Ballentine v. Broxton

Case: 24-50876 Document: 76-1 Page: 1 Date Filed: 09/16/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 24-50876 September 16, 2025

____________ Lyle W. Cayce

Clerk

Garland Ballentine,

Plaintiff—Appellant,

versus

Sergeant Heather Broxton; Jay Hart, in his individual

capacity; Grievance Department Vicki Cundiff,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:19-CV-459

______________________________

Before Jones and Graves, Circuit Judges, and Rodriguez, District

Judge.*

James E. Graves, Jr., Circuit Judge:

Garland Ballentine, a recent parolee, alleges that Texas prison officials

violated his Fifth, First, and Fourteenth Amendment rights by requiring him

to make self-incriminating statements to access a program that had the

potential of ending his administrative segregation assignment. Because we

_____________________

*

United States District Judge for the Southern District of Texas, sitting by

designation.

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conclude that the officials are entitled to qualified immunity as to Ballentine’s

Fifth and First Amendment claims, and that if a liberty interest existed,

Ballentine was afforded sufficient procedural due process through periodic

classification reviews, we AFFIRM summary judgment in the officials’

favor.

I.

A.

In 2009, Garland Ballentine was convicted of aggravated assault and

sentenced to 25 years in Texas state prison. Shortly after Ballentine’s

incarceration began, officials determined that he was a ranking member of the

Aryan Circle, a notorious prison gang. The Texas Department of Criminal

Justice (“TDCJ”) classifies the Aryan Circle as a designated security threat

group. Because of that classification, Ballentine was assigned to

administrative segregation, a form of solitary confinement, and remained

there for sixteen years until being paroled in 2025.1

A prisoner placed in solitary confinement because of a security threat

group classification may only return to the general prison population through

completion of the TDCJ’s Gang Renouncement and Disassociation

program (“GRAD”). To be eligible for GRAD placement, an inmate must

(1) “contact the Security Threat Group Officer [] at the unit level in writing

and renounce his membership and affiliation” with the gang, and (2) undergo

an “interview and investigat[ion]” regarding the prisoner’s alleged

disassociation.

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1

In May 2025, during the pendency of this appeal, Ballentine’s counsel informed

the court that Ballentine “has been released from prison under parole.”

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In 2018, Ballentine initiated the GRAD process by renouncing his

Aryan Circle affiliation and applying to the program. Ballentine directed his

renunciation to Heather Broxton, the sergeant in charge of the unit where he

was housed.

On February 25, 2019, Broxton and another officer escorted

Ballentine to an interrogation room. At least six officers interviewed

Ballentine that day: Jay Hart, the head of the prison’s management office;

and outside law enforcement officers from at least two Texas city police

departments, Texas state police, and the federal Bureau of Alcohol, Tobacco,

Firearms, and Explosives. According to Broxton, the goal of the interview

was to obtain information “about activity from another unit [Ballentine] was

assigned to.”

Ballentine was asked about “activities that occurred after he went into

prison” and “activities separate from why [] Ballentine went to prison in the

first place.” Ballentine “refused to answer questions about his prior criminal

activities” that may have occurred after he entered prison. The interrogators

then claimed to have “evidence that could be used to potentially incriminate

him”—specifically, “a wire or a recorded line and they knew that it was

Ballentine” who was conversing with “a corrupt officer” through a

“contraband phone.” Broxton surmised that the officers employed these

tactics to encourage Ballentine to share “his side of the story” and provide

“an answer” to their questions. At some point, “after [Ballentine] refused

to answer further questions, the interrogation concluded.” As Broxton

escorted Ballentine back to his cell, she encouraged him to cooperate and

“reach out to” her “if he decided he wanted to talk with” the officers again.

About a week after the interview, on March 6, Broxton sent Hart a

writeup of the interrogation. She summarized that Ballentine “was

uncooperative in answering questions in regards to an investigation

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conducted by Federal prosecutors involving members of the Aryan Circle.”

She accordingly recommended that Ballentine’s “Disassociation

Investigation be terminated.” Ballentine alleges that Hart adopted Broxton’s

recommendation, and on June 11, Broxton provided Ballentine with written

notice that his “disassociation investigation ha[d] been discontinued due to:

Other: Failure to cooperate with outside law enforcement regarding Aryan

Circle investigation.” Notably, on the form that Broxton completed, she did

not mark another printed reason for discontinuing Ballentine’s investigation.

The line next to the justification, “[i]t has been determined you are still active

in your gang[,]” remained unchecked.

Ballentine filed two formal grievances relating to the interrogation.

