Marvin Brown v. Brad Livingston

Case: 12-50114 Document: 00512227991 Page: 1 Date Filed: 05/02/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 2, 2013

No. 12-50114

Summary Calendar Lyle W. Cayce

Clerk

MARVIN L. BROWN,

Plaintiff-Appellant

v.

BRAD LIVINGSTON, In his individual and official capacity as the director of

the Texas Department of Criminal Justice; STUART JENKINS, in his

individual and official capacity as the director of the Texas Department of

Criminal Justice Parole Division; RISSI OWENS, Individually and in her

official capacity as an executive officer of the Texas Department of Criminal

Justice Division Board of Pardons and Paroles; CHARLES AYCOCK,

Individually and in his official capacity as an executive officer of the Texas

Department of Criminal Justice Division Board of Pardons and Paroles;

CONRITH DAVIS, Individually and in his official capacity as an executive

officer of the Texas Department of Criminal Justice Division Board of

Pardons and Paroles; JACKIE DENOYELLES, Individually and in her

official capacity as an executive officer of the Texas Department of Criminal

Justice Division Board of Pardons and Paroles; JUANITA M. GONZALEZ,

Individually and in her official capacity as an executive officer of the Texas

Department of Criminal Justice Division Board of Pardons and Paroles;

DAVID G. GUTIERREZ, Individually and in his official capacity as an

executive officer of the Texas Department of Criminal Justice Division Board

of Pardons and Paroles; THOMAS A. LEEPER, Individually and in his official

capacity as an executive officer of the Texas Department of Criminal Justice

Division Board of Pardons and Paroles; RICK PERRY, In his official capacity

as the Governor of Texas,

Defendants-Appellees

Case: 12-50114 Document: 00512227991 Page: 2 Date Filed: 05/02/2013

No. 12-50114

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:10-CV-811

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Marvin Brown is a Texas prisoner currently on mandatory supervised

release. He appeals from the district court’s dismissal of his 42 U.S.C. § 1983

complaint, wherein he attempted to challenge the imposition of more restrictive

supervised release conditions. The district court held that Brown lacked

standing to assert his challenge because his claimed injury under procedural due

process was speculative and hypothetical. We AFFIRM.

I.

Brown was convicted in 1985 of sexual assault of a child and indecency

with a child and sentenced to 40 years in prison. He was released to mandatory

supervision in 1999 and placed in the Superintensive Supervision Program

(SISP), which included electronic monitoring. The Texas Board of Pardons and

Paroles (Parole Board) removed Brown from SISP and electronic monitoring in

2007, although Brown remained on supervised release. Brown alleged that in

2010 his parole officer informed him that the Parole Board would reinstitute the

restrictive SISP and electronic monitoring conditions of his supervision. These

restrictive conditions were allegedly to be implemented pursuant to the

Governor’s new policy initiative to place all high risk sex offenders back on

electronic monitoring.

*

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.

2

Case: 12-50114 Document: 00512227991 Page: 3 Date Filed: 05/02/2013

No. 12-50114

Brown filed a § 1983 suit against the Governor and various officials of the

Parole Board and the Texas Department of Criminal Justice Parole Division

(Parole Division). Brown alleged that his placement back on electronic

monitoring would interfere with a state-created liberty interest in less restrictive

monitoring, and that the implementation of the new policy violated procedural

due process. He further alleged that the policy would interfere with his health

care and therefore violated the Eighth Amendment’s prohibition of cruel and

unusual punishment. Brown moved concurrently for a preliminary injunction

to prevent the Parole Board from imposing the more restrictive monitoring

conditions without due process.

At a hearing on the preliminary injunction motion, testimony showed that

the Parole Board had issued a new condition for supervised release, known as

“condition O.58,” for GPS monitoring of high risk sex offenders. Although a form

of electronic monitoring, condition O.58 was not the same as SISP or the

electronic monitoring used in the SISP. Brown was among the class of offenders

who could potentially be subject to condition O.58. The testimony also showed,

however, that the Parole Board had not yet adopted written policies governing

the application of the condition and had not fully implemented the condition.

Instead, approximately 250 offenders who were already being monitored

electronically were “rolled over” into the new condition. There were

approximately 562 other offenders, including Brown, who could be considered for

the condition at some point, but the Parole Board would first have to vote on

each offender. Testimony showed that the condition had not been imposed on

Brown, that the Parole Board had not considered Brown’s case, and that it was

unknown whether or when the Parole Board might consider it.

