceivable deprivation of rights would be constitutionally permissible.
The fact that someone raped an adult woman and is thus a sex
offender, without more, is not enough to show that severe restrictions on
computer and photography access are reasonably related to Texas’ interests
in reintegration and protection. The district court’s grant of summary
judgment on the First Amendment claims based on Mr. Johnson’s sex
offender status was thus error, and we reverse. Because the court accepted
Mr. Johnson’s sex offender status as sufficient to support the restrictions, it
did not address Mr. Johnson’s signed declarations and other evidence on this
issue. We remand so that the court may determine in the first instance
whether Mr. Johnson has created a genuine issue of material fact as to the
non-existence of a reasonable connection between the restrictions and the
offender—some connection beyond Mr. Johnson’s conviction for aggravated
rape—which causes the restrictions to be reasonably necessary.
IV.
Mr. Johnson urges that the restriction against his traveling outside of
Texas without permission 32 violates the equal protection clause. He claims
that the restriction was placed on him with ill will by the board members,
based on malicious false information from his ex-wife and children, and
treats him more harshly than higher-risk parolees. He cites Snowden v.
32 Permission has not been forthcoming, though Mr. Johnson has sought it.
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Hughes for the proposition that “intentional or purposeful discrimination” in
administering the parole system may violate equal protection. 33 But he offers
no evidence to support his contention that the defendants’ decision to restrict
his travel was based on ill will or otherwise constituted “clear and intentional
discrimination.” 34 Nor does he argue he has shown he was treated differently
from similarly situated parolees without a rational basis, 35 instead explaining
that the discovery period expired before he could gather the necessary
information. 36 In the absence of such evidence, Mr. Johnson’s equal
protection claim fails.
V.
Mr. Johnson argues that the sex offender therapy and SISP
conditions 37 and the various required fees associated with his parole violate
the ex post facto clause. 38 The ex post facto clause bars “enactments which,
by retroactive operation, increase the punishment for a crime after its
commission.” 39 Conditions of parole could increase the punishment for a
crime by affecting “the length of sentence if the condition was so onerous that
it was effectively impossible to meet.” 40 Parole conditions might also
33 321 U.S. 1, 8 (1944).
34 Id.
35 See Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000).
36 We note that Mr. Johnson was granted a thirty-day discovery extension.
37 Though the SISP condition has been lifted, “voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of the
practice, even in cases in which injunctive relief is sought.” Meza v. Livingston, 607 F.3d
392, 400 (5th Cir. 2010) (quoting City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283,
289 (1982)).
38 Mr. Johnson notes that his ex post facto claims below included that he was
subjected to unreliable polygraph testing (discussed in part VII), but does not challenge the
merits of the grant of summary judgment on that claim. He waives any ex post facto claim
based on the computer/photography restrictions, choosing to focus on First Amendment
claims.
39 Garner v. Jones, 529 U.S. 244, 249 (2000).
40 Vineyard v. Keesee, 70 F.3d 1266,
1995 WL 696732, at *1 (5th Cir. 1995).
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constitute additional punishment under the intents-effects test, 41 which asks
“whether 1) the legislature intended the sanction to be punitive, and 2) the
sanction is ‘so punitive’ in effect as to prevent courts from legitimately
viewing it as regulatory or civil in nature.” 42 We have said that only fees are
likely to constitute punitive parole conditions, and rejected challenges to
“electronic monitoring, urinalysis, driving restrictions, and curfew.” 43
Neither the defendants nor the court below found fault with Mr.
Johnson’s assertion that the conditions he challenges result from laws
enacted after his 1977 conviction. Rather the defendants argued and the
district court found that the conditions did not increase the punishment for
Mr. Johnson’s crime.
a.
Mr. Johnson has not shown that either the sex offender therapy or the
SISP conditions are impossible for him to meet. Although some of the
mandated therapy goals may not apply to him, it appears from Mr. Johnson’s
filings that the providers recognize his overall participation in the program as
sufficient progress and consider him to be complying. As to SISP, while
equipment malfunctions have apparently resulted in false reports of
violations by Mr. Johnson, and his medical conditions have sometimes
prevented him from keeping to his prescribed schedule and routes, he was
not re-incarcerated as a result. Moreover, his level of compliance was
apparently considered sufficient for the condition to be lifted in November
2014. On these facts, Mr. Johnson has not created a genuine issue of fact as
to whether it was effectively impossible for him to comply with the SISP
condition.