The first, filed in March 2019, complained of a “coercive atmosphere” and

accused the officers of attempting “to elicit incriminating responses from

[him].” He requested that TDCJ provide a copy of a document that he

partially signed during the interview, as well as the names of those who

interviewed him. This grievance was summarily denied; the only explanation

given was that no security threat group staff members were among the

interrogators.

Ballentine’s second grievance was filed in June 2019, two days after

receiving notice that his GRAD investigation had been terminated. In that

grievance, he characterized the investigation as a sham, challenged its

termination, and requested that the Department “close[] out” the

investigation so that he could exhaust his administrative remedies and “file a

1983” action in federal court. Vicki Cundiff, the Grievance Department

Chair, dismissed the grievance because the “grievable time period ha[d]

expired” and because Ballentine’s complaint was “redundant.” She later

admitted in a deposition that these justifications were improper.

B.

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In August 2019, Ballentine sued Broxton, Hart, and Cundiff (the

“defendants” or “TDCJ officials”) under 42 U.S.C. § 1983, alleging that

the termination of his GRAD application violated his Fifth, Sixth, Eighth,

and Fourteenth Amendment rights. He also sought leave to proceed in forma

pauperis, and requested appointed counsel. On August 12, the district court

granted Ballentine leave to proceed in forma pauperis, denied Ballentine’s

motion for appointed counsel, and directed Ballentine to provide a more

definite statement of his claims. Ballentine provided a revised statement, and

moved for reconsideration of his request for appointed counsel.

On December 13, and without ordering a response from the

defendants, the district court sua sponte dismissed Ballentine’s complaint,

with prejudice, for failure to state a claim. Eight months later, in August

2021, a per curiam panel of this court vacated the district court’s order,

ordered the district court to serve the defendants, and remanded with

instructions to “consider the arguments on both sides.”

On remand, Ballentine again moved for appointed counsel. The

district court summarily denied that motion, and again, Ballentine moved for

reconsideration to no avail. The defendants answered and moved to dismiss

Ballentine’s complaint for failure to state a claim. Ballentine then filed

motions to compel discovery, for leave to file an amended complaint, to

supplement the record, and for summary judgment. On May 6, 2022, the

district court issued an omnibus order denying Ballentine’s requests, and

entered summary judgment for the defendants. Ballentine again appealed,

and his appellate counsel focused on three constitutional claims associated

with the denial of his participation in the GRAD program. A different panel

of this court concluded that the district court abused its discretion in denying

Ballentine’s renewed motion for appointed counsel, and remanded to the

district court for further proceedings.

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Ballentine returned to the district court, and with the assistance of his

appellate counsel, amended his complaint to allege violations of his Fifth

(self-incrimination), First (compelled speech and retaliation), and

Fourteenth Amendment (procedural due process) rights. He sought

damages and declaratory and injunctive relief for alleged constitutional

violations related to his solitary confinement. In September 2024, and after

discovery concluded, the district court again granted summary judgment for

the defendants. It concluded that there was no factual dispute as to any of

the alleged constitutional violations, and that in any event, the defendants

were entitled to qualified immunity. Ballentine again timely appealed.

In late 2024, during the pendency of this appeal, Ballentine was added

to TDCJ’s “Serious and Violent Offender Reentry Initiative program,”

making him eligible for parole. In May 2025, Ballentine’s counsel informed

the court that Ballentine “has been released from prison under parole.”

Because of this recent development, Ballentine “no longer seeks declaratory

or injunctive relief,” but “maintains his claims for damages” related to his

solitary confinement.

II.

Grants of summary judgment are reviewed de novo. Miller v. Michaels

Stores, Inc., 98 F.4th 211, 215 (5th Cir. 2024) (citation omitted). Summary

judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “Once the moving party has

demonstrated the absence of a material fact issue, the non-moving party must

‘go beyond the pleadings and designate specific facts showing that there is a

genuine issue for trial.’” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540

(5th Cir. 2005) (citation omitted). “A dispute as to a material fact is

‘genuine’ if the evidence is such that a reasonable jury could return a verdict

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for the nonmoving party.” Id. “When considering summary judgment

evidence, [this court] must view ‘all facts and inferences . . . in the light most

favorable to the nonmoving party.’” Id. (quoting Armstrong v. Am. Home

Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)).

The TDCJ officials have also asserted qualified immunity in response

to Ballentine’s damages claims. To overcome the defense, a plaintiff must

make two showings. “First, he must show that he adequately alleged that his

rights were violated.” Stevenson v. Toce, 113 F.4th 494, 501 (5th Cir. 2024).

