Clarence Brown v. Allison Taylor

Case: 13-10588 Document: 00513587652 Page: 1 Date Filed: 07/12/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-10588 FILED

July 12, 2016

Lyle W. Cayce

CLARENCE D. BROWN, Clerk

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,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Clarence Brown appeals the sua sponte dismissal of his complaint, with

prejudice and without notice and an opportunity to comment. We VACATE

and REMAND.

Case: 13-10588 Document: 00513587652 Page: 2 Date Filed: 07/12/2016

No. 13-10588

I. Background

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, the state initiated civil commitment proceedings against him under the

Texas Sexually Violent Predator Act (“SVPA”), Tex. Health & Safety Code

§ 841.041. 1 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.

The SVPA (at all relevant times) provided that an individual determined

to be likely to commit future acts of sexual predation should be committed “for

outpatient treatment and supervision” to be coordinated by a case manager

with the Texas Office of Violent Sex Offender Management (“OVSOM”). Tex.

Health & Safety Code § 841.081. Brown was required to comply with the

“specific course of treatment provided by the office” and all written

requirements of the office or his individual case manager. Id. § 841.082(a)(4).

Failure to comply with any requirement was at that time punishable as a third-

degree felony. Id. § 841.085(a)–(b).

Brown alleges that he was initially transferred in 2011 to a facility in El

Paso County run by Avalon Correctional Services. Brown claims that his

complaints about mistreatment at that facility caused Avalon to transfer him

to another facility in Fort Worth in 2012. Upon arrival at this second facility,

Brown was told that he had to sign a statement acknowledging his

1As Brown points out, the SVPA was amended in 2015. Those amendments are not

relevant to this case, however, and references in this opinion are to the version in force from

2003 until June 16, 2015, the timeframe encompassing the events in this appeal.

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understanding of facility rules. He alleges that he asked for clarification on the

rules, but Avalon employees at the facility refused to provide further

information, insisting that he sign—per the facility’s rules. Brown refused, and

was arrested on charges of violating the terms of his civil commitment.

Brown filed suit under 42 U.S.C. § 1983 in federal court on October 1,

2012. He described the above course of confinement and alleged various forms

of mistreatment, including, among others, poor conditions and a failure to

provide reasonable medical care. He further alleged that he had been

improperly denied contact with friends and family, denied access to a law

library, and subjected to a variety of other wrongs.

After filing this suit, Brown was found not guilty of violating the terms

of his commitment, and transferred from the Tarrant County Jail to the

Southeast Texas Transitional Center (“STTC”) in Houston, an OVSOM

contractor. After this transfer, he supplemented his complaint a number of

times, adding claims and new prayers for injunctive relief. The district court

reviewed the supplemented complaint and dismissed it, sua sponte and with

prejudice, on March 14, 2013. Brown was not given notice or an opportunity to

respond. He filed a Rule 59(e) motion to alter the judgment, which the district

court denied. The district court received Brown’s 59(e) motion 29 days after the

order of dismissal was entered. Rule 59(e) allows only 28 days to file a motion,

however, the district court did not resolve the matter on this basis. Brown

timely appealed.

On appeal, this court noted the late filing of the Rule 59(e) motion as a

potential jurisdictional problem. See Brown v. Taylor, 569 F. App’x 212, 213

(5th Cir. 2014) [hereinafter Brown I] (unpublished). This court noted that

appellate jurisdiction turned on whether the “prisoner mailbox rule”

announced in Houston v. Lack, 487 U.S. 266, 270–71 (1988), applied to render

Brown’s late-filed Rule 59(e) motion timely. If it did, the motion would have

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been deemed filed on the day that Brown turned it over to STTC authorities,

rendering his eventual notice of appeal timely. Brown I, 569 F. App’x at 213–

14. But the record lacked findings on the extent of Brown’s confinement under

the civil commitment program. This court therefore remanded the case to the

district court “for the limited purpose of making factual findings regarding the

extent of Brown’s confinement and Brown’s ability to file pleadings at the time

he filed his Rule 59(e) motion.” Id. at 214.

