Petition for Writ of Certiorari — Lonnie Kade Welsh, Petitioner v. Correct Care Recovery Solutions, et al.
Supreme Court briefJun 7, 2021
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Appendix A
Fifth Circuity Panel Opinion
Appendix B
Petition for Rehearing on en banc
Appendix C
Applet Brief
Appendix D
Texas Health and Safety Code 841.0831 (b)
The tiered program must provide for the seamless transition of a committed person from a total
confinement facility to less restrictive housing and supervision and eventually to release from civil
commitment, based on the person’s behavior and progress in treatment.
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Appendix E
Texas Health and Safety code 841.0838 (a)(2)(b)(l)
V
The restraint is used as a last resort; necessary to stop or prevent imminent physical injury to the
committed person or another.
Appendix F
18 U.S. C. 3583 (d)(2)
Involves no grater deprivation of liberty than is reasonably necessary for the purposes set forth in
section 3553 (a)(2)(B), (a) (2) (c), and (a) (27) (D).
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APPENDIX
A
FIFTH CIRCUIT PANEL OPINION
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United States Court ofAppeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLEW.CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
February 09, 2021
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding:
Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 19-10825
Welsh v. Correct Care Recovery
USDC No, 5:18-CV-20
Enclosed is a copy of the court's decision. The court has entered
judgment under Fed., R. App. P. 36.
(However, the opinion may yet
contain. typographical or printing errors which are subject to
correction.)
J
Fed. R. App. P. 39 through 41, and 5th Cir. R. 35, 39, and 41 govern
costs, rehearings, and mandates. 5th Cir. R. 35 and 40 require you
to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order.
Please
^ ripp1.1^ .th4e0
of0lSn?
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5th Cir. R. 41 provides that a motion for
a stay of mandate under Fed. R. App. P. 41 will not be granted
simply
upon , request. The petition must set forth good cause for
.
a stay or clearly demonstrate that a substantial question will be
presented to the Supreme Court.
Otherwise, this court may deny
the motion and issue the mandate immediately.
Pr° Se Cases.
If you were unsuccessful in the district court
and/oronappeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under Fed. R. App. p. 41.
The
issuance of the mandate does not affect the time, or your right
to file with the Supreme Court.
'
^Q.urt i Appointed Counsel.
Court appointed counsel is responsible
, Ting petition (s) Bor rehearing (s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order.
If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing ana certiorari":
Additionally, you MUST confirm that
‘-his information was given to your client, within the body of your
motion to withdraw as counsel.
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®mteti States! Court of Appeals
for tlje Jfiftf) Circuit
United States Court of Appeals
Hfth Circuit
FILED
February 9, 2021
No. 19-10825
Lyle W. Cayce
Clerk
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Correct Care Recovery Solutions; Chris Woods,
Individually as Director ofSecurity, Texas Civil Commitment Centerfor Correct
Care Recovery Solutions', Amy Goldstein, Individually as Clinical
Director at Texas Civil Commitment Centerfor Correct Care Recovery
Solutions; Edward Towns, Individually as Clinical Director at Texas
Civil Commitment Centerfor Correct Care Recovery Solutions; Bill
V anier, Individually as Captain ofSecurity at Texas Civil Commitment
Centerfor Correct Care Recovery Solutions', Et Al.,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CV-20
Before Stewart, Higginson, and Wilson, Circuit Judges.
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Stephen A. Higginson, Circuit Judge-.*
Lonnie Kade Welsh, Texas prisoner # 6516607, brought this action
under 42 U.S.C. §§ 1983,1985, and 1986 asserting more than a dozen claims
against even more defendants. Welsh was a civilly committed sexually violent
predator (SVP) prior to his imprisonment. His claims concern assorted
wrongs he allegedly suffered while civilly committed. But he filed suit only
later, proceeding pro se and in forma pauperis (IFP).
Welsh consented to proceedings before a magistrate judge. The
magistrate judge dismissed Welsh’s suit after obtaining authenticated
records and holding a Spears1 hearing. In a meticulous order, the magistrate
judge determined that some defendants were not amenable to suit because
they had no juridical existence, some defendants enjoyed prosecutorial
immunity, some claims were Heck2-hzrre&, and other claims were frivolous.
The magistrate judge dismissed all of Welsh’s federal claims with prejudice,
denied leave to amend the complaint, and denied Welsh’s motion for
reconsideration and motion to vacate judgment under Federal Rules of Civil
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Procedure 59(e) and 60(b). Welsh timely appealed, and the magistrate judge
granted his motion to proceed IFP on appeal.
* Pursuant to 5th Circuit Rule 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 Sth Circuit Rule 47.5.4.
1 Spears v. McCotter, 766 F.2d 179,181-82 (5th Cir. 1985), abrogated on othergrounds
by Neitzke v. Williams, 490 U.S. 319 (1989). A Spears hearing “aims to flesh out the
allegations of a prisoner’s complaint to determine whether in forma pauperis status is
warranted or whether the complaint, lacking an arguable basis in law or fact, should be
dismissed summarily as malicious or frivolous under section 1915[].” Eason v. Holt, 73 F.3d
600,602 (Sth Cir. 1996).
2 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Under Heck, a § 1983 plaintiff
generally cannot recover damages for harm caused by actions whose unlawfulness would
upset a conviction or sentence without first proving that the conviction or sentence has
been reversed or invalidated. Id.
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“We review a district court’s dismissal of an in forma pauperis
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse
of discretion. A claim may be dismissed as frivolous if it does not have an
arguable basis in fact or law. ” Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir.
2009) (citations omitted). By and large, we find the magistrate judge’s careful
analysis correct. Accordingly, we AFFIRM in large part, VACATE in part,
and REMAND for further proceedings.
I.
Welsh first challenges the magistrate judge’s dismissal of his
excessive-force claims, which arose out of four separate incidents between
Welsh and security personnel during his period of civil commitment. The
magistrate judge dismissed two of these claims as Heck-barred. The Supreme
Court held in Heck v. Humphrey that, “in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus ....” 512
U.S. at 486-87. Welsh argues that Heck does not apply because one
underlying conviction has been overturned and the other is separable from
his § 1983 claim. The magistrate judge dismissed Welsh’s other two
excessive-force claims, applying an objective reasonableness standard and
finding that the force used against Welsh was not objectively unreasonable.
A.
Welsh argues that the excessive-force claim that he raised in Count 10
of his amended complaint is no longer Heck-b&nzd. This claim arose from a
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November 2017 incident in which several officers used force on him after he
refused to accept housing. In the original judgment, which was entered on
April 24, 2019, the magistrate judge noted that this incident resulted in
Welsh filing a criminal complaint against officers, alleging that they had
assaulted and injured him. The resulting investigation found these allegations
untrue and resulted in Welsh receiving a new criminal conviction for
fabricating evidence. The magistrate judge concluded that this claim was
barred by Heck because success on it would necessarily undermine his
conviction for fabricating evidence against the officers.
In his Rule 59(e) motion, which was filed in May 2019, Welsh pointed
out that this conviction was overturned by the intermediate appellate court
in February 2019. Welsh v. State, 570 S.W. 3d 963,965 (Tex. App. 2019). The
magistrate judge acknowledged this decision but noted that the State had
filed a petition for discretionary review with the Texas Court of Criminal
Appeals. On that basis, the magistrate judge concluded that the order
vacating the conviction was not yet final and that the conditions of Heck thus
had not been met.
We need not determine whether the magistrate judge erred in holding
that Heck applied to Welsh’s excessive-force claim based on the pendency of
the State’s petition for review of the Texas appellate court’s reversal of
Welsh’s evidence-fabrication conviction.3 Welsh now informs us that the
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3 Some courts have agreed with the magistrate judge that a reversed conviction
must be afinal one to satisfy Heck. See, e.g., Michaels v. New Jersey, 955 F. Supp. 315,32425 (D.N.J. 1996) (“[I]n order to maintain a § 1983 claim for an unconstitutional conviction
or imprisonment where success on such a claim would necessarily imply the invalidity of
an outstanding or potential conviction, there must first be a ‘final’ termination of the
criminal proceeding in favor of the plaintiff. Without such finality, the potential for
inconsistent determinations in the civil and criminal cases will continue to exist...,”);
Kelly v. Serna, 87 F.3d 1235,1240 n.3 (11th Cir. 1996) (holding similarly). But our precedent
may be in tension with that approach. See Davis v. Zain, 79 F.3d 18,18-20 (5th Cir. 1996)
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petition for review has been denied and asserts that his claim is no longer
i&d?-barred. Welsh is correct that Heck does not bar a § 1983 action raising
claims concerning an overturned conviction. Clayv. Allen, 242 F.3d 679,681
(5th Cir. 2001). Because of the possibility of an intervening conviction
reversal, this court has reminded district courts that “[a] preferred order of
dismissal in Heck cases decrees, ‘Plaintiffs] claims are dismissed with
prejudice to their being asserted again until the Heck conditions are met.’”
Deleon v. City ofCorpus Christi, 488 F.3d 649, 657 (5th Cir. 2007) (emphasis
added) (quoting Johnson v. McElveen, 101 F.3d 423,424 (5th Cir. 1996)). Yet
here, the magistrate judge dismissed Welsh’s claim with prejudice, full stop.
Regardless whether dismissal of this claim is reviewed de novo or for an abuse
of discretion, because Heck’s conditions have now been met, the dismissal of
Welsh’s excessive-count claim under Count 10 is VACATED and
REMANDED.
u.
Welsh next challenges the magistrate judge’s dismissal of the
excessive-force claim he raised in Count 1. This claim arose from another
run-in with security personnel, this one in January 2016: Welsh alleges that
several officers used force on him in retaliation for his exercise of his
purported free-speech right to refuse orders. According to the complaint,
Welsh had an argument with Officer Hawthorne, who refused to permit him
to return to his housing area. Captain Salazar then ordered Welsh to follow
her so she could place him in isolation; Welsh refused and returned to his
housing area. Salazar returned with other officers, who informed Welsh that
he had to go to isolation and refused to let him bring his things. Welsh resisted
(concluding that a plaintiff whose conviction for murder was overturned on the grounds of
prosecutorial misconduct and subornation of perjury could bring a § 1983 claim despite
Heck, even though he faced retrial on the murder charge).
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being taken to isolation; once there, Captain Vanier allegedly ground
handcuffs into Welsh’s ring finger injuring him. At some point during this
episode, Welsh bit Salazar. He later pleaded guilty to assault causing bodily
injury. The magistrate judge determined that this claim, too, was Heck-barred
because a finding that Salazar, Vanier, and others used excessive force against
Welsh “would necessarily imply the invalidity of Welsh’s underlying
[assault] conviction.”
Welsh does not argue that this conviction has been overturned.
Rather, he contends that Vanier’s application of excessive force against
Welsh with the handcuffs is separable from Welsh’s assault on Salazar for
purposes of his § 1983 claim. This may be so.
The inquiry whether an excessive-force claim is barred under Heck is
“analytical and fact-intensive” and requires a court to consider whether
“success on the excessive force claim requires negation of an element of the
criminal offense or proof of a fact that is inherently inconsistent with one
underlying the criminal conviction.” Bush v. Strain, 513 F.3d 492, 497 (5th
Cir. 2008) (emphasis added). In Bush, we held that Heck did not bar a plaintiff
convicted of resisting arrest from bringing an excessive-force claim arising
from the same conduct where the officer’s use of force allegedly continued
after the plaintiff was handcuffed and had ceased resisting. Id. at 498-500.