41 Rieck v. Cockrell, 321 F.3d 487, 487-88 (5th Cir. 2003).
42 Moore v. Avoyelles Correctional Ctr., 253 F.3d 870, 872 (5th Cir. 2001).
43 Vineyard, 1995 WL 696732, at *1-2.
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Mr. Johnson has also not shown that either the sex offender therapy or
SISP conditions are punitive under the intents-effects test. He has offered no
evidence that the laws authorizing the conditions are intended to be punitive
or that the TBPP intended their application to him to be punitive. As to the
second step of the test, the “most significant question . . . is whether the law
while perhaps having certain punitive aspects, serve[s] important
nonpunitive goals. A law serving nonpunitive goals is not punishment, even
though it may bear harshly on one affected.” 44 Here, despite the perhaps
well-deserved criticism Mr. Johnson levels at the conditions applied to him,
both serve important non-punitive functions such as protecting the public.
b.
Mr. Johnson has been required to pay fees associated with his parole,
including “counseling and supervision fees,” the cost of a landline to allow
electronic monitoring, and “polygraph and evaluation fees.” He declares that
he is able to make these payments, totaling over $1000 as of January 2014,
only due to “assistance from friends.”
We have said that “[b]ecause parole in Texas is not part of a
defendant's punishment, the change in the parole procedures . . . that
imposed [] parole supervision fees was not a violation of the ex post facto
clause.” 45 Yet we previously recognized that “[a] statute may be
impermissibly retrospective, ‘even if it alters punitive conditions outside the
sentence itself’” 46 and contemplated that parole fees could in some cases
constitute ex post facto punishment. 47 In this case, Mr. Johnson’s ex post
facto claim does not survive summary judgment.
44Moore, 253 F.3d at 873 (internal quotation marks and citations omitted).
45Walp v. Bozarth, 138 F.3d 951,
1998 WL 110049, at *1 (5th Cir. 1998).
46 Vineyard, 1995 WL 696732, at *1 (quoting Weaver v. Graham,
450 U.S. 24, 32
(1981)); see also Sheppard v. State of La. Bd. of Parole,
873 F.2d 761, 764 (5th Cir. 1989).
47 Vineyard, 1995 WL 696732 , at *1-2;
Sheppard, 873 F.2d at 764.
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Mr. Johnson makes no effort to show that the fees were intended to
punish parolees, so to survive summary judgment he must show a genuine
issue of fact as to whether the fees are effectively impossible to pay or
whether they are “‘so punitive’ in effect as to prevent courts from legitimately
viewing [them] as regulatory or civil in nature.” 48 Mr. Johnson declares that
he would not be able to pay the fees without help from friends, but points this
court to no evidence of his finances or ability to pay, relying instead on
conclusory assertions. He also declares that his continued successful
compliance with the terms of parole depends on his paying the fees.
However, his filings show that at least some of his fees are subsidized and
that failure to pay therapy or polygraph fees is a “failure to participate in
treatment” only if “the offender’s ability to pay has been established.”
Given Mr. Johnson’s failure to introduce evidence of his inability to pay
the fees beyond bare assertions, he has not created a genuine issue of fact
that the fees are impossible for him to meet. For the same reason, and
especially in light of the self-evident non-punitive reasons for charging
parolees fees to cover the costs associated with their parole, he has not
created a genuine issue of material fact that the fees are punitive under the
intents-effects test.
VI.
Mr. Johnson argues that the SISP condition and sex-offender therapy
requirement violate his right to be free from cruel and unusual punishment
under the Eighth Amendment 49 and violate substantive due process. 50 To
48 Moore, 253 F.3d at 872.
49 Mr. Johnson also notes that his Eighth Amendment claims in the district court
included that he was subjected to unreliable polygraph testing (discussed below in part
VII), but does not challenge the grant of summary judgment on the merits.
50 Mr. Johnson makes only a procedural argument about the polygraph requirement,
and waives any claim related to interstate travel, as discussed in Part VII.
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succeed on his Eighth Amendment claims, Mr. Johnson must show deliberate
indifference—that the defendants “[knew] of and disregard[ed] an excessive
risk to [his] health or safety.” 51 Substantive due process protects against
arbitrary abuses of government power without reasonable justification 52—
forbidding “only the most egregious official conduct,” that which “shocks the
conscience.” 53 We have required a showing of at least “deliberate
indifference” in order to prove a substantive due process violation has
occurred. 54
As to the sex-offender therapy condition, Mr. Johnson has not created a
genuine issue as to whether the defendants were deliberately indifferent to
an excessive risk of harm. In a signed declaration, he stated that the therapy
causes him “significant mental and even emotional distress.” It is
“distressing and anguishing to [him], personally, to be forced to participate
and show progress” in therapy sessions which focus on issues such as deviant
fantasies, relevant to repeat offenders with minor victims but not to him. In
addition, Mr. Johnson submits an affidavit from a Licensed Professional
Counselor and former Texas Sex Offender Treatment Provider stating that
the therapy “could be counterproductive.” This is not enough to establish an
“excessive risk” or to be conscious shocking. Whatever the wisdom of
requiring a parolee such as Mr. Johnson to participate in this therapy, he has
not produced evidence that it causes such harm as to violate his Eighth
Amendment or substantive due process rights.
