noting that a “plaintiff has the burden to negate the assertion of qualified immunity”
How later courts described this case
- noting that a “plaintiff has the burden to negate the assertion of qualified immunity”
- “To the extent Whitley asserts claims against Appellees in their official capacities, we find such claims also fail for lack of an underlying constitutional violation.”
Written by the judges who cited it.
The opinion
Case: 19-10862 Document: 00516577707 Page: 1 Date Filed: 12/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 14, 2022
No. 19-10862
Lyle W. Cayce
Clerk
Lisa A. Biron,
Plaintiff—Appellant,
versus
Jody Upton, Warden; Leticia A. Armstrong; Emily
Dixon,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-322
Before Stewart, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Lisa Biron, a federal inmate proceeding pro se,
appeals the dismissal of her complaint seeking monetary damages and
injunctive relief arising from prison psychologists’ confiscation of a lengthy
manuscript she had written. Finding no reversible error, we AFFIRM.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 19-10862 Document: 00516577707 Page: 2 Date Filed: 12/14/2022
No. 19-10862
I.
Biron was convicted by a New Hampshire federal jury of eight counts
involving the sexual exploitation of her minor daughter. Biron v. United
States, No. 16-CV-108-PB, 2017 WL 4402394, at *1 (D.N.H. Oct. 2, 2017).
She was sentenced to 480 months’ imprisonment.
Biron is currently housed at Waseca Federal Correctional Institution
in Minnesota, but she previously received mental health and sex offender
treatment at Carswell Federal Medical Center (FMC Carswell) in Fort
Worth, Texas. The judgment entered in Biron’s criminal case recommended
that she “participate in a sex offender treatment program while
incarcerated.” Biron, a former attorney, filed a pro se civil complaint in
Texas state court against federal officials based on actions arising out of her
treatment at FMC Carswell. She sued the following FMC Carswell
personnel: Jody Upton, warden; Leticia A. Armstrong, psychologist; and
Emily Dixon, psychologist. Her claims against Armstrong and Dixon are
based on their confiscation of a 144-page manuscript Biron was writing to
record her conclusions on Christian morality of sexual conduct. In Biron’s
complaint filed in state court, she alleged that she “was directed by God to
research, pray about, study the Bible concerning God’s view of morality
involving sex and sexual conduct, and to record these findings in writing for
use in her rehabilitation and to help educate others.” Her claim against
Upton asserted that he failed to intervene to order the manuscript’s return.
Biron alleged violations of her rights under the First Amendment, the
Religious Freedom Restoration Act (RFRA), the Fifth Amendment, and
Texas law.
The defendants removed the case to federal court, and there moved
to dismiss for lack of jurisdiction and failure to state a claim. In response,
Biron filed an amended complaint seeking money damages for violations of
2
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No. 19-10862
her rights under the Fifth Amendment’s Due Process Clause; RFRA; the
Administrative Procedures Act (APA); and the First Amendment’s Free
Exercise, Freedom of Expression, and Establishment Clauses. She further
seeks injunctive relief ordering the return of her manuscript and cessation of
her psychological treatment. Biron sues Upton in his official capacity and
Armstrong and Dixon in their official and individual capacities. The
defendants renewed their motion to dismiss, and full briefing on the motion
followed.
The district court granted the motion in a twelve-page memorandum
opinion, concluding that Biron’s transfer mooted most of her claims, Biron’s
individual claims are barred by qualified immunity and a lack of a cause of
action under Bivens, and that sovereign immunity bars Biron’s official-
capacity claims. Biron timely appealed. Construed broadly, she challenges
the dismissal of her First Amendment claims under rule 12(b)(6) and of her
official-capacity claims for want of jurisdiction. We have jurisdiction under
28 U.S.C. § 1291 over this appeal from a final judgment dismissing all of
Biron’s claims in this removed case.
II.
We review the district court’s dismissal under rules 12(b)(1) and
12(b)(6) de novo. Childers v. Iglesias, 848 F.3d 412, 413 (5th Cir. 2017) (rule
12(b)(6)); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005)
(rule 12(b)(1)). We take all well-pled factual allegations as true and view them
in the light most favorable to Biron. In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007).
III.
We first address Biron’s individual-capacity claims. The district court
held that the defendants are entitled to qualified immunity against Biron’s
RFRA claim. We have never squarely held that qualified immunity is
3
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No. 19-10862
available as a defense for federal officials against RFRA claims,1 and the
district court undertook no analysis to determine the doctrine’s applicability
here. Cf. Stramaski v. Lawley, No. 20-20607, 2022 WL 3274132, at *6 (5th
Cir. Aug. 11, 2022) (“Our starting point is a conviction that substantial
analysis is necessary before deciding if qualified immunity ever applies to the
[Fair Labor Standards Act].”). But Biron does not contend that qualified
immunity is unavailable against her RFRA claims, and thus she has forfeited
any such argument. We therefore consider whether Biron has alleged a
violation of any clearly established Free Exercise right.
Biron has identified no authority holding that a prison official’s
mistaken designation of an inmate’s personal writings as contraband violates
the Constitution or any federal law. Assuming that Biron’s manuscript was
not sexually explicit, Biron cites no cases in which the Fifth Circuit or the
Supreme Court have held that prison psychologists’ removal of a sex
offender’s writings about “sexual conduct,” erroneously found to be
sexually explicit, violates the Constitution. That failure alone forecloses her
arguments against the applicability of qualified immunity. E.g., Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (noting that a “plaintiff has
the burden to negate the assertion of qualified immunity”).