Here, the amended complaint acknowledges that Welsh “resisted” Salazar’s
and others’ efforts to place him in an isolation cell. But, fairly read, the
complaint alleges that Vanier’s use of excessive force occurred only laterafter Welsh had been subdued, shackled, and transported to the isolation cell.
As in Bush, success on Welsh’s excessive-force claim would not necessarily
imply the invalidity of his assault conviction. Heck, 512 U.S. at 486-87. We
therefore are compelled to VACATE and REMAND the magistrate
judge’s dismissal of Welsh’s Count 10 excessive-force claim. We offer no
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opinion as to the resolution of this claim once the Heck impediment is
removed.
B.
Welsh also challenges the dismissal of excessive-force claims arising
from incidents occurring on March 21, 2017 (Count 6) and March 22, 2017
(Count 7). Each incident involved officers forcefully closing the food slot in
Welsh’s door on his hand. As the magistrate judge correctly noted in his
analysis, this court has not yet announced the standard to be applied to an
excessive-force claim raised by an SVP. In the absence of controlling caselaw,
the magistrate judge applied an objective reasonableness standard as
announced by the Supreme Court in Kingsley v. Hendrickson, 576 U.S. 389
(2015). The magistrate judge applied this standard, finding it persuasive that
the Eighth Circuit applied a similar, pre-Kingsley objective reasonableness
standard to excessive-force claims brought by involuntarily committed
persons. See Andrews v. Neer, 253 F.3d 1052,1061 (8th Cir. 2001). Because
Welsh does not contest this standard, we assess the issue with reference to
the Kingsley objective reasonableness standard.
In Kingsley v. Hendrickson, the Supreme Court set the legal standard
for use of force against pretrial detainees, announcing that “a pretrial detainee
must show only that the force purposely or knowingly used against him was
objectively unreasonable.” 576 U.S. at 396-97. Under Kingsley, “objective
reasonableness” turns on the “facts and circumstances of each particular
case” and various factors “may bear on the reasonableness or
unreasonableness of the force used” :
the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
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reasonably perceived by the officer; and whether the plaintiff
was actively resisting.
Id. at 397. In determining objective reasonableness, “a court must also
account for the ‘legitimate interests that stem from [the government’s] need
to manage the facility in which the individual is detained,’ appropriately
deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are
needed to preserve internal order and discipline and to maintain institutional
security. ’ ” Id. (alterations in original) (quoting Bell v. Wolfish, 441 U.S. 520,
540 (1979)).
With respect to the claim arising from the March 21 incident, Welsh
admitted at the Spears hearing that an officer kicked the food slot in his door
closed, causing bruising to his left hand, after he refused to remove his hands
from the slot for the 15 minutes immediately preceding its forceful closure.
The magistrate judge concluded that the force used was not objectively
unreasonable because Welsh’s refusal to move his hands after repeatedly
being told to do so justified a use of force and because Welsh was actively
resisting and posing a threat to institutional order. Additionally, Welsh
admitted that he had removed his hands from the slot but, as the officer was
attempting to close it, Welsh “intentionally stuck his foot and hand into the
slot to thwart [the officer’s] efforts to close it, putting himself in harm’s
way.” Given these facts, the magistrate judge could not conclude that the
officer did not try to limit the force used, especially given that Welsh actively
resisted orders to remove his hands so the food slot could be closed. Finally,
the magistrate judge concluded that the bruising and swelling that Welsh
suffered was no more than a de minimis injury. The dismissal of this claim
was not an abuse of discretion. Brewster, 587 F.3d at 767.
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With respect to the claim arising from the March 22 incident, the
magistrate judge explained that when an officer ordered Welsh to go to the
food slot to get his food, Welsh threw water on the officer, poked his metal
shower rod through the food slot, and put his hands in the slot. Officers then
kicked the slot without warning, which caught Welsh’s hand and caused pain,
swelling, and bleeding. The magistrate judge noted that, although the officer
may not have given warning before closing the slot, authenticated video of
the incident showed that the officer tried to kick it closed after Welsh
removed his hands, but Welsh put his hands back in the slot, thus “ placing]
his hands in harm’s way.” The video ends with the food slot still open;
officers tried to kick it closed only once.
The magistrate judge again concluded that the officers were justified
in using some force after Welsh threw water through the slot and brandished
a metal shower rod due to the threat posed to institutional security by these
acts, especially in light of Welsh’s behavior the day before this incident.
Although Welsh complained of pain in his hand, X-Rays showed no injury,
and Welsh did not allege long-term damage. In light of all these factors, the
magistrate judge concluded that Welsh had not raised a viable excessive-force
claim.
As with the claim related to the March 21 incident, the magistrate
judge’s reasoning is not an abuse of discretion. Brewster, 587 F.3d at 767.
II.
Next, Welsh argues that the magistrate judge erred by dismissing his
Count 1 claim that the defendants retaliated against him for exercising his
right to free speech by placing him in isolation. This claim arises from the
January 2016 incident.
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To establish a retaliation claim, a civilly committed person must show
that the defendant intentionally committed a retaliatory adverse act due to
his exercise of a constitutional right. Brown v. Taylor, 911 F.3d 235, 245 (5th
Cir. 2018). The plaintiff must either adduce direct evidence of retaliation or
“allege a chronology of events from which retaliation may plausibly be
inferred.” Id. at 245 (internal quotation marks and citation omitted).
The magistrate judge held both that Welsh5 s refusal to comply with
officers * orders was not constitutionally protected speech and that he had not
shown that the defendants used force on him due to his alleged exercise of
his right to free speech. As the magistrate judge noted, both Welsh s own
complaint and an authenticated video of this incident show that he refused to
comply with officers’ orders. The magistrate judge further concluded that
Welsh had not shown that the defendants were retaliating against him
because he engaged in protected speech, but instead that the adverse action
of which he complained was taken because he “repeatedly disobeyed orders
and threatened institutional security.”
We agree. Civilly committed persons retain First Amendment rights,
but, as we have previously suggested, restrictions on these rights ‘‘are
permissible so longas they advance the state’s interest in security, order, and
rehabilitation.” Bohannan v. Doe, 527 F. App’x 283, 294 (5th Cir. 2013)
(citing Ahlers v. Rabinowitz,, 684 F.3d 53, 58, 64 (2d Cir. 2012)). Welsh’s
alleged “natural civil disobedience... by stiff[en]ing his body and holding on
to various objects to resist” being seized by officers after informing them that
he would not go to isolation as he had been ordered does not amount to
protected First Amendment speech. Further, Welsh’s actions infringed
upon the state ’ s interests in security and order. See id.
In addition, Welsh has not shown that his alleged protected speech
resulted in retaliation. Welsh’s own complaint shows that he got into an
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argument with Officer Hawthorne, was ordered into isolation, engaged in his
alleged protected speech by resisting being taken to isolation, and was taken
to isolation. Retaliation may not be plausibly inferred from this sequence of
events. See Brown, 911 F.3d at 245. Instead, Welsh’s account of this incident
shows that his alleged protected speech occurred after he had been ordered
to isolation and that the order was simply carried out.
Regardless of whether Welsh’s retaliation claim is reviewed de novo
or for an abuse of discretion, Welsh has not shown that the magistrate judge
erred by dismissing it. See Morris, 702 F.3d at 189.
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HI.
Welsh next challenges the magistrate judge’s rejection of his access to
courts claim in Count 11, in which he asserted that he was denied access to
his legal materials for two weeks while he was in isolation. He argues that he
explained during the Spears hearing that he was hampered in his efforts to file
a brief to this court in Welsh v. Texas Civil Commitment Office, docket sheet
TXND 5-.17-CV-083.
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In the prison context, to prevail on a claim of denial of right of access
to the courts, an incarcerated person must show that his ability to pursue a
nonfrivolous legal claim was hampered by the defendants’ actions and that
his position as a litigant was prejudiced by the alleged violation. Lewis v.
Casey, 518 U.S. 343, 351-53 & n.3 (1996). We have previously applied Lewis
to an access-to-courts claim raised by a civilly committed SVP. See Day v.
Seiler, 560 F. App’x 316,318-19 (5th Cir. 2014).
Regardless of whether this claim is reviewed de novo or for an abuse
of discretion, Welsh has not shown that the magistrate judge erred by
dismissing it. See Morris, 702 F.3d at 189. In his amended complaint, Welsh
explained that this claim arose from his being placed in isolation and deprived
of his legal materials for two weeks in November 2017. Welsh filed his notice
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of appeal in Welsh in September 2017. Although the appeal was initially
dismissed because Welsh failed to file a brief, it was reopened, and Welsh
filed his briefin March 2018. Welsh does not explain how his separation from
his legal materials during the time in question prejudiced his position in
Welsh, 17-11092, and it is not apparent. Accordingly, Welsh has not shown
that the magistrate judge erred by dismissing it. See Morris, 702 F.3d at 189.
IV.
Next, Welsh challenges the magistrate judge’s dismissal of several
claims, starting with failure-to-protect claims. The specific parts of the
amended complaint he cites in support of this argument do not explicitly
argue that the defendants failed to protect him from being assaulted by other
prisoners; rather, the closest his allegations come to a failure-to-protect claim
is an assertion that the defendants infringed his rights by not bringing
criminal charges against officials who allegedly assaulted him. Insofar as
Welsh argues that the magistrate judge erred by not considering claims of
failure to protect, this argument is unavailing because he raised no such
claims in his amended complaint. Cf. Farmer v. Brennan, 511 U.S. 825, 83233 (1994).
Insofar as Welsh contends that he sought relief under the
Constitution’s Privileges and Immunities Clause and Equal Protection
Clause, rather than the Due Process Clause, he has not shown that the
magistrate judge erred by reading his complaint as raising due process claims.
The disputed claims aver that the defendants infringed his rights by not
bringing criminal charges against officials who assaulted him. Moreover, two
of the listed counts explicitly invoke the Fourteenth Amendment. See Jordan
v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016) (discussing Fourteenth
Amendment’s due process clause). Further, the Privileges and Immunities
Clause is inapt because it “prevents a state from discriminating against
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citizens of another state in favor of its own citizens,” and Welsh does not
allege that he was treated differently than a citizen of another state. White v.
Thomas, 660 F.2d 680,685 (5th Cir. 1981).
Welsh does invoke the Equal Protection Clause in one of the listed
claims, arguing that Detective Rodriguez and the City of Littlefield Police
Department violated his equal-protection rights by not bringing charges
against personnel who assaulted him. The Equal Protection Clause “keeps
governmental decision makers from treating differently persons who are in
all relevant respects alike.” Harris v. Hahn, 827 F.3d 359,365 (5th Cir. 2016)
(internal quotation marks and citation omitted). That does not describe
Welsh’s allegations; Welsh simply asserts that he was denied his rights when
criminal charges were not brought against those who assaulted him.
Regardless of whether these claims are reviewed de novo or for an abuse of
discretion, Welsh has not shown that the magistrate judge erred by
dismissing them. See Morris, 702 F.3d at 189.