On remand, the district court took briefing and evidence from Brown, the

Texas Attorney General’s office, and STTC. Brown filed objections to STTC’s

affidavit, acknowledging that there were mailboxes available at the sites that

he was authorized to visit, but claiming that he was prohibited by OVSOM

regulation from utilizing those mailboxes because he was only allowed to

engage in the “business that was [his] sole purpose for going to” a given place.

The district court made extensive factual findings responsive to the Brown I

remand order, whereafter we appointed appellate counsel to represent Brown

in appearance in this court. After briefing and oral argument, we conclude that

the prisoner mailbox rule applied to Brown, hence we VACATE the district

court’s sua sponte dismissal of Brown’s complaint with prejudice and REMAND

for further proceedings.

II. Discussion

A. The prisoner mailbox rule rendered Brown’s 59(e) motion timely

The prisoner mailbox rule announced in Houston provides that a pro se

inmate’s notice of appeal is deemed filed on the date that the inmate gives the

notice to prison authorities to be sent to the relevant court. 487 U.S. at 270–

71. Houston’s holding was eventually codified in Rule 4(c) of the Federal Rules

of Appellate Procedure, which states that “[i]f an inmate confined in an

institution files a notice of appeal in either a civil or a criminal case, the notice

is timely if it is deposited in the institution’s internal mail system on or before

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the last day for filing.” Fed. R. App. P. 4(c)(1). Federal courts, including our

court, have extended Houston’s rationale to apply to a variety of other filings

by pro se prisoners. 2

We held in Brown I that the prisoner mailbox rule applies to Rule 59(e)

motions, 3 and the law of the case doctrine applies. See Musacchio v. United

States, 136 S. Ct. 709, 716 (2016) (“[W]hen a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages

in the same case.” (quoting Pepper v. United States, 562 U.S. 476, 506, (2011))).

The record in Brown I was insufficiently developed for us to determine whether

the prisoner mailbox rule applied to Brown, so we remanded to the district

court to make factual findings on the extent of Brown’s confinement and his

ability to file pleadings at the time he filed his Rule 59(e) motion. Brown I, 569

F. App’x at 214. If the mailbox rule applies, Brown’s motion, received a single

day late, is presumed timely. See United States v. Young, 966 F.2d 164, 165

(5th Cir. 1992).

“The prison mailbox rule applies to prisoners who are proceeding pro se.

When a litigant is not incarcerated, however, the prison mailbox rule does not

apply.” Brown I, 569 F. App’x at 213 (citation omitted). When Brown filed his

Rule 59(e) motion he was civilly committed under the SVPA. While was no

longer incarcerated pursuant to a criminal conviction, he was not a free man.

Given our holding in Brown I, the question is whether Brown was functionally

a prisoner for the purpose of the mailbox rule: based on the district court’s

factual findings, we conclude that he was.

2 See Spotville v. Cain, 149 F.3d 374, 376–77 (5th Cir. 1998) (collecting and discussing

cases in which this and other courts have extended the holding in Houston).

3 See also Sandoval v. Houston, 131 F.3d 141 (5th Cir. 1997) (unpublished); Gann v.

Johnson, 116 F.3d 476 (5th Cir. 1997) (unpublished).

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While not a prisoner under the Texas Department of Criminal Justice,

Brown was civilly committed, requiring him to remain at the STTC twenty-

four hours a day, seven days a week. Brown was only allowed to leave STTC

with specific, pre-approved, written permission by his case manager or a

program specialist. To ensure compliance, Brown was required to submit to

GPS tracking. In the three-month period ending with Brown’s Rule 59(e)

submission, February–April 2013, the district court found that Brown was only

permitted to leave STTC on six occasions: twice to use the law library, and

four trips to the hospital. 4

The district court also found that (1) both the law library and hospital

that Brown visited had a U.S. Postal mailbox in the lobby and that (2) STTC

maintains an internal mailbox for the use of its residents. Neither of these

findings changes our analysis. First, OVSOM “Supervision Requirements”

specifically prohibited Brown from engaging in any business at a given location

save for the sole business authorized by his case manager. Thus, under

OVSOM rules—and a failure to follow the rules “may result in legal action,” as

Brown’s own case demonstrates—he was prohibited from using the mailboxes

at the hospital and library, even if he was physically capable of doing so.