1
During the pendency of this appeal, the Supreme Court held that damages claims
are permissible under RFRA against federal officials sued in their individual capacities. See
Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020). But the Court did not squarely address
whether the doctrine applies to RFRA claims against federal officials; instead, both the
Government and the plaintiffs in that case “agree[d] that government officials are entitled
to assert a qualified immunity defense when sued in their individual capacities for money
damages under RFRA.” Id. at 493 n.* Though we have not resolved this question, we did
apply the qualified immunity analysis to a RFRA claim against state officials before RFRA
was limited to apply only to federal officials. See Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir.
1996).
4
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Moreover, even if qualified immunity is unavailable here, Biron also
has not established any constitutional violation. First, Biron has made no
showing that the confiscation of her manuscript poses a “substantial[]
burden” on her religious exercise. 42 U.S.C. § 2000bb–1(a), (b). And
although prisoners retain many First Amendment rights, a prison regulation
violates the First Amendment only if it is not “reasonably related to
legitimate penological interests.” Butts v. Martin, 877 F.3d 571, 584 (5th Cir.
2017). Biron has not shown that even a mistaken designation of her
manuscript as sexually explicit violates this tenet. Preserving order and
security are compelling penological interests, see Warner v. Wright, 434 F.
App’x 333, 336 (5th Cir. 2011), prison officials may impose reasonable
restrictions on the type and amount of property that inmates are allowed to
possess, see Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir. 1980), and sexually
explicit material may constitute contraband in the prison context, see
Thompson v. Patteson, 985 F.2d 202, 205–06 (5th Cir. 1993).
Accordingly, we need not address the district court’s conclusions
regarding Biron’s official-capacity claims. If the defendants violated no law
or constitutional provision in their individual capacities, they cannot be liable
in their official capacities. Cf. Whitley v. Hanna, 726 F.3d 631, 639 (5th Cir.
2013) (“To the extent Whitley asserts claims against Appellees in their
official capacities, we find such claims also fail for lack of an underlying
constitutional violation.”).
The judgment below is AFFIRMED.
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Jennifer Walker Elrod, Circuit Judge, concurring in part* and
dissenting in part:
In my view, the majority opinion goes further than it should by holding
that “the defendants violated no law or Constitutional provision.” Ante at 5.
Because I think such a conclusion is premature at this stage, I would reverse
in part and remand for further proceedings.
When reviewing dismissal under rule 12(b)(6), “[w]e accept all well-
pleaded facts as true and draw all reasonable inferences in favor of the plain-
tiff.” BG Gulf Coast LNG v. Sabine-Neches Navigation Dist., 49 F.4th 420,
425 (5th Cir. 2022) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In the operative complaint, Biron alleged that:
“[D]espite Ms. Biron’s refusal to submit to treatment by Emily
Dixon, Defendant Dixon conducted a targeted search of Ms. Biron’s
locker and removed all 144 pages of this manuscript draft and notes
written by Ms. Biron . . . ”;
“Defendant Armstrong advised Ms. Biron that her writing would not
be returned to her and was permanently confiscated because it was
‘sexually explicit’”;
*
I agree with the majority opinion that the individual-capacity damages claims were
properly dismissed because the officials are entitled to qualified immunity and Ms. Biron
has not identified any violation of clearly established law. Ante at 4. And to the extent that
qualified immunity may be inapplicable to her RFRA claims, she has forfeited any such
arguments by failing to brief them. Id. The district court also properly dismissed most of
Biron’s official-capacity injunction claims because she is no longer staying at the Texas
facility (FBOP Carswell). Biron argues that these claims are not moot because she may still
be subject to the same policy in the Minnesota facility. But even if Biron’s assertion is valid,
she failed to name the correct defendants because none of the current defendants are
associated with the Minnesota facility. Thus, I would dismiss these claims without
prejudice.
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No. 19-10862
“It is Ms. Biron’s sincerely held religious belief that she was directed
by God to research, pray about, and study the Bible concerning God’s
view of morality involving sex and sexual conduct, and to record these
findings in writing . . . ”;
“Defendants’ actions in confiscating Ms. Biron’s writing as ‘hard
contraband’ served solely as forced treatment to alter her behavior”;
Her sincerely held religious belief “is diametrically opposed to the
philosophical underpinnings of the secular humanistic discipline of
psychology.”
If these allegations are true, Biron at least has one valid claim for relief
that should not be dismissed: her request to have her writings returned. This
claim is not moot because there is no indication that the writings have left the
defendants’ possession. Biron stated in her brief that the “defendants still
have [her writing],” and the defendants never denied this allegation. Rather,
the defendants argued that they “no longer have custody or authority over
Biron and thus are in no position to return any items to her possession.” But
if the defendants still have possession of the writings, I see no reason why
they cannot deliver the writings to Biron. Presumably, Biron would still be
able to receive mail in her new correctional facility.
Furthermore, viewed in the light most favorable to Biron, these alle-
gations—which we must accept as true at this stage—could raise a factual
issue as to whether the confiscation of her manuscript poses a “substantial
burden” on her religious exercise under RFRA. 42 U.S.C. § 2000bb-1. Con-
sequently, I think more factual development is necessary before we can con-
clude that “the defendants violated no law or Constitutional provision.” Ante
at 5.
7
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No. 19-10862
* * *
Contrary to the district court’s holding, Biron’s request to have her
writings returned to her is not moot because the defendants still have posses-
sion of her writings. And viewed in the light most favorable to Biron, her
allegations, if true, could establish that the confiscation of her manuscript
poses a “substantial burden” on her religious exercise. 42 U.S.C. § 2000bb-
1. Accordingly, I would reverse in part and remand the district court’s dis-
missal of Biron’s injunctive relief claim to have her writings returned.
8