V.
Welsh challenges the magistrate judge’s dismissal of the false arrest
claims he raised in Counts 1 and 11 of the amended complaint. The former
pertains to the January 2016 incident. Because the false arrest claim would
undermine his conviction for assault causing bodily injury, and because he
has not shown that this conviction has been overturned, this claim is Heckbarred. See Wells v. Bonner, 45 F.3d 90,95 (5th Cir. 1995).
Although he asserts that he raised a false arrest claim in Counts 11-2
and 11-3 of the amended complaint, review of the complaint shows that he
did not explicitly raise false arrest claims but instead grounded these claims
in due process, and this is how the magistrate judge reasonably read these
portions of the amended complaint. See Hernandez v. Thaler, 630 F.3d 420,
426-27 (5th Cir. 2011) (explaining that pro se pleadings are construed
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according to their substance, not their labels). Welsh has not shown error in
connection with this determination.
The magistrate judge also read Count 11 as raising a claim that
defendants conspired to bring false charges against him in connection with
the November 2017 incident and did not promptly bring him before a
magistrate judge in connection with these charges. The magistrate judge
determined that the false-charges claim was //^-barred due to Welsh’s
evidence-falsification conviction, and that the claim concerning prompt
appearance before a magistrate judge was unavailing because Welsh appeared
before a magistrate judge within the required time. We agree with the latter
holding. But because (as discussed) Welsh’s underlying evidencefalsification conviction has been overturned, we conclude that his falsecharges claim grounded in the November 2017 incident is not //^-barred.
We are therefore compelled to VACATE and REM AND the false-charges
claim because the magistrate judge stopped after making his Heck
determination. We offer no opinion as to the appropriate resolution of this
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claim.
VI.
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Welsh also challenges the magistrate judge’s dismissal of his claims in
Count 9 concerning an illegal search and privacy. In these claims, he
challenged the need for security personnel to be present during an offsite
urology medical examination and asserted that they should have looked away
when a camera was inserted into his penis. In his Rule 59(e) motion, Welsh
complained that the magistrate judge did not consider this claim. In his order,
the magistrate judge explained that he had considered each claim raised in
the amended complaint, even those not explicitly analyzed. The magistrate
judge also noted Welsh’s failure to allege that the dismissal contained
manifest errors of law or fact.
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An appellant waives an issue ifhe “fails to adequately brief it.55 United
States v. Martinez,, 263 F.3d 436, 438 (5th Cir. 2001). Among other
requirements, an appellant’s brief must contain the “appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” FED. R. APP. P. 28(a)(8)(A). This
court has deemed arguments waived on appeal when an appellant “d[oes]
not discuss [an] issue or cite any authority.” United States v. Trujillo, 502
F.3d 353, 360 (5th Cir. 2007) (citation omitted). “ Although/ro se briefs are
to be liberally construed, pro se litigants have no general immunity from the
rule that issues and arguments not briefed on appeal are abandoned. ” Geiger
v. Jowers, 404 F.3d 371,373 n.6 (5th Cir. 2005). Here, Welsh does not dispute
the validity of his urology examination nor that it required exposure of his
genital area. Instead, without legal or factual argument elaborating a
cognizable privacy violation caused by the alleged failure of security
personnel to “avert their gaze, ” he has waived this contention on appeal.
VII.
Welsh argues that the magistrate judge erred by dismissing his claims
in Count 5 concerning a denial of therapy and a diagnosis of ephebophilia,
both of which he asserts prolonged his period of civil commitment. Welsh
asserts that various defendants denied him therapy in violation of his “liberty
interests under the Constitution.” Welsh explains that depriving him of
therapy implicates his liberty interest because “ release by promotion through
the Tier system ... can only be achieved through therapy.” The magistrate
judge reasonably interpreted Welsh’s amended complaint as raising due
process claims, rather than deliberate indifference and failure to train claims.
Welsh has not shown error in connection with the magistrate judge’s
interpretation of these claims.
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In the civil commitment context, “due process requires that the
conditions and duration of confinement... bear some reasonable relation to
the purpose for which persons are committed.” Seling v. Young, 531 U.S.
250, 265 (2001). The Texas civil commitment statute authorizes the civil
commitment of SVPs for the purpose of “long-term supervision and
treatment/” Tex. HEALTH & SAFETY CODE ANN. § 841.001. Thus, as this
court has held, a facility’s failure to provide any treatment can infringe on an
SVP’s substantive due process rights. Brown, 911 F.3d at 244.
Here, Welsh has not sufficiently alleged how the conditions ofhis civil
commitment lacked a reasonable relation to Texas’s goals of “long-term
supervision and treatment” of SVPs. As the magistrate judge noted, Welsh
concedes that he was offered and received therapy during his commitment.
Further, Welsh makes no showing that receiving additional treatment would
have expedited his release, so his assertion that any deprivation of therapy
impeded his release is “too attenuated to invoke further due process
protections.” Senty-Haugen v. Goodno, 462 F.3d 876, 887 (8th Cir. 2006)
(internal quotation marks and citation omitted).
Similarly, Welsh asserts that defendants violated his constitutional
rights by diagnosing him with ephebophilia, which he asserts is not a
condition listed in the current DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL Disorders. As the magistrate judge explained, Welsh asserted in
his amended complaint that the inaccurate diagnosis contributed to his
continued civil commitment. Here, because Welsh does not present any facts
or arguments indicating error related to his claim of inaccurate diagnosis, he
has waived it on appeal. FED. R. APP. P. 28(a)(8)(A); Trujillo, 502 F.3d at
360; Geiger, 404 F.3d at 373 n.6; Martinez, 263 F.3d at 438.
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vm.
Next, Welsh challenges the magistrate judge’s dismissal of his claims
in Counts 2 and 4 concerning property rights. The magistrate judge explained
these claims involved the denial of hygiene items and clean clothes while he
was in isolation for one five-day period in January 2016, the denial of soap
and toothpaste during another five-day period in March 2017, and the denial
of hygiene items, stationary, his legal work, a bible, clothes, utensils, and his
desired amount of toilet paper for a two-week period in November 2017. The
magistrate judge interpreted these claims as raising arguments concerning
conditions of commitment, denial of access to courts, and denial of his right
to exercise religious freedom. This was a reasonable reading of the amended
complaint. See Hernandez, 630 F.3d at 426-27.
When analyzing these claims, the magistrate judge noted Welsh’s
concession that, during the January 2016 five-day period when he was
without hygiene items or clean clothes, he still had access to a toilet, sink, and
shower. He alleged no ill effects other than body odor and emotional distress.
This court has concluded that civilly committed persons receive the
process they are due if “the conditions and duration of confinement... bear
some reasonable relation to the purpose for which persons are committed. ”
Brown, 911 F.3d at 243 (quoting Seling, 531 U.S. at 265). The goals of Texas’s
SVP program are “long-term supervision and treatment of sexually violent
predators. ” Brown, 911 F.3d at 243 (quoting TEX. HEALTH & SAFETY CODE
Ann. § 841.001). Additionally, states have discretion in setting up civil
commitment schemes. Brown, 911 F.3d at 243. Security measures and
disciplinary rules adopted by civil commitment facilities in furtherance of the
goals of supervision and treatment do not amount to a due process violation.
See id. at 243-44. Because the deprivations Welsh alleges were temporary
and he describes no ongoing adversity, and because those deprivations flow
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from the rules and security measures implemented by the Texas Civil
Commitment Center in service of the goals of supervision and treatment, he
has not raised a viable conditions of commitment claim, and he has not shown
that the magistrate judge erred by dismissing this claim.4 See id.
The magistrate judge concluded that Welsh’s claim of denial of access
to courts failed because he had not shown that the failure to provide him with
stationary and legal materials prejudiced him in a suit. See Lewis, 518 U.S. at
351-53 & n.3; Day, 560 F. App’x at 318-19. Welsh does not dispute this but
simply insists that he had a right to property. This does not suffice to show
error with respect to the magistrate judge ’ s dismissal of this claim. See Lewis,
518 U.S. at 351-53.
The magistrate judge further concluded that Welsh’s claim
concerning a denial of religious freedom vis-a-vis denial of a bible for two
weeks failed because his allegations did not show that he was forbidden from
practicing his religion but only that he was denied certain property. We hold
only that, because Welsh has not raised this claim in his appellate brief, he
4 Welsh devotes a discrete section of Ms brief to separately dispute the magistrate
judge s rejection of Ms Count 11 claims concerning the denial of eating utensils and access
to certain hygiene items every other day for a two-week period in November 2017. The
magistrate judge explained that, during the Spears hearing, Welsh admitted that he had
access to a sink with running water and a toilet during the pertinent time and that he was
provided a toothbrush, toothpaste, and soap within one to two days of Ms transfer to a
secured management unit. Again, because the deprivations Welsh alleges were temporary
and he describes no ongoing adversity, and because those deprivations flow from the rules
and security measures implemented by the Texas Civil Commitment Center in service of
the goals of supervision and treatment, he has not raised a viable constitutional claim, and
he has not shown that the magistrate judge erred by dismissing this claim. See Brown, 911
F.3d at 243.
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has waived it on appeal. FED. R. APP. P. 28(a)(8)(A); Trujillo, 502 F.3d at
360; Geiger, 404 F.3d at 373 n.6; Martinez, 263 F.3d at 438.
EX.
Welsh also challenges the magistrate judge’s rejection of his due
process claims, raised in Counts 2,4,10, and 11 of his amended complaint, in
which he alleges that “punitive confinement conditions” violated his due
process rights.
Several of Welsh’s due process claims pertain to his placement in
isolation due to pending criminal charges arising from the January 2016
incident (Count 2) and his placement in isolation after he allegedly assaulted
another resident in January 2017, was arrested and charged with assault, and
committed several other rule violations (Counts 4 and 11).
When considering the claims in Counts 2, 4, and 11, the magistrate
judge first noted that this court had not set forth the standard to be applied
to SVPs raising procedural due process claims. The magistrate judge noted,
however, that other courts apply a standard given in Sandin v. Conner—z
prisoner’s due process rights may be infringed by a deprivation that is
“atypical and significant... in relation to the ordinary incidents” of prison
life—to due process claims raised by civilly committed SVPs. 515 U.S. 472,
484 (1995); see also Thielman v. Leean, 282 F.3d 478, 480, 482-84 (7th Cir.
2002); Beavers v. Santiago, 243 F. App’x 719, 721 (3d Cir. 2007). Because
Welsh neither contests the legal standard nor identifies caselaw that would
supply an appropriate alternative framework, we consider these claims with
reference to the law used by the magistrate judge for the purposes of this
appeal only.
Regarding Welsh’s claim in Count 2, the magistrate judge concluded
that Welsh had not shown a procedural due process violation because he
alleged only that he was denied certain property such as electronics, snacks,
‘
j:
1
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and clothes; the magistrate judge determined that being deprived of these
items did not amount to “atypical and significant” hardships and thus did
not trigger due process protections. Regarding Welsh’s claims in Counts 4
and 11, the magistrate judge similarly concluded that they failed because the
restrictions Welsh complained of were de minimis—Welsh asserted that he
was placed on “‘lockdown’” for 13 to 15 hours per day during which he was
denied electronics, was denied the right to purchase items from the
commissary, and was given limited recreation time—and were imposed to
support the goals of supervision and treatment. See Brown, 911 F.3d at 243.