The district court denied Brown’s motion for an injunction because

Brown’s claimed injury—the imposition of condition O.58—was not actual and

imminent. Rather, Brown was merely one of many offenders upon whom the

3

Case: 12-50114 Document: 00512227991 Page: 4 Date Filed: 05/02/2013

No. 12-50114

condition might be imposed. The court reasoned that Brown’s claim improperly

relied upon a series of hypothetical and speculative contingencies.

Following the denial of the injunction, Brown moved for leave to amend his

complaint. His amended complaint sought to assert claims only for declaratory,

rather than injunctive, relief. Meanwhile, the defendants moved for judgment

on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that

Brown lacked standing because he had not suffered an injury and his claim of

a future injury was conjectural. In support of their argument, the defendants

relied on the testimony and evidence presented at the preliminary injunction

hearing. They also attached to their motion an affidavit from Christina Propes,

the Section Director, Review and Release Processing, at the Parole Division.

Propes averred that Brown does not currently have a special condition of

electronic monitoring or SISP, and that Brown is not on any list to request

imposition of those conditions.

The district court granted the defendants’ motion, denied Brown leave to

amend the complaint, and dismissed the case. The court held that Brown had

not suffered an actual injury, that he failed to show imposition of the special

parole conditions was imminent, and that his liberty remained unaffected.

Brown now appeals.

II.

On appeal, Brown continues to challenge the purported imposition by the

Parole Board of more restrictive release conditions without notice and an

opportunity to be heard. He contends that he has sufficiently demonstrated

standing to proceed.

Standing is a question of law that we review de novo. Friends of St.

Frances Xavier Cabrini Church v. Federal Emergency Mgmt. Agency, 658 F.3d

460, 466 (5th Cir. 2011). Constitutional standing requires that the plaintiff

show an injury in fact that is traceable to the defendant’s conduct and that the

4

Case: 12-50114 Document: 00512227991 Page: 5 Date Filed: 05/02/2013

No. 12-50114

injury is likely to be redressed by the court. See In re Mirant Corp., 675 F.3d

530, 533 (5th Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560–61, 112 S. Ct. 2130, 2136 (1992)). An “injury in fact” is one that is “(a)

concrete and particularized; and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (internal quotations

and citations omitted).

Brown contends that he presented sufficient evidence of a threatened

injury to demonstrate standing because the defendants admitted at the

preliminary injunction hearing (1) that he meets the qualifications for the

imposition of electronic monitoring and (2) that his name has been submitted to

the Parole Board to be placed under the new policy. Brown relies in part on

testimony from Stuart Jenkins, the director of the Parole Division, and on

newspaper articles he entered into evidence reporting on TDCJ’s use of grant

money to establish electronic monitoring of sex offenders.

Contrary to Brown’s assertions, Jenkins did not admit that condition O.58

would be imposed on Brown. The testimony showed only that Brown was among

the class of offenders upon whom the condition might apply at some time in the

future. Brown merely assumes that because he meets the general qualifications

for the condition, it will be imposed upon him. Testimony showed, however, that

the Parole Board must vote to impose the condition. Stuart testified that no

decision had been made or was imminent in Brown’s case. Stuart had “no idea”

when Brown’s case might be considered. He further testified that the Board had

already declined to impose the condition on some offenders identified as high

risk. Thus, Brown’s purported high-risk status does not necessarily mean the

condition will be imposed. Moreover, Troy Fox, the administrator for the Parole

Board, testified that as part of its evaluation the Board would take into

consideration the fact that Brown had been successfully released to mandatory

supervision since 1999 and had been off monitoring since 2007. Finally, the

5

Case: 12-50114 Document: 00512227991 Page: 6 Date Filed: 05/02/2013

No. 12-50114

affidavit from Propes confirmed that Brown is not currently on a list to request

electronic monitoring. In light of this evidence, we agree with the district court’s

conclusion that Brown’s claimed injury remains hypothetical and conjectural.

Accordingly, he has not shown a concrete injury as required for standing, nor has

he shown that his claims are ripe for review. See Lujan, 504 U.S. at 560, 112

S. Ct. at 2136; United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).

Brown raises additional arguments about the district court’s dismissal of

his suit. He argues first that the district court erroneously considered matters

outside of the pleadings without converting the motion for dismissal into a

motion for summary judgment, and that the court failed to afford him an

opportunity for further discovery pursuant to Federal Rule of Civil Procedure 56.