Second, the internal mail system here is indistinguishable from that in

Houston. STTC staff collected prisoner mail from the internal mailbox and

gave it to the U.S. Postal Carrier. In Houston, prisoners gave their notice of

appeal to prison authorities to forward to the court, and the Supreme Court

held that a prisoner “filed” his notice when “he delivered the notice to prison

authorities.” 487 U.S. at 270. This is because prisoners could not “take the

4This fits with Brown’s unchallenged assertion that he was on “level II” confinement

during the relevant time period. Brown provided the court with an OVSOM “Policy and

Procedure” document describing its different levels of supervision. Level Two “clients,”

according to the policy, “shall be permitted to leave the residence or residential facility to

receive medical attention, meet registration requirements, and attend treatment.”

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steps other litigants can take to monitor the processing of [his] notices of appeal

and to ensure that the court clerk receives and stamps [his] notices of appeal

before the . . . deadline.” Id. at 270–71. So too, here. Perhaps most importantly,

Brown—like the prisoner in Houston—could not “personally travel to the

courthouse to see that the notice is stamped ‘filed’ or to establish the date on

which the court received the notice.” Id. at 271. Rather, Brown, as a pro se civil

detainee, had “no choice but to entrust the forwarding of his [Rule 59(e) motion]

to [STTC] authorities whom he cannot control or supervise and who may have

every incentive to delay.” Id. Given the level of Brown’s confinement and his

inability to file his Rule 59(e) motion himself, the prisoner mailbox rule as

invoked in Brown I applied and his Rule 59(e) motion was timely.

B. The district court’s sua sponte dismissal of Brown’s complaint was error

The district court dismissed Brown’s complaint sua sponte, with

prejudice and without notice and an opportunity to respond. When a party like

Brown proceeds in forma pauperis, the district court has the power on its own

motion to dismiss the case for failure to state a claim. 28 U.S.C.

§ 1915(e)(2)(b)(ii). But this power is cabined by the requirements of basic

fairness: a district court may only dismiss a case sua sponte after giving the

plaintiff notice of the perceived inadequacy of the complaint and an

opportunity for the plaintiff to respond. See, e.g., Davoodi v. Austin Indep. Sch.

Dist., 755 F.3d 307, 310 (5th Cir. 2014).

This rule against no-notice sua sponte dismissal is subject to two

exceptions: if the dismissal is without prejudice, or if the plaintiff has alleged

his best case. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). The

dismissal here was with prejudice, so the first exception is inapplicable. The

“best case” exception stems from Jacquez v. Procunier, 801 F.2d 789, 793 (5th

Cir. 1986) and is, as this court has since clarified, narrow. The key factors in

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Jacquez were that the plaintiff had (1) “repeatedly declared the adequacy of

that complaint in a lengthy response to defendant’s motion to dismiss,” and (2)

“refused to file a supplemental complaint even in the face of a motion to

dismiss.” Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007).

Neither factor was present here. Brown did not receive notice that his

complaint might be inadequate, much less an opportunity to amend it or argue

against that characterization. Nothing in the record allows us to infer that

Brown could not or would not amend his complaint to allege more specific facts

had the district court informed him of such a deficiency.

III. Conclusion

For the foregoing reasons, though we express no opinion on the merits of

Brown’s complaint, we VACATE the district court’s order dismissing Brown’s

complaint with prejudice and REMAND for further proceedings.

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