The dismissal of these claims was not an abuse of discretion.
Welsh also asserted that his due process rights were infringed when
he was placed in restraints and moved following the November 2017 incident
(Count 10). Because Welsh has not discussed any facts or cited any authority
regarding this claim in his appellate brief, he has waived it on appeal. FED. R.
APP. P. 28(a)(8)(A); Trujillo, 502 F.3d at 360; Geiger, 404 F.3d at 373 n.6;
Martinez, 263 F.3d at 438.
X.
Welsh also challenges the magistrate judge’ s dismissal of his Count 3
claim concerning delayed mail, in which he argued that he was unable to tell
counsel what issues he wanted raised in his appeal from his SVP trial because
his legal mail was delayed.
Again, although this court has not yet articulated the standard that
applies to claims of interference with legal mail in the civil-commitment
context, see Allen v. Seiler, 2013 WL 357614, at *6 (N.D. Tex. Jan. 30,2013),
other circuits apply the standard used in prisoner civil rights cases. E.g.j
Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012); see also Allen v. Seiler,
535 F. App’x 423 (5th Cir. 2013) (affirming a district court’s analysis that
assumed the standard for reviewing a civilly committed person’s legal mail
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claim was the same as that for reviewing a prisoner’s legal mail claim).
Moreover, under the standard this court applies in the prisoner mail context,
one may not recover absent a showing that the defendant intentionally
delayed his mail. Richardson v. McDonnell, 841 F.2d 120,122 (5th Cir. 1988).
Assuming the same or similar standard would apply to claims of interference
with legal mail in the civil-commitment context, we hold that the magistrate
judge properly dismissed this claim, as Welsh has asserted only negligence.
XI.
Welsh challenges the magistrate judge’s dismissal of the Count 1
claims he raised under 42 U.S.C. § 1985 and § 1986. The magistrate judge
interpreted Welsh’s § 1985 claim as arising under § 1985(3), which prohibits
conspiracies to deprive a person of equal protection of the laws, provided the
conspirators were motivated by an immutable characteristic of the victim.
Welsh averred that his SVP status was an immutable characteristic that made
§ 1985(3) applicable. The magistrate judge concluded that SVPs are not a
protected group for § 1985(3) purposes because this statute “generally
addresses racial discrimination and has not been broadly construed to
encompass other identifiable groups” and dismissed the claim.
The magistrate judge also found that Welsh’s § 1986 failed. § 1986
provides for recovery against anyone “who, having knowledge that [a § 1985
conspiracy is] about to be committed, ” does nothing about it. Because Welsh
had not pleaded facts establishing a § 1985 conspiracy, the magistrate judge
concluded that Welsh could not establish a claim under § 1986.
Welsh addresses neither the magistrate judge’s reasoning nor the
cases cited in support thereof but simply asserts that he was entitled to
protection under these statutes. This does not show error in the dismissal of
this claim. See Brinktnanny 813 F.2d at 748.
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XII.
Finally, Welsh argues that the magistrate judge should have informed
him of the shortcomings in his complaint and permitted him to amend it
before it was dismissed. Before dismissing a pro se complaint, a judge
ordinarily will give the litigant the opportunity to amend his complaint to
remedy the deficiencies or otherwise allow him to develop his factual claims.
Eason v. Thaler, 14 F.3d 8,9-10 (5th Cir. 1994); see also Bazror&x v. Scott, 136
F.3d 1053,1054 (5th Cir. 1998). The primary means that have evolved for
remedying inadequacies in a prisoner’s pleadings are a Spears hearing or a
questionnaire that permits the prisoner to focus his claims. Eason, 14 F.3d at
9. The record shows that the magistrate judge both permitted Welsh to
amend his complaint and held a Spears hearing, at the end ofwhich he invited
Welsh to speak about anything that had not been covered and that he wanted
to discuss. The record thus shows that the magistrate judge gave Welsh
ample opportunity to plead his best case, hence this claim is unavailing.
We AFFIRM in large part, VACATE in part, and REMAND for
further proceedings consistent with this opinion.
22
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United States Court ofAppeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
February 09, 2021
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding:
Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 19-10825
Welsh v. Correct Care Recovery
USDC No. 5:18-CV-20
Enclosed is a copy of the court's decision. The court has entered
judgment under Fed. R. App. P. 36.
(However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
Fed. R. App. P. 39 through 41, and 5TfJ Cir. R. 35, 39, and 41 govern
costs, rehearings, and mandates. 5th Cir. R. 35 and 40 require you
to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order.
Please
read carefully the Internal Operating Procedures (lOP's) following
Fed. R. App. P. 40 and 5th Cir. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5th Cir. R. 41 provides that a motion for
a stay of mandate under Fed. R. App. P. 41 will not be granted
simply upon request. The petition must set forth good cause for
a stay or clearly demonstrate that a substantial question will be
presented to the Supreme Court.
Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases.
If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under Fed. R. App. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order.
If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari.
Additionally, you MUST confirm that
this information was given to your client, within the body of your
motion to withdraw as counsel.
Case: 19-10825
Document: 00515739022
Page: 2
Date Filed: 02/09/2021
Sincerely,
LYLE W. CAYCE, Clerk
By:
Nancy F. Dolly,Deputy Clerk
Enclosure(s)
Mr. Lonnie Kade Welsh
APPENDIX
B
PETITION FOR REHEARING ON
EN BANC DENIED
Case: 19-10825
Document: 00515778337
Page: 1
Date Filed: 03/12/2021
United States Court ofAppeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
LYLE W. CAYCE
CLERK
March 12, 2021
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 19-10825
Welsh v. Correct Care Recovery
USDC No. 5:18-CV-20
Enclosed is an order entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
By:
Casey A.Sullivan,Deputy Clerk
504-310-7642
Ms. Karen S. Mitchell
Mr. Lonnie Kade Welsh
Case: 19-10825
Document: 00515778332
Page: 1
Date Filed: 03/12/2021
®niteij States Court of Appeals
for tfje Jftftf) Circuit
No. 19-10825
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Correct Care Recovery Solutions; Chris Woods,
Individually as Director ofSecurity, Texas Civil Commitment Centerfor Correct
Care Recovery Solutions-, Amy Goldstein, Individually as Clinical
Director at Texas Civil Commitment Centerfor Correct Care Recovery
Solutions; Edward Towns, Individually as Clinical Director at Texas
Civil Commitment Centerfor Correct Care Recovery Solutions; Bill
Vanier, Individually as Captain ofSecurity at Texas Civil Commitment
Centerfor Correct Care Recovery Solutions; Et Al .,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CV-20
ON PETITION FOR REHEARING EN BANC
(Opinion 02/09/2021, 5 CiR.,
F.3d
Before Stewart, Higginson, and Wilson, Circuit Judges.
)
Case: 19-10825
Document: 00515778332
Page: 2
Date Filed: 03/12/2021
No. 19-10825
Per Curiam:
Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is DENIED. No member of the
panel nor judge in regular active service of the court having requested that
the court be polled on Rehearing En Banc (Fed. R. App. P. and 5th Cir.
R. 35), the Petition for Rehearing En Banc is DENIED.
2
Case 5:18-cv-00020-BQ Document 43 Filed 04/24/19
Page 1 of 66 PagelD 513
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
LONNIE KADE WELSH,
Institutional ID No. 27818,
Plaintiff,
v.
CORRECT CARE RECOVERY
SOLUTIONS, et al.,
Defendants.
2019 APR 24 AH 10:
DEPUTY CLERK
)
)
)
)
)
US DISTRICT Cb,., s i
RjRTHERrl DIST. OF TX
FILED
CIVIL ACTION NO. 5:18-CV-020-BQ
)
)
)
)
)
)
ORDER OF DISMISSAL
Proceeding pro se and in forma pauperis (IFP), Plaintiff Lonnie Kade Welsh filed this civil
rights action under 42 U.S.C. § 1983 on January 22, 2018. ECF No. 1. On March 26, 2018, the
United States District Court transferred this case to the undersigned United States Magistrate Judge
for further proceedings. ECF No. 13. The undersigned thereafter granted Welsh permission to
proceed in forma pauperis (IFP).1 Welsh subsequently sought, and the undersigned granted, leave
to file an Amended Complaint. See ECF Nos. 18, 19. The undersigned reviewed Welsh’s
Amended Complaint as well as authenticated records from various entities, and conducted an
evidentiary hearing in accordance with Spears v. McCotter, 766 F.2d 179, 181—82 (5th Cir. 1985)
and 28 U.S.C. §§ 1915 and 1915A. ECF Nos. 40, 41.
Welsh has consented to proceed before the undersigned magistrate judge. ECF No. 11.
After considering the allegations in Welsh’s Amended Complaint, his responses at the evidentiary
1 Although the State of Texas has civilly adjudged Welsh to be a sexually violent predator (SVP), he is not currently
civilly committed. Instead, Lamb County Jail had custody of Welsh at the time he filed this action, and he has since
been convicted of a criminal offense, resulting in his current incarceration by the T exas Department of Criminal Justice
(Tnr.n Thus Welsh is procedurally considered a “prisoner” for the purposes of this lawsuit. See 28 U.S.C. § 1915;
42 U.S.C. § 1997e. Because the majority of Welsh’s claims arose during and relate to his civil commitment, however^
the court analyzes the substance of such claims under the legal standards applicable to civilly committed persons.
1
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hearing, authenticated records provided by various entities, and applicable law, the court concludes
Welsh’s claims in this action must be dismissed in accordance with 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b).
I.
Standard of Review
A court must dismiss a complaint filed in forma pauperis by a prisoner against a
government entity or employee if the court determines that the complaint is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2) (2017); see also § 1915A(b) (applying
section to any suit by a prisoner against certain governmental entities, regardless of whether the
prisoner is proceeding in forma pauperis). A frivolous complaint lacks any arguable basis, either
in fact or in law, for the wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
complaint has no arguable basis in fact if it rests upon clearly fanciful or baseless factual
contentions, and similarly lacks an arguable basis in law if it embraces indisputably meritless legal
theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). When analyzing a
prisoner’s complaint, the court may consider reliable evidence such as the plaintiffs allegations,
responses to a questionnaire, and authenticated prison records. See Wilson v. Barrientos, 926 F.2d
480,483-84 (5th Cir. 1991); see also Berry v. Brady, 192 F.3d 504,507 (5th Cir. 1999) (explaining
that responses to a questionnaire are incorporated into the plaintiffs pleadings); Banuelos v.
McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (holding that courts may dismiss prisoners’ in forma
pauperis claims as frivolous based on “medical or other prison records if they are adequately
identified and authenticated”).
In evaluating the sufficiency of a complaint, courts accept well-pleaded factual allegations
as true, but do not credit conclusory allegations or assertions that merely restate the legal elements
2
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Page 3 of 66 PagelD 515
of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467,469 (5th Cir. 2016). And while courts
hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, such
plaintiffs must nevertheless plead factual allegations that raise the right to relief above a
speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
II.
A.