“Second, he must show that, at the time his rights were violated, legal

precedent clearly established the officials’ actions as unlawful.” Id. As

relevant here, the Supreme Court has directed that courts not “define clearly

established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011). Instead, precedent must speak to “the violative nature of [the]

particular conduct” and “the specific context of the case.” Mullenix v. Luna,

577 U.S. 7, 12 (2015) (emphasis omitted).

III.

A.

Ballentine first appeals summary judgment for his Fifth Amendment

self-incrimination claim. He asserts that the TDCJ officials conditioned his

pre-GRAD investigation—and thus, his only method of leaving solitary

confinement—on an unconstitutional obligation to make self-incriminating

statements about his criminal activities in prison.

Because of his recent release, Ballentine now only seeks damages for

these alleged Fifth Amendment violations. However, “[t]he doctrine of

qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

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457 U.S. 800, 818 (1982)). To overcome qualified immunity, Ballentine must

show (1) “that he adequately alleged that his rights were violated,” and (2)

“that, at the time his rights were violated, legal precedent clearly established

the officials’ actions as unlawful.” Stevenson, 113 F.4th at 501.

We need not address the first prong, because the second prong is

dispositive.2 Ballentine alleges that violations of his Fifth Amendment right

were “clearly established” at the time of the interrogation for two reasons.

First, he highlights that Lefkowitz v. Cunningham barred government officials

from penalizing “assertion[s] of the constitutional privilege against

compelled self-incrimination by imposing sanctions to compel testimony.”

414 U.S. 70, 77 (1973). Second, he explains that the opinions in McKune v.

Lile indicate that “indefinite solitary confinement that is severe enough to

implicate a liberty interest cannot be imposed as a penalty for an inmate’s

refusal to incriminate.”

But reliance on Lefkowitz is insufficient. As noted above, the Supreme

Court has admonished courts to not “define clearly established law at a high

level of generality.” Ashcroft, 563 U.S. at 742. While Lefkowitz’s holding is

straightforward—a government generally “may not impose substantial

penalties because a witness elects to exercise his Fifth Amendment right”—

that principle is far too broad to apply to the specific instance of Ballentine’s

interrogation. Moreover, Lefkowitz concerned a completely different

context: the dispute centered on whether a state could force public

contractors to either waive their Fifth Amendment immunity or face

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2

Because we conclude that the TDCJ officials are entitled to qualified immunity,

we do not address their alternative theories for affirming the district court’s conclusion—

that (1) Ballentine lacks a Fifth Amendment claim because no statements were used against

him in a criminal proceeding, or (2) that Hart’s status as the ultimate decisionmaker for the

GRAD program overrides Broxton’s deposition testimony or evidence suggesting that

Ballentine’s application was terminated for unconstitutional reasons.

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cancellation of, and disqualification for, future contracts. Lefkowitz, 414 U.S.

at 70–75.

Meanwhile, the lack of a majority opinion in McKune, at a minimum,

suggests that the Fifth Amendment self-incrimination issue is not “beyond

debate.” Ashcroft, 563 U.S. at 741. The case does feature a more comparable

setting: the dispute concerned a Kansas inmate who was ordered to

participate in a sexual abuse treatment program. McKune, 536 U.S. at 29–30.

As part of the program, participants were required to complete a “sexual

history form” that required detailing all prior sexual activities, including

incidents that amounted to uncharged criminal conduct. Id. at 30. The

inmate alleged that completing the form amounted to unconstitutional self-

incrimination because the information provided was neither privileged nor

immune from potential prosecution. Id. at 31.

The case produced three opinions from a fractured Court. Justice

O’Connor’s solo concurrence is considered the Court’s holding because it is

“the position taken by those Members who concurred in the judgment on the

narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977)

(citation omitted); see, e.g., Lacy v. Butts, 922 F.3d 371, 377 (7th Cir. 2019)

(describing the O’Connor concurrence as “the narrowest grounds accepted

by the concurring justices”); United States v. Antelope, 395 F.3d 1128, 1133

(9th Cir. 2005) (“[W]e treat Justice O’Connor’s opinion in McKune as

controlling[.]”) In her concurrence, Justice O’Connor acknowledged that

“certain types of penalties are capable of coercing incriminating testimony,”

but concluded that the consequences the inmate faced if he refused to

participate—a “reduction in incentive level,” “a corresponding transfer

from a medium-security to a maximum-security part of the prison,” and

restrictions on canteen visits and visitation privilege—were not “serious

enough to compel him to be a witness against himself.” McKune, 536 U.S. at

49–51 (O’Connor, J., concurring).