When the district court considered the evidence presented at the preliminary

injunction hearing and the affidavit from Christina Propes, the district court

thereby converted the motion to dismiss into a summary judgment motion, and

we therefore review the court’s dismissal as a grant of summary judgment.

McIntosh v. Partridge, 540 F.3d 315, 326 (5th Cir. 2008); see also Fed. R. Civ. P.

12(d). Brown does not demonstrate a lack of notice or prejudice from the district

court’s treatment of the motion, as Brown even argued in his response that it

was actually a summary judgment motion, and he contested the record evidence

upon which the defendants relied. See Bossard v. Exxon Corp., 559 F.2d 1040,

1041 (5th Cir. 1977). As noted above, the evidence from the preliminary

injunction hearing showed that Brown was not facing an imminent injury of

placement back on electronic monitoring, and the Propes affidavit confirmed that

fact.

Brown’s assertion that he should have been given an opportunity for

further discovery prior to the district court’s ruling is unavailing. His right to

discovery under Rule 56 was not unlimited, and he bore the burden of showing

that he could not adequately defend against the summary judgment motion

6

Case: 12-50114 Document: 00512227991 Page: 7 Date Filed: 05/02/2013

No. 12-50114

without a continuance as permitted by Rule 56(d).1 See Washington v. Allstate

Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). In his district court pleadings,

Brown requested a hearing or discovery in order to obtain any “facts and

evidence” that might have developed in the interim following the preliminary

injunction hearing. Even assuming this was a sufficient request for a

continuance, Brown did not file an affidavit as required by the rule, nor did he

otherwise aver any facts demonstrating a need for a continuance or resulting

prejudice without a continuance. See id.; see also Access Telecom, Inc. v. MCI

Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999) (stating that issue of

inadequate discovery is waived when nonmovant fails “to file a motion for a

continuance with an attached affidavit stating why the party cannot present by

affidavit facts essential to justify the party’s opposition”). On appeal, he argues

that discovery might have revealed the updated status of the defendants’

planned implementation of condition O.58, but his assertions are conclusory and

his claimed injury remains speculative and conjectural. See Washington, 901

F.2d at 1285 (“The nonmovant may not simply rely on vague assertions that

discovery will produce needed, but unspecified, facts.”). We therefore find no

abuse of discretion by the district court. See Marathon Fin. Ins., Inc., RRG v.

Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009) (“[A] district court’s discretion

in discovery matters will not be disturbed ordinarily unless there are unusual

circumstances showing a clear abuse.” (internal quotation and citation omitted));

Access Telecom, 197 F.3d at 720.

Brown also argues that the district court erroneously denied him leave to

amend his complaint. We agree with the district court that Brown’s proposed

amended complaint was substantially similar to his original complaint, although

the request for declaratory relief in the amended complaint was more detailed.

1

Rule 56(d), which was amended in 2010, contains substantially the same provisions

of former Rule 56(f). See Fed. R. Civ. P. 56 advisory committee notes.

7

Case: 12-50114 Document: 00512227991 Page: 8 Date Filed: 05/02/2013

No. 12-50114

Because Brown’s claimed injury remained speculative, however, the amendment

would have been futile, and therefore the district court did not abuse its

discretion. See Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003) (“[T]he

proposed amended complaint could not survive a Fed. R. Civ. P. 12(b)(6) motion

and allowing [plaintiff] to amend the complaint would be futile.”).

III.

Brown’s fear that he may be placed on more restrictive monitoring is

certainly understandable. According to the complaint, Brown is 61 years old;

suffers from multiple health issues, including coronary artery disease, diabetes,

and renal failure; is considered one-hundred percent disabled by the Social

Security Administration; and has been hospitalized numerous times. He also

has an emergency home health care alert system that apparently would have to

be disabled in the event he is placed on electronic monitoring. Furthermore,

Brown has thus far complied with all of his supervised release terms without

incident, has been off of electronic minoring since 2007, and has submitted

evidence from his therapist showing that he has a very low risk of re-offending.

Brown appears to be a model prisoner, and the state’s resources could be better

spent monitoring releasees of greater risk. Nevertheless, the issue is not

whether the restrictive condition O.58 should be placed on Brown, but rather

whether Brown has shown a substantial likelihood of injury at this time that

affords him standing to maintain his suit. As explained above, we conclude that

he has not.

AFFIRMED.

8