Discussion
Welsh’s Claims
In his Amended Complaint, Welsh asserts claims against the following Defendants:
(1) Correct Care Recovery Solutions (CCRS);2 (2) Bryan Thomas, as “principle agent” for CCRS;
(3) Chris Woods, Director of Security at the Texas Civil Commitment Center (TCCC); (4) Amy
Goldstein, clinical director at TCCC; (5) Edward Towns, clinical director at TCCC; (6) Jane
Salazar, Captain of Security at TCCC; (7) Bill Vanier, Captain of Security at TCCC; (8) Margarito
Gonzales, Captain of Security at TCCC; (9) Mary Leeks;3 (10) Jacob Richardson; (11) Adrian4
Flores; (12) Robbie Spencer; (13) Dustin Tijerina; (14) Maria Sanchez; (15) Kevin Tedder;
(16)Amulfo Hernandez Jr.; (17) Leslie Dimwiddie;5 (18) Jorge Juarez; (19) John/Jane Does;
(20) Dr. Russel, Urologist in Lubbock, Texas; (21) Littlefield Police Department (LPD);
(22) Mayor Eric Turpen; (23) Albert Garcia, LPD; (24) Leon Ponce; (25) LPD Detective
2 CCRS, a private company under contract with the Texas Civil Commitment Office (TCCO), operates the TCCC.
See Texas Civil Commitment Center, Correct Care Recovery Sols., http://www.correctcarers.com/tccc (last visited
Feb. 28,2019).
3 Welsh spells this Defendant’s last name as both “Leeks” and “Leaks” throughout his Amended Complaint. See, e.g.,
Am. Compl., at 2, 20. The court presumes Leeks and Leaks to be the same person but will refer to the Defendant as
“Mary Leeks.”
4 Welsh names “Andrea Flores” as a Defendant on page 3 of the Amended Complaint; however, he later names an
“Adrian Flores.” The court presumes Andrea and Adrian to be the same person because Welsh never mentions an
Andrea Flores after the initial page, and will refer to the Defendant as “Adrian Flores.”
5 Welsh names “Leslie Dimwiddie” as a Defendant on the cover page of his Amended Complaint. See Am. Compl.,
at 2. Throughout the text of the Amended Complaint, however, he refers to a “Leslie Dinwiddie.” See, e.g., id. at 3,
57. The court presumes Dimwiddie and Dinwiddie to be the same person but will refer to the Defendant as “Leslie
Dimwiddie.”
3
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Page 4 of 66 PagelD 516
Rodriguez; (26) LPD Officer Kasting; (27) LPD Chief Ross Hester; (28) 154th District Attorney’s
Office; (29) Scott Say, 154th District Attorney’s Office; (30) Lamb County Attorney’s Office;
(31) District Attorney Ricky Redman; (32) Lisa Peralta, TCCO case manager; (33) Daniel Rake,
TCCO case manager; (34) Peter Caswell, TCCO case manager; and (35) Dr. Peter Henschel,
Clinical Director of Central Psychological Services, Dallas, Texas. Am. Compl., at 1-46 (ECF
No. 20).
Welsh enumerates thirteen specific counts as well as several general miscellaneous claims:
Count 1: Welsh contends that on January 22, 2016, Captains Salazar and Vanier, as well
as “other security personnel,” used excessive force against him. Id. at 4-7. Welsh concedes,
however, that he failed to comply with the Captains’ orders and those of Clinical Director Amy
Goldstein, both before and during the alleged incident. Id. at 4-5. Welsh states that Captains
Salazar and Vanier, acting at the direction of Goldstein, “seize [d] and assaulted] the plaintiff who
was sitting in a chair.” Id. at 5. He also alleges that after Defendants moved him to the secured
management unit (SMU), “Captain Vanier while taking of[f] the shackles, used the metal jagged
edge . . . [to] grind the teeth of the cuff into the plaintiffs right ring finger.” Id. Welsh alleges
that this “caused [his] right ring finger to bleed, with the long-term effect of a scar.” Id. Welsh
further asserts that Defendants used force against him in “retaliation of using his right to speech.”
Id. at 6.
Count 2: Welsh alleges that after the January 22 incident, CCRS “in collaboration with
the City of Littlefield Police Department . . . through it’s [sic] agent Leon Ponce and the Lamb
County Attorney’s office through it’s [sic] agent Rickie Redman,” held him in punitive isolation
via a “warrantless arrest” until February 10, 2016, when he appeared before a magistrate judge.
6 Page citations to Welsh’s pleadings refer to the electronic page number assigned by the court’s electronic filing
system.
4
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Id. at 12. He further contends that “[f]rom February 10, 2016 on or before March 22, 2016 the
City of Littlefield Police Department . . . and the Lamb County Attorney’s office continued the
unreasonable seizure in punitive isolation at the Lamb County Jail.” Id. Finally, Welsh asserts
that between January 22 and January 27, Property Officer Mary Leeks denied him hygiene items
and clothing. Id.
Count 3: Welsh alleges that CCRS and Officer Leeks delayed providing him with legal
mail, which caused him to miss the deadline for filing an appeal in his state habeas case. Id. at 19.
Specifically, he states that in February 2016, his state court-appointed lawyer sent a letter
addressed to Welsh at the TCCC, which he did not receive because he was in the Lamb County
Jail. Id. The letter sought “plaintiffs input on any unnamed issues on appeal.” Id. Welsh claims
that he returned to TCCC on March 22, but did not receive his legal mail until April 7. Id.
According to Welsh, the deadline to submit briefing related to his state-court appeal was April 11,
2016, resulting in several issues not being briefed because he could not timely communicate with
his attorney. Id.
Count 4: Welsh asserts that CCRS “behavior management” placed him in “punitive
isolation” between February 7 and November 27, 2017, without due process. Id. at 23. During
his time in isolation, Welsh alleges that Daniel Rake denied him a visit from his family during the
July 4 holiday. Id. He further contends that Defendants restricted his property, recreation and
commissary privileges, and ability to order through vendors. Id. Welsh also asserts that Officer
Leeks refused to give him his soap and toothpaste for five days, beginning March 5, 2017. Id. at
24. Welsh claims that he “lost twenty-five pounds of flesh” during his time in isolation because
he could not make commissary purchases. Id. at 23.
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Count 5: Welsh alleges that between February 3 and November 27, 2017, Clinical
Directors Amy Goldstein and Edward Towns denied him therapy and sex offender counseling. Id.
at 30. Welsh contends that Towns authored a “bogus” biennial report to the 435th Judicial District
Montgomery County court, which falsely stated that Welsh had refused treatment. Id. Welsh
claims that as a result of being denied treatment, he “has lost two hundred ninety-three days of
confinement plus two hundred ninety-three days he must make-up for the missed counseling.” Id.
at 31. He also asserts that Dr. Peter Henschel violated his constitutional rights by diagnosing him
“with a bogus mental disease not professionally recognized ....” Id.
Count 6: Welsh contends that on March 21,2017, Security Officer Adrian Flores smashed
Welsh’s left hand in a “metal trap door located by opening on a locked confinement cell,” which
caused severe pain, swelling, and bruising. Id. at 38. Welsh also claims that Flores, Margarito
Gonzales, Maria Sanchez, Jorge Juarez, and John/Jane Does violated his “Fourteenth Amendment
right to safe conditions, protection, and ordinary care.” Id. at 38-39. Finally, Welsh alleges Flores,
Gonzales, and CCRS placed him in isolation between March 21 and April 1, 2017, in violation of
his Fourth and Fourteenth Amendment rights. Id. at 39.
Count 7: Welsh asserts that on March 22, 2017, Security Officer Jacob Richardson
smashed his hand in the food slot after Welsh threw water on Officer Amulfo Hernandez Jr. Id.
at 44. Welsh states that Captain Jane Salazar ordered Richardson to use force. Id. Welsh claims
that as a result of the incident, he suffered severe pain, swelling, bleeding, and a scar on his left
hand. Id. at 45. He further contends that later the same day, LPD Detective Rodriguez came to
the TCCC to register sex offenders. Welsh claims he reported the incident to Rodriguez, but
Rodriguez did nothing to help him, in violation of Welsh’s constitutional rights. Id. at 45^16.
6
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Count 8: Welsh alleges that the City of Littlefield has a “practice and custom” of violating
his Fourteenth Amendment rights “by refusing to press or investigate criminal charges against all
named actors on plaintiffs affidavit...Id. at 50-51.
Count 9: Welsh asserts that on April 14, 2017, Security Officers Robbie Spencer and
Mosely transported him to University Medical Center in Lubbock, Texas, for an intrusive medical
examination of inserting a camera into the urinary track [sic] through the penis.” Id. at 52. Welsh
contends that he asked Spencer and Mosely to avert their eyes during the exam, but they refused.
Id. Welsh states that Spencer wrote a false report concerning Welsh’s behavior during the exam,
alleging Welsh was unruly, which the state court considered during his biennial review and
resulted in “two more years of civil commitment.” Id. at 52-53.
Count 10: Welsh avers that on November 13, 2017, Officers Dustin Tijerina, Leslie
Dimwiddie, Amulfo Hernandez, Kevin Tedder, and Margarito Gonzales, as well as Security
Director Chris Woods, used force excessive to the need. Id. at 56. Specifically, Welsh claims that
after he refused to accept housing, Director Woods ordered Defendants to use force on Welsh. Id.
Welsh asserts that after the officers shackled his anns and legs, they moved him to a different cell.
Id. When the officers attempted to remove the handcuffs, Welsh states that he “moved his hands,”
which Welsh contends allegedly caused Officer Hernandez to twist Welsh’s arm in an attempt to
break it. Id. at 57. Welsh further claims that Officer Dimwiddie repeatedly slammed his head into
the floor, causing swelling and bruising. Id.
Count 11: Welsh alleges that LPD Chief of Police Ross Hester investigated the alleged
November 13,2017, incident and charged Welsh “with fabricating physical evidence by assaulting
his own face and making a false report to a Peace Officer.” Id. at 65-69. Welsh claims that
Security Director Woods and Chief Hester conspired to bring false charges against him. Id. Welsh
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also asserts that Woods put him in isolation without due process between November 13 and 27.
Id. During that time, Welsh claims Woods did not provide him with any hygiene items, stationary,
legal work, clothes, or his Bible. Id. Welsh contends that Woods denied him utensils and a cup,
forcing him to eat with dirty hands because he “could not remove all fecal matter from his hands”
due to a lack of hygiene or sanitation. Id.
Count 12: Welsh contends that CCRS has a policy, implemented by Director Woods, of
“assaultive and oppressive confinement culture.” Id. at 74—75.
Count 13: Welsh asserts that the City of Littlefield, through its “agent” Chief of Police
Albert Garcia, “has created a culture and/or failed to train the Littlefield police officers . . .”
resulting in constitutional harm. Id. at 79.
Miscellaneous Claims: Welsh also asserts general unspecified claims under 42 U.S.C.
§§ 1985 and 1986 (id. at 81-84), as well as various state law claims. See id. at 4-80.
Welsh seeks monetary damages with respect to each count. For the reasons below, Welsh
has failed to state cognizable constitutional claims.7
B.
Claims against LPD, the Lamb County Attorney’s Office, the 154th District
Attorney’s Office, and the Individual Prosecutors
To the extent Welsh attempts to assert claims against the LPD, Lamb County Attorney’s
Office, and 154th District Attorney’s Office, they must be dismissed.