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The concurrence also indicated that more severe penalties, such as

“longer incarceration and execution . . . are far greater than those we have

already held to constitute unconstitutional compulsion in the penalty cases.”

Id. at 52. Ballentine references this reasoning and asserts that an extended

period of solitary confinement would also be unconstitutionally compulsive.

But that analogy is not “clearly established” from the opinion: Ballentine did

not face capital punishment or an extended sentence over his blanket refusal

to answer the interrogators’ questions. Ashcroft, 563 U.S. at 742. Simply

stated, reasonable minds can differ as to whether the continuation of solitary

confinement, without any additional penalties or consequences, constitutes

“unconstitutional compulsion” that triggers Fifth Amendment protections.

McKune, 536 U.S. at 52 (O’Connor, J., concurring).

Ballentine’s assertion of a clearly established precedent is further

muddied by two other aspects of his incarceration. First, in Ohio Adult Parole

Auth. v. Woodard, the Supreme Court held that a voluntary clemency

interview offered to a criminal defendant on death row did not violate the

Fifth Amendment because the defendant “merely faces a choice quite similar

to the sorts of choices that a criminal defendant must make in the course of

criminal proceedings, none of which has ever been held to violate the Fifth

Amendment.” 523 U.S. 272, 286 (1998). That holding lends support to

TDCJ’s argument that the choice offered to Ballentine—inform officials on

prison gang activity, or remain in administrative segregation—was not

violative of the Fifth Amendment.

Second, as Justice O’Connor recognized in her concurrence,

“[c]omplicating matters even further is the question of whether the denial of

benefits and the imposition of burdens ought to be analyzed differently in this

area.” McKune, 536 U.S. at 53 (O’Connor, J., concurring). On one hand, as

Ballentine asserts, the TDCJ officials imposed a burden for his silence by, at

a minimum, delaying his eligibility for a program that had the potential of

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ending his solitary confinement. See Spevack v. Klein, 385 U.S. 511, 515 (1967)

(noting that in the self-incrimination context, a “penalty is not restricted to

[a] fine or imprisonment”). On the other hand, as the TDCJ officials claim,

the GRAD program offers a benefit that prisoners must earn—in other

words, they have no automatic entitlement to qualifying for the program

itself. Ballentine’s predicament is not one that “indisputably involves

burdens rather than benefits,” and that vagary further diminishes any clarity

that any prison official could glean from the opinion. McKune, 536 U.S. at

53–54 (O’Connor, J., concurring).

As to his Fifth Amendment claim, then, Ballentine has failed to

identify “legal precedent clearly establish[ing] the officials’ actions as

unlawful.” Stevenson, 113 F.4th at 501. The TDCJ officials are accordingly

entitled to qualified immunity, and because Ballentine only pursues a

damages remedy against them, summary judgment is proper.

B.

Next, Ballentine appeals the summary judgment as to his First

Amendment compelled speech claim. His articulation of this claim is similar

to his Fifth Amendment argument: the TDCJ officials allegedly conditioned

his pre-GRAD investigation, and in turn, his ability to leave solitary

confinement, on his apparent need to make particular statements about his

prison activities. When Ballentine refused to engage in that speech, the

defendants allegedly retaliated by terminating his GRAD investigation.

Again, however, the second step of qualified immunity—whether “legal

precedent clearly established the officials’ actions as unlawful”—bars

Ballentine from recovering damages.3 Stevenson, 113 F.4th at 501.

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3

Because we conclude that the TDCJ officials are entitled to qualified immunity,

we do not address their alternative theories for affirming the district court’s conclusion—

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To start, Ballentine points to “[l]ongstanding Supreme Court

precedent” that establishes protections: to “refrain from speaking,” Wooley

v. Maynard, 430 U.S. 705, 714 (1977); against “involuntary affirmation,” W.

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943); and against

making “compelled statements of fact.” Riley v. Nat’l Fed’n of the Blind of

N. Carolina, Inc., 487 U.S. 781, 797 (1988). Those cases are central to the

First Amendment compelled speech canon, but none involve prisoners’

rights—Wooley involved the placement of state mottos on license plates;

Barnette featured a requirement for students to salute the American flag; and

Riley concerned the solicitation of charitable donations. That is insufficient:

for qualified immunity purposes, precedent must speak to “the specific

context of the case.” Mullenix, 577 U.S. at 12.