51 Farmer v. Brennan, 511 U.S. 825, 837 (1994).
52 County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)
53 Id. at 846.
54 See Hernandez ex rel. Hernandez v. Tex. Dept. of Prot. and Reg. Servs.,
380 F.3d
872, 880 (5th Cir. 2004); see also Daniels v. City of Dallas, 272 Fed. App’x. 321, 323 (5th Cir.
2008).
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Regarding the SISP condition, we recognize Mr. Johnson’s claimed
injuries are not trivial. He states that he has been forced to urinate on
himself in public (due to a medical condition occasioning frequent urination)
in order to avoid violating SISP terms by deviating from a prescribed
itinerary to find a bathroom. He has also been repeatedly prevented from
sleeping due to malfunctioning equipment and related phone calls in the
middle of the night. By restricting his ability to exercise, SISP has also led to
an increase in the pain he is caused by a preexisting spinal condition.
Mr. Johnson does not provide evidence of the frequency of the urination
and back pain issues, nor of whether they continued after the defendants
were made aware of the problems. His only argument that the defendants
were aware of the harm caused by SISP is that they were made so by his
filings in this case. Assuming his court filings are sufficient evidence of the
defendants’ awareness of the harm, his failure to show that conditions
remained the same after the defendants received notice leaves him unable to
show that they were deliberately indifferent to excessive risks.
With regard to the sleep disruption stemming from the malfunctioning
monitoring equipment, Mr. Johnson’s filings make it clear that parole officers
attempted to correct the problem by replacing the equipment several times
before the SISP condition was finally removed. Under these circumstances,
the defendants’ behavior cannot be said to be deliberately indifferent, or to
shock the conscience.
VII.
Mr. Johnson raises several other issues. First, he argues that the
defendants never moved for summary judgment as to his Eight Amendment,
Substantive Due Process, and ex post facto claims based on his being
subjected to unreliable polygraph tests, or as to his equal protection claim
regarding the interstate travel restriction. A district court may grant
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summary judgment sua sponte as long as it gives the parties notice and “a
reasonable time to respond.” 55 The magistrate’s Report and Recommendation
clearly recommended that “summary judgment should be GRANTED in favor
of Defendants on all of Johnson’s claims for relief.” Mr. Johnson was given
fourteen days to respond with objections, in which he was free to highlight
any materially disputed facts and his legal arguments as to these claims. His
objections demonstrate that he understood the magistrate was recommending
summary judgment be granted on the polygraph and interstate travel claims.
As such we find the district court’s grand of summary judgment was not
procedurally improper.
Mr. Johnson has waived several claims by failing to adequately brief
them. Although we construe pro se plaintiffs’ briefs liberally against waiver,
such plaintiffs must still brief issues to preserve them. 56 Mr. Johnson’s
conclusory statements about the impact of the interstate travel restriction on
his First and Fourteenth Amendment family association rights are
insufficient. So is his one-sentence objection to “the failure of the Appellees’
counsel to serve” certain summary judgment exhibits on him.
Mr. Johnson also appeals the district court’s orders denying his motion
to compel production of letters written by his former wife and his children,
which were given to the TBPP prior to the imposition of the SISP, interstate
travel, and no-contact restrictions. Claims of privilege are disfavored,
particularly in § 1983 cases, 57 yet here the letters were given in confidence,
and that confidence is key to maintaining the relationship between members
of the public and the TBPP, which the community through the legislature has
55 F.R.C.P. 56(f); Love v. Natl. Med. Enterprises, 230 F.3d 765, 770 (5th Cir. 2000)
(“[I]t is well-settled that a district court may grant summary judgment sua sponte, ‘so long
as the losing party has ten days notice to come forward with all of its evidence’ . . . .”).
56 Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).
57 ACLU v. Finch, 638 F.2d 1336, 1343-44 (5th Cir. Unit A Mar. 1981).
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made clear should be fostered. Importantly, Mr. Johnson has not explained
how the letters would help him to prove his constitutional claims related to
the SISP and the interstate travel restrictions, the only relevant conditions in
this appeal. As such, the defendants met the four-part test for recognition of
a state privilege, 58 and the district court did not abuse its discretion in
denying Mr. Johnson’s motion to compel.
_____________
We VACATE the district court’s grant of summary judgment against
Mr. Johnson’s as-applied First Amendment Claims and REMAND for further
proceedings. We AFFIRM the remainder of the district court’s judgment.
58 Finch, 638 F.2d at 1344 (listing four necessary factors for honoring state privilege
rules).
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