7 Throughout his Amended Complaint, Welsh makes sweeping allegations, accusing multiple TCCC officials and
other authorities of violating state laws and his constitutional rights, as well as committing various other misdeeds.
See. e.g., Am. Compl., at 5 (alleging Defendants used force as punishment), 13-14 (asserting CCRS’s policy violated
his rights, but failing to name any specific individuals), 1-89 (alleging various state law tort claims, including
intentional infliction of emotion distress, without supporting information). Although Welsh’s Amended Complaint
spans almost ninety-pages, it is notably devoid of facts supporting his conclusory allegations. The court allowed
Welsh to amend his complaint (ECF No. 19), and also held a Spears hearing in an attempt to flesh out his claims, but
many still fall short of meeting Rule 8’s pleading standards. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain
statement of the claim showing that the pleader is entitled to relief’); see also Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)) (“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”). Nevertheless, the court evaluates the
substance of Welsh’s claims as well.
8
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With respect to his claims against LPD, the Lamb County Attorney’s Office, and the 154th
District Attorney’s Office, “[fjederal courts in Texas have uniformly held that entities without a
separate jural existence are not subject to suit.” Torti v. Hughes, No. 3:07-CV-1476-M, 2007 WL
4403983, at *2 (N.D. Tex. Dec. 17, 2007) (citing cases for support). Welsh has pleaded no facts
demonstrating that the LPD, Lamb County Attorney’s Office, and 154th District Attorney’s Office
are separate jural entities subject to suit. Because LPD, the Lamb County Attorney’s Office, and
the 154th District Attorney’s Office are not entities with the capacity to be sued, Welsh’s claims
against such Defendants must be dismissed. See, e.g., Darby v. Pasadena Police Dep 7, 939 F.2d
311, 313 (5th Cir. 1991) (quoting Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979))
(explaining that a political subdivision such as a police department only has the capacity to be sued
if it “enjoy[s] a separate legal existence”); Puckett v. Walmart Store #5823, No. 3:15-cv-2029-DBN, 2017 WL 6612944, at *3 (N.D. Tex. Nov. 6, 2017) (recommending dismissal of pro se
detainee’s claims because, among other reasons, he failed to allege a claim against a jural entity);
Graves v. Stricklin, No. 3-03-CV-2219-L, 2003 WL 22718443, at *2 (N.D. Tex. Nov. 17, 2003)
(citing Short v. Brauchle, No. 3-03-CV-0205-D, 2003 WL 21448773, at *2 (N.D. Tex. Mar. 25,
2003)) (holding that “the Dallas County District Attorney’s Office is not a legal entity subject to
suit”).
In addition, any claim Welsh attempts to bring against county or city prosecutors Rickie
Redman and Scott Say is also without merit because they are immune from suit. See Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976) (recognizing that prosecutors enjoy absolute immunity
in pursuing criminal prosecutions); Esteves v. Brock, 106 F.3d 674, 677 (5th Cir. 1997) (quoting
Imbler, 424 U.S. at 430-31) (explaining that “[a] prosecutor enjoys absolute immunity from
personal liability for damages under section 1983 for actions ‘initiating a prosecution and . . .
9
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presenting the State’s case’ and those ‘intimately associated with the judicial phase of the criminal
process’”). Here, Welsh has not pleaded facts even attempting to circumvent such immunity. See,
e.g., Am. Compl., at 13 (imputing placement in the TCCC’s SMU to Redman and Say because
they criminally charged Welsh). Accordingly, his claims against Redman and Say must be
dismissed.
C.
Counts 1 and 2
Welsh alleges that on January 22,2016, acting in part at Clinical Director Amy Goldstein’s
direction, Captains Salazar and Vanier and “other security personnel” used excessive force against
him. Id. at 4—7.
Specifically, Welsh avers that Goldstein, Salazar, and Vanier used force against
him in retaliation for exercising his First Amendment right to speech—namely, to refuse housing
and officers’ orders. Id. at 4-6. As a result of the incident, Welsh contends that his right finger
bled and is scarred. Id. at 5. Welsh further claims that Goldstein, Salazar, Vanier, LPD Officer
Leon Ponce and Lamb County Assistant District Attorney Rickie Redman denied him due process
when they placed him in “punitive isolation” (i.e., the SMU) from January 22 to February 10,
2016. Id. at 5-6, 13; see also id. at 12 (attributing placement in SMU to CCRS policy). Welsh
believes Defendants cannot “punish” him (through placement in the SMU) because he is a civilly
committed person, not a prisoner. Id. at 5-6. 12.
In addition, Welsh asserts that Ponce failed to investigate the alleged use of force. Id. at
13. Finally, Welsh alleges that from February 10 to March 22, 2016, LPD, Officer Ponce, the
Lamb County Attorney’s Office, and Assistant District Attorney Redman falsely arrested and
detained him at the Lamb County Jail “by ignoring the fact that the plaintiff was assaulted . . . .”
Id.
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1. Heck v. Humphrey bars Welsh’s excessive force, false arrest, and detention claims.
In Heck v. Humphrey, the United States Supreme Court held that a plaintiff seeking to
recover damages for harm “caused by actions whose unlawfulness would render a conviction or
sentence invalid” must first prove that “the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
512 U.S. 477, 486-87 (1994). Where a favorable judgment in the civil rights action would
“necessarily imply the invalidity of [a prisoner’s] conviction or sentence” in his criminal case, the
civil claim is barred unless the criminal conviction has been reversed or otherwise declared invalid.
Id. “This requirement or limitation has become known as the ‘favorable termination rule.’”
Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006) (quoting Sappington v. Bartee, 195 F.3d 234,
235 (5th Cir. 1999)). The Heck inquiry is “analytical and fact-intensive,” and requires courts to
“focus on whether success on the [constitutional] claim requires negation of an element of the
criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal
conviction.” Id.
Here, Welsh concedes that he was convicted of a criminal offense in connection with the
alleged use of force incident on January 22, 2016. The authenticated records specifically show
that he pleaded guilty to assault causing bodily injury for biting Captain Salazar during the January
22 occurrence. A favorable finding in this § 1983 action—that Captains Salazar and Vanier, as
well as Amy Goldstein and “other [TCCC] security personnel” used excessive force against him
on January 22—would necessarily imply the invalidity of Welsh’s underlying criminal conviction.
Welsh’s excessive force claim is therefore barred by Heck because his state court convictions have
not been reversed, invalidated, or expunged.
See, e.g., Smith v. Davenport, Civil Action
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No. 3:16CV85-GHD-DAS, 2017 WL 1750827, at *3^1 (N.D. Miss. May 3, 2017) (finding
plaintiffs excessive force claim Heck-barred where plaintiff had pleaded guilty to assault of an
officer and the events giving rise to plaintiffs conviction were the same as those giving rise to his
excessive force claim); Fabre v. Yoli, Civil Action No. 14-2220,2015 WL 5773979, at *2-3 (E.D.
La. Sept. 30, 2015) (dismissing plaintiffs excessive force and failure to protect claims as Heck
(
barred when they arose out of incident for which plaintiff was convicted of battering and resisting
an officer). Similarly, a finding that Ponce and Redman falsely arrested and detained him would
undermine the validity of Welsh’s criminal conviction. See, e.g., Perry v. Holmes, 152 F. App’x
404, 405-06 (5th Cir. 2005) (holding that plaintiffs false imprisonment claim “directly
implicate[d] the validity of his conviction and confinement” and was therefore Heck-barred); Wells
v. Bonner, 45 F.3d 90, 95 (5th Cir. 1999) (holding that Heck barred recovery for plaintiffs false
arrest claim where plaintiffs “proof to establish his false arrest claim, i.e., that there was no
probable cause to arrest . . . would demonstrate the invalidity of [plaintiffs] conviction . . .”);
Parker v. Moreno, No. 3:01CV1283-D, 2002 WL 1758181, at *4 (N.D. Tex. July 26, 2002)
(recommending dismissal of plaintiffs claims for police brutality and excessive force, where a
favorable ruling on such claims would “necessarily implicate the validity of a conviction for
assault on a public servant”). Accordingly, the court must dismiss Welsh’s excessive force, false
arrest, and detention claims in Count 1 until Welsh has satisfied the conditions of Heck.
2. Welsh has not demonstrated Defendants unconstitutionally retaliated against him.
Welsh contends that Salazar, Vanier, and Goldstein “assaulted [him] in retaliation of using
his right to speech.” Am. Compl., at 6. To the extent Welsh’s retaliation claim must be analyzed
separately from his excessive force claim, and is not Heck-barred, he has failed to plead any facts
demonstrating that Defendants retaliated against him.
12
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Civilly committed persons claiming retaliation must show: “(1) a specific constitutional
right; (2) the defendant’s intent to retaliate based on the exercise of that right; (3) a retaliatory
adverse act; and (4) causation.” Bohannan v. Doe, 527 F. App’x 283, 299 (5th Cir. 2013) (citing
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (per curiam)). To state a retaliation
claim, a plaintiff “must allege more than his personal belief that he is the victim of retaliation,”
and conclusory “allegations of retaliation will not be enough.” Jones, 188 F.3d at 325. The
plaintiff “must produce direct evidence of motivation or, the more probable scenario, allege a
chronology of events from which retaliation may plausibly be inferred.” Id. (internal quotation
marks omitted) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)). Failure to “point
to a specific constitutional right that has been violated” defeats the retaliation claim. Id.
Here, Welsh fails to allege facts supporting the elements of a retaliation claim. First,
although Welsh claims that he engaged in constitutionally protected speech, his pleadings and
authenticated records show otherwise. Welsh admits that he refused to comply with officers’
orders to move to the SMU and resisted subsequent efforts to physically move him by “stiff[en]ing
his body and holding on to various objects” in “civil disobedience . . . and to protect the
fundamental idea of liberty and speech.” Am. Compl., at 4-5. The authenticated video footage of
the January 22 incident likewise confirms that Welsh refused to comply with officers’ orders. This
is not the type of constitutionally protected speech contemplated by the First Amendment. See, e.g., Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir. 2004) (citing Geoff v.
Dailey, 991 F.2d 1437, 1439 (8th Cir. 1993)) (explaining that prisoners retain First Amendment
rights as long as they are not inconsistent with institutional objectives, but noting that officials
“may legitimately punish inmates who verbally confront institutional authority without running
afoul of the First Amendment”); Larson v. Jesson, Civ. No. 11-2247 (PAM/LIB), 2018 WL
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3352926, at *5 (D. Minn. July 8, 2018) (providing that even though civilly committed plaintiff
was not a prisoner, “he is detained in a facility that has legitimate objectives, including the safety
of staff and other detainees, and treatment of the individuals detained,” and passively resisting or
verbally abusing officers threatens legitimate institutional objectives “and is therefore not
protected by the First Amendment”). Welsh has therefore failed to establish the first element of a
retaliation claim—that he exercised a constitutional right. Freeman, 369 F.3d at 864 (“If the
inmate is unable to point to a specific constitutional right that has been violated, the [retaliation]
claim will fail.”).