Ballentine’s prison-specific cases are also insufficient to demonstrate

clear precedent that the defendants could have knowingly violated. Prison

Legal News v. Livingston, 683 F.3d 201, 213–14 (5th Cir. 2012), broadly states

that prisoners retain constitutional rights that are not “inconsistent with

[their] status as a prisoner” or “with the legitimate penological objectives of

the corrections system.” That generalized balancing inquiry gives no clarity

on the “the violative nature of [the] particular conduct” allegedly engaged in

by Broxton and Hart. Mullenix, 577 U.S. at 12 (emphasis original).

And Burns v. Martuscello, which concluded that “the First

Amendment protects both a prisoner’s right to not serve as an informant, and

to refuse to provide false information to prison officials,” is an out-of-circuit

_____________________

that (1) prison officials deserve significant deference in the realm of penological operations,

and that their operational expertise outweighs Ballentine’s asserted constitutional rights,

or (2) Hart’s alternative explanations for terminating Ballentine’s pre-GRAD investigation

override the retaliatory action, intent to retaliate, and causation elements that Broxton’s

testimony furnished for Ballentine’s First Amendment claim.

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opinion. 890 F.3d 77, 81 (2d Cir. 2018). While it is possible that several out-

of-circuit cases could create a “robust consensus of cases of persuasive

authority” to satisfy the second prong of qualified immunity, Ballentine falls

far short of that showing. D.C. v. Wesby, 583 U.S. 48, 63 (2018); cf.

McClendon v. City of Columbia, 305 F.3d 314, 330 (5th Cir. 2002) (en banc)

(declining to find a robust consensus despite six other circuits recognizing a

particular doctrine). Thus, with regard to his First Amendment claim,

Ballentine has failed to identify controlling “legal precedent clearly

establish[ing] the officials’ actions as unlawful.” Stevenson, 113 F.4th at 501.

The TDCJ officials are accordingly entitled to qualified immunity, and

because Ballentine only pursues a damages remedy, summary judgment is

proper.

C.

Lastly, Ballentine appeals the summary judgment as to his Fourteenth

Amendment procedural due process claim. He posits that his sixteen-year

period of “indefinite solitary confinement restrict[ed] a liberty interest” and

entitled him to basic procedural due process requirements. The claim has

two elements: “first[,] a court must determine whether the plaintiff has a

protected liberty or property interest[,] and then the court must determine

whether the state has provided adequate procedures for the vindication of

that interest.” Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016), as revised

(June 27, 2016) (citing Wilkinson v. Austin, 545 U.S. 209, 213 (2005)).

Assuming in arguendo that Ballentine has an established liberty interest, we

conclude that TDCJ officials have provided adequate procedures to allow

him to vindicate that right.

When a liberty interest is implicated, TDCJ officials must provide

“the minimum requirements of procedural due process,” including a

“reasonable opportunity to challenge his assignment.” Green v. McKaskle,

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788 F.2d 1116, 1124–25 (5th Cir. 1986). Ballentine’s claim here reaches a

double-bind. Ballentine avers that “Cundiff’s handling of [his] grievances

denied him due process,” and that he was accordingly deprived of a

“reasonable ‘opportunity to object’ to his exclusion from the GRAD

program.” But Texas inmates “do[] not have a federally protected liberty

interest in having these grievances resolved to [their] satisfaction.” Geiger v.

Jowers, 404 F.3d 371, 374 (5th Cir. 2005).

Ballentine then asserts that his challenge is not to “the outcome of a

grievance process, [but rather to] the lack of any process at all.” But in a per

curiam opinion issued just over three years ago, this court noted that TDCJ

provided inmates, including those in administrative segregation, with

periodic classification reviews. Striz v. Collier, No. 20-40878, 2022 WL

1421834, at *1 (5th Cir. May 5, 2022) (per curiam). We notably concluded

that those reviews provided “the process that is due through advance notice

of review hearings and an opportunity to speak and submit evidence at those

hearings.” Id.

Crucially, Striz concerned an inmate who, “after being identified as a

member of the Aryan Brotherhood,” was “confined in administrative

segregation for over two decades”—a near-match for Ballentine and his

predicament. Id. We thus find Striz’s holding and reasoning persuasive, and

note that Ballentine has neither asserted nor established that these periodic

reviews were not offered to him. Accordingly, TDCJ officials have afforded

procedures that are consistent with “the minimum requirements of

procedural due process,” McKaskle, 788 F.2d at 1124–25, and summary

judgment on Ballentine’s Fourteenth Amendment claim was proper.

V.

For the reasons discussed above, we AFFIRM the summary

judgment in the defendants’ favor.

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