Moreover, Welsh has not demonstrated that Salazar, Vanier, and Goldstein intended to
retaliate against him for engaging in protected speech. And his allegations lack sufficient facts for
the court to conclude that Defendants would not have used force against him “but for” his alleged
protected speech. Instead, the facts pleaded by Welsh show that Defendants physically moved
him to the SMU after Welsh repeatedly disobeyed orders and threatened institutional security. See
Favors v. Hoover, No. 13-CV-428 (JRT/LIB), 2014 WL 4954682, at *17 (D. Minn. May 13, 2014)
(recommending dismissal of civilly committed SVP’s retaliation claims where he failed to
sufficiently plead facts demonstrating a causal link between plaintiffs exercise of a
constitutionally protected right and the alleged adverse act). Accordingly, Welsh’s retaliation
claim against Salazar, Vanier, and Goldstein is without merit and must be dismissed.
3. Welsh has failed to plead facts demonstrating Defendants violated his due process
rights.
Welsh asserts that between January 22 and February 10, 2016, Goldstein, Vanier and
Salazar placed him “in punitive isolation for non-threatening, non-fighting words.” Am. Compl.,
14
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at 6, 12. Welsh alleges that Defendants placed him in the SMU8 pursuant to a CCRS policy,9 “in
collaboration with the City of Littlefield Police Department... through it’s [sic] agent Leon Ponce
and the Lamb County Attorney’s office through it’s [sic] agent Rickie Redman.” Id. at 12. Welsh
classifies his placement in SMU as a “warrantless arrest... based on accusation of assault”—i.e.,
the January 22 use of force incident where Welsh was ultimately convicted of biting Captain
Salazar. Id. In other words, Welsh contends that officials placed him in the SMU because he was
facing criminal charges. Welsh argues that his placement in the SMU violated his right “to due
process of liberty [because he is an] adjudicated civil detainee .. . .” Id. at 13.
In his pleadings, Welsh does not clearly state whether he is asserting a procedural or
substantive due process claim. Liberally construing Welsh’s Amended Complaint, the court
examines both.
a. Welsh has not adequately demonstrated that Defendants violated his procedural due
process rights.
The Fifth Circuit has not expressly considered the procedural due process standard
applicable to SVPs such as Welsh. Other courts, however, have found that, based on the Supreme
Court’s holding in Sandin v. Conner, 515 U.S. 472 (1995), which addresses the due process rights
of prisoners, the deprivation must be “atypical and significant,” in relation to the “ordinary
incidents” of an SVP’s commitment, to trigger federal procedural due process protection.
Thielman v. Leean, 282 F.3d 478, 482-84 (7th Cir. 2002) (explaining that civilly committed SVP
“must identify a right to be free from restraint that imposes atypical and significant hardship in
8 Included in the authenticated records is a copy of CCRS’s “Policy and Procedure Manual” for the TCCC. The
manual notes that SMU “is a temporary housing assignment for residents who pose an imminent risk to others, have
compromised the safety and security of the facility, or continue to violate facility rules while on wing restriction
status.”
9 To the extent Welsh challenges an alleged CCRS policy, the court addresses his claim in Section II.F. below.
15
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relation to the ordinary incidents of his confinement” to state a procedural due process claim); see
also Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (quoting Martin v. Scott, 156 F.3d 578,
580 (5th Cir. 1998)) (noting that administrative segregation is “an incident to the ordinary life of
a prisoner,” and therefore “simply does not constitute a deprivation of a constitutionally cognizable
liberty interest”). Stated differently, absent an extreme deprivation of liberty, “the Constitution
does not require that a [civilly committed person] be afforded any process at all prior to
deprivations beyond that incident to normal [commitment] life.” Deavers v. Santiago, 243 F.
App’x 719, 721 (3d Cir. 2007) (emphasis in original); see Creveling v. Johnson, Civil Action No.
11-667 (SDW), 2011 WL 3444092, at *7 (D. N.J. Aug. 4, 2011) (citing Deavers, 243 F. App’x
721).
Initially, the court notes that Welsh has not pleaded any facts demonstrating that Officer
Ponce, apparently employed by LPD, and Rickie Redman, an Assistant District Attorney in Lamb
County, had any personal involvement in Welsh’s placement in the SMU. See Am. Compl., at
12-14. In fact, Welsh specifically claims that CCRS’s policy—not the individual actions of Ponce
or Redman—resulted in his placement in the SMU. Id. “Personal involvement is an essential
element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(citing Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976)). Welsh has pleaded no facts showing
Ponce or Redman personally placed him in the TCCC’s SMU in violation of his due process rights.
For this reason alone, the court must dismiss Welsh’s claim against those Defendants.11 See, e.g.,
Semler v. Ludeman, Civil No. 09-0732 ADM/SRN, 2010 WL 145275, at *1 (D. Minn. Jan. 8,
2010) (overruling SVP’s objection to magistrate judge’s recommendation that SYP’s claims be
11 As discussed in Section II.B., Redman is immune from suit for actions taken in her capacity as a prosecutor. Welsh’s
claim against Redman also fails for this reason.
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dismissed in part because he did not allege personal involvement, where SVP “fail[ed] to explain
how the fact that officials from two agencies discussed certain policies show[ed] that Defendants
were personally, or directly, involved in any constitutional wrong that [SVP] seeks to vindicate”).
But even considering the substance of Welsh’s claim, he has failed to plead facts
demonstrating a procedural due process violation. The conditions he alleges Defendants subjected
him to in the SMU—that Property Officer Mary Leeks denied him basic hygiene items12 for several
days, and officials confiscated certain property, including various snack items, electronics
(including television, Play Station), books, and some clothing (winter cap, pajama pants, pants,
shirts, etc.)—do not amount to extreme deprivations. See Am. Compl., at 12. Such claims, e.g.,
denial of the ability to store commissary items and possess a television and Play Station in his
room, do not impose atypical and significant hardships in relation to the ordinary incidents of his
commitment. See Thielman, 282 F.3d at 484; see also Brown v. Taylor, 911 F.3d 235, 243 (5th
Cir. 2018) (explaining that in the context of a substantive due process claim, “restrictive conditions
alone do not state a due process claim”). In sum, the court cannot conclude, based on the facts
alleged, that Welsh’s placement in SMU without certain items of property amounted to an extreme
deprivation triggering procedural due process protection. See, e.g.,Deavers, 243 F. App’x at 720
21 (affirming dismissal of SVP’s claim that placement in the “Restricted Activities Program”—
which resulted in restricted movement in facility, meeting with a specialist, and additional therapy
assignments—without opportunity to challenge such placement violated his due process rights
where SVP did not plead facts showing he suffered extreme deprivation of liberty); Creveling,
2011 WL 3444092, at *7-8 (dismissing SVP’s claim that placement in behavioral modification
To the extent Welsh's allegation that Officer
unconstitutional conditions of confinement, the court separately addresses it below.
17
-to-a-e-laim-for-
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program (more restrictive than general housing) without soap for a period of time, with limited
property access, recreation only once per day, and no opportunity to collect pay violated his due
process rights, because such deprivations were not extreme). The court must therefore dismiss
Welsh’s claim.13
b.
Welsh has not adequately demonstrated that Defendants violated his substantive
due process rights.
To the extent Welsh challenges his placement in the SMU based on a violation of his
substantive due process rights, he similarly fails to plead facts setting forth a viable claim. As a
civilly committed person, Welsh is entitled to “more considerate treatment and conditions of
confinement” than a prison inmate. Youngberg v. Romeo, 457 U.S. 307, 322 (1982). Because
Welsh “has been civilly committed to state custody as a [sexually violent predator],” however,
“his liberty interests are considerably less than those held by members of free society.” SentyHaugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (citing Wilkinson v. Austin, 545 U.S. 209,
224-26 (2005) and Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see Kansas v. Hendricks, 521
U.S. 346, 368 n.4 (1997) (stating that officials “enjoy wide latitude in developing treatment
regimens [for SVPs]”); Brown, 911 F.3d at 243 (citations omitted) (noting that “the
Constitution ... affords a state wide latitude in crafting a civil commitment scheme” because “the
state legislatures not only are equipped, but also possess the democratic mandate, to make difficult
policy choices regarding the supervision and treatment of sexually violent predators”). Ultimately,
13 Even if Welsh possesses a cognizable liberty interest in not being wrongfully placed in the SMU as a result of the
January 22, 2016, incident, TCCC officials afforded Welsh adequate due process. The authenticated records show
that TCCC officials held a behavior management hearing on February 8, 2016, where Welsh was charged with, and
found guilty of, disobeying a direct order and making spoken, written, or gestured threats. In an effort to correct
Welsh’s behavior, officials placed Welsh on wing restriction (SMU) for thirty days. Officials presented Welsh with
written notice of the violation and hearing (which he refused to sign), and Welsh was present at the hearing, given the
opportunity to present his version, and signed a form indicating he was aware of the imposed restriction. “The
fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful
manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). According to the authenticated records, TCCC officials
provided Welsh with such an opportunity.
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“[d]ue process requires only that ‘the conditions and duration of confinement . . . bear some
reasonable relation to the purpose for which persons are committed.’” Brown, 911 F.3d at 243
(quoting Seling v. Young, 531 U.S. 250, 265 (2001)*).
As the Fifth Circuit observed in Brown v. Taylor, Texas maintains “twin goals of ‘long
term supervision and treatment of sexually violent predators.’” Id. (quoting Tex. Health & Safety
Code Ann. § 841.001 (West 2017)). Welsh has not sufficiently pleaded facts demonstrating that
his placement in the SMU—after he disobeyed orders and bit Captain Salazar—lacked a
reasonable relation to these goals. Welsh argues that Defendants subjected him to conditions that
were harsher than he experienced in prison. See Am. Compl., at 13. Specifically, he complains
that he was: (1) not permitted to possess certain property; (2) denied certain privileges that TCCC
residents not housed in the SMU possessed; and (3) generally restricted to the SMU for longer
than he would have been in prison. See id. at 12-14. This claim fails for two reasons. As set forth
in footnote 13 supra, these conditions reasonably bear some relation to the purpose for which
Welsh is committed. Brown, 911 F.3d at 243 (quoting Seling, 531 U.S. at 265). Moreover, the
denial of certain privileges—ability to possess his commissary items and other property—amount
to de minimis restrictions, of which “the Constitution is not concerned.” See Senty-Haugen, 462
F.3d at 886 n.7 (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.20 (1979)) (explaining that SVP’s
contention officials deprived him of access to the canteen, outside vendors, and computer
privileges amounted to de minimis restrictions of his liberty). Welsh violated TCCC rules—TCCC
must maintain accountability of the residents and order at the facility by imposing restrictions for
rule violations and other behavioral issues. See id. The court cannot conclude Welsh stated a
substantive due process claim based on his placement in the SMU and the imposition of certain
minimal restrictions.
19
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4, Welsh has not pleaded facts demonstrating that Officer Leeks violated his
constitutional rights in regard to conditions of confinement by failing to provide
hygiene items.
Welsh asserts that between January 22 and 27, 2016, while housed in the SMU, Officer
Leeks denied him hygiene items and clean clothes. Am. Compl., at 12. At the evidentiary hearing,
Welsh contended that Leeks did not provide him with soap, shampoo, and toothpaste; however,
Welsh acknowledged that he had access to a toilet, sink, and shower. He further conceded that he
was able to rinse his mouth out and take showers during that time.
As discussed above, although Welsh is entitled to more considerate treatment than a
prisoner, officials nevertheless possess broad discretion in running a commitment facility. See
Youngberg, 457 U.S. at 322; Brown, 911 F.3d at 243. Only where an official’s decision “is such
a substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on such a judgment,”
may the official may be liable for a constitutional deprivation based on conditions of his
commitment. Youngberg, 457 U.S. at 323.14
14 The Fifth Circuit has not determined which legal standard applies concerning an SVP’s challenge to the conditions
of his commitment, i.e., the Eighth Amendment or the Youngberg standard. Other courts, however, have used the
Youngberg standard. See, e.g., West v. Schwebke, 333 F.3d 745, 748-49 (7th Cir. 2003) (applying the Youngberg
standard to civil detainees’ claims that defendants held them in “therapeutic seclusion” in violation of their
constitutional rights); Hargett v. Adams, No. 02 C 1456, 2005 WL 399300, at *13 (N.D. Ill. Jan. 14, 2005) (reviewing
involuntarily committed person’s § 1983 conditions of confinement claim under Youngberg); see also Turay v. Selling,
108 F. Supp. 2d 1148, 1151 (W.D. Wa. 2000) (administering Youngberg to SVP’s claim that defendants did not
provide adequate mental health treatment). Moreover, in Perniciaro v. Lea, an involuntarily detained (but not yet
committed) plaintiff alleged that, among other claims, defendants “failed to maintain reasonably safe conditions of
confinement.” 901 F.3d 241, 250 (5th Cir. 2018). Plaintiff argued the court should implement Youngberg's
professional judgment standard, while defendants sought utilization of the Eighth Amendment’s deliberate
indifference standard, which generally applies to pre-trial detainees. The Fifth Circuit held, without resolving the
ultimate question, that even assuming Youngberg provided the correct benchmark, plaintiff had failed to establish
defendants’ conduct was unreasonable. Id. at 255. In so holding, the Fifth Circuit noted that the Youngberg standard
is “a less deferential, higher standard for state officials than is deliberate indifference.” Id. at 256 n.14. As in
Perniciaro, this court finds that even if the Youngberg standard applies, Welsh has not satisfied its lower bar for
recovery.
20
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Welsh has not asserted any facts showing that between January 22 and 27, his living
conditions constituted a “substantial departure from accepted professional judgment.” See id.
Even accepting Welsh’s allegation that Officer Leeks failed to provide him with soap, shampoo,
toothpaste, and a change of clothing, Welsh has not pleaded any facts demonstrating how such
alleged denials harmed him. Welsh generally claims that without soap, a “noxious body odor
[emanated] from plaintiff.” Am. Compl., at 15. But at the evidentiary hearing Welsh conceded
that he had access to running water, which he used to shower and rinse his mouth.
In sum, Welsh has not pleaded facts sufficient to state a constitutional violation related to
his conditions of confinement. See, e.g., Creveling, 2011 WL 3444092, at *7—8 (dismissing SVP’s
claim that defendants denied him “soap for a period of time” where SVP had access to a toilet and
sink and failed to allege “an extreme deprivation” of his constitutional rights). Accordingly, the
court must dismiss his claims against Officer Leeks based on the alleged January 2016 incident.
5.
Welsh’s allegation that Officer Ponce failed to investigate a crime committed
against him does not state a viable constitutional claim.
Welsh contends that LPD Officer Ponce “ignor[ed] the fact that the plaintiff was
assaulted.” Am. Compl., at 13. Ponce’s alleged failure to investigate the January 22 incident,
however, “did not infringe any legally recognized right belonging to [Welsh] . f. .” Autrey v.
Mississippi, 66 F. App’x 523, 523 (5th Cir. 2003); see Robinson v. Fed. Bureau ofInvestigation,
185 F. App’x 347, 348 (5th Cir. 2006) (“The alleged failure to investigate complaints and to take
action in response to them does not provide a basis for a civil rights suit.”). Accordingly, the court
must dismiss Welsh’s claim. See, e.g., Ralston v. Kasper, Civil Action No. 9:18cv83, 2018 WL
7152549, at *2 (E.D. Tex. Aug. 15, 2018) (recommending dismissal of plaintiffs claim that
defendants “failed to respond to his complaints, failed to investigate his allegations, and failed to
21
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pursue criminal charges against those who took improper actions” because plaintiff failed to allege
a violation of a constitutional right).
D.
Count 3
Welsh alleges that in February 2016, while detained at the Lamb County Jail, the attorney
representing him in a state appeal of his civil commitment mailed a letter to him at the TCCC.
Am. Compl., at 19. The letter, Welsh asserts, “specifically outlined the appeal and asked for
plaintiff’s input on any unnamed issues on appeal,” and also informed Welsh of an April 11,2016,
deadline for filing the appellate brief. Id. Welsh acknowledged at the evidentiary hearing that he
did not update his address with his attorney, despite knowing his case was on appeal.
Welsh contends that he returned to the TCCC on March 22, but Officer Leeks did not
provide him with his attorney’s letter until April 7,2016. Id. Because he was unaware of the April
11 deadline until then, Welsh claims this delay denied him the ability to include “several
unaccounted-for issues plaintiff feels [were] imperative” to his appeal. Id. At the evidentiary
hearing, Welsh specified that had he timely known of the deadline, he would have asked his
attorney to raise the following issues: ineffective assistance of civil commitment trial counsel;
legal and factual sufficiency of the evidence; res judicata; collateral estoppel; constitutionality of
civil commitment;15 and improper jury instructions. Welsh avers that these omissions prevent him
from filing a 28 U.S.C. § 2254 habeas corpus action in federal district court because the state
appellate court never considered the issues he would have raised. Id.
The Fifth Circuit has not considered the applicable standard concerning legal mail in the
civil commitment setting. See Allen v. Seiler, Civil Action No. 4:12-CV—414-Y, 2013 WL
15 Welsh’s attorney briefed, and the court of appeals subsequently addressed, a challenge to the constitutionality of
the civil commitment statute. See In re Commitment ofLonnie Kade Welsh, No. 09-15-00498-CV, 2016 WL 4483165,
at *1-2 (Tex. App.—Beaumont Aug. 25, 2016, pet. denied) (mem. op.).
22
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357614, at *6 (N.D. Tex. Jan. 30, 2013) (noting that “the Fifth Circuit has [not] set forth a standard
to analyze the restriction or censorship of mail in the civil-commitment context”). Other circuits,
however, have applied the same legal standard as that used in prisoner civil rights cases, and this
court will do the same. See, e.g., Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2nd Cir. 2012) (adopting
formula used in analyzing prisoner mail claims in the civil commitment context); Allen, 2013 WL
357614, at *6 (assuming analysis for reviewing a civilly committed person’s legal mail claim is
the same as for prisoners).
To establish a constitutional violation based on obstructing mail, a plaintiff must show that
the defendant intentionally delayed or interfered with his legal mail and that such interference
caused the plaintiff actual injury or harm.16 See Lewis v. Casey, 518 U.S. 343, 349-51 (1996); see
also Eubanks v. Mullen, No. 94-10103, 1994 WL 724986, at *5 (5th Cir. Dec. 14, 1994) (citing
Richardson v. McDonnell, 841 F.2d 120,122 (5th Cir. 1988)).
Welsh does not assert that Officer Leeks intentionally delayed providing his mail—to the
contrary, his allegations expressly assert a claim for negligence. See Am. Compl., at 19 (alleging
that CCRS “had no policy in place to insure the timely delivery of legal mail” and “failed to train
Mary Leeks properly”), 20 (“C.C.R.S. and Mary Leaks did violate the Common Law Tort of
negligence as these named actors failed to exercise a degree of care, skill, and competence that a
reasonably competent professional would exercise under similar circumstance.”). Moreover,
Welsh conceded at the evidentiary hearing that he did not attempt to update his address with his
attorney, and Welsh does not contend that he asked TCCC officials to forward his mail to the Lamb
16 An institutional official’s interference with a plaintiffs legal mail may violate the plaintiffs constitutional right of
access to the courts under the Due Process Clause or First Amendment right to free speech. See Brewer v. Wilkinson,
3 F.3d 816, 820 (5th Cir. 1993). Here, Welsh solely alleges that Officer Leeks’s alleged actions violated his right of
■access-toHhe-eourbsr-Aim-Compl., at 19.----- —--------------------------- - —
- - -
23
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County Jail.17 In sum, Welsh has not pleaded any facts suggesting that any alleged delay in receipt
of his legal mail was the result of an intentional act by Officer Leeks. Because a claim of
negligence is not actionable under § 1983, the court must dismiss Welsh’s claim for interference
of mail against Officer Leeks. See, e.g., Green, 176 F. App’x at 607 (affirming district court’s
dismissal at screening stage of prisoner’s claim for interference of mail where prisoner pleaded no
facts demonstrating the delay was intentional); Richardson, 841 F.2d at 1 22 (affirming district
court’s grant of summary judgment in favor of prison officials in part because evidence showed
“[a]t best, . . . prison officials negligently lost appellant’s mail”); Dixon v. Short, No. 2:03-CV0214, 2003 WL 22768693, at *1-2 (N.D. Tex. Nov. 20, 2003) (explaining that prisoner failed to
state a claim for mail interference in part because he did not allege that the delay in mail was
intentional).
E.
Counts 4 and 11
Welsh asserts that pursuant to a CCRS “behavior management policy,” he was placed in
the SMU between February 7 and November 27, 2017, without due process.18 Am. Compl., at 23.
Welsh specifically states that unidentified personnel placed him in “isolation” between February
3 and February 7, 2017. Id. Welsh avers that thereafter, he was placed in the SMU on “lockdown
17 Instead, Welsh seems to believe that because TCCC officials “knew” he was at the Lamb County Jail—after being
arrested for assaulting Captain Salazar—they should have automatically forwarded his mail. See Am. Compl., at 19.
He also takes issue with the alleged delay in receiving mail upon his return to TCCC—i.e., he asserts that he returned
to the TCCC on March 22 but Officer Leeks did not provide him with his mail until April 7, 2016. Such a bare
allegation falls short of the intentional conduct required to state a claim. See Green v. Dretke, 176 F. App’x 606,607
(5th Cir. 2006) (explaining prisoner’s claim that “his right of access to the courts was violated when prison officials
intentionally delayed in providing legal mail that was addressed and mailed to his prior prison location [which] caused
him to miss a deadline in an appellate proceeding” did not rise to the level of a constitutional violation where prisoner’s
pleadings suggested that there was a problem with the address change he sent to the Supreme Court and nothing in
the record indicated that the delay was intentional).
18 Welsh did not specify, either in his Amended Complaint or at the evidentiary hearing, who placed him in the SMU.
Instead, he faults CCRS policy for the alleged constitutional violation. To the extent Welsh attributes his constitutional
harm to a CCRS policy, the court addresses such claim in Section II.F.
24
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for thirteen to fifteen hours a day.5' Id. Welsh further alleges that while in the SMU, his visitation
privileges were restricted, resulting in Daniel Rake denying him a visit from his family during the
July 4 holiday. Id. He also contends that officials restricted access to his property and limited his
recreation and commissary privileges, causing him to lose “twenty-five pounds of flesh. 5,19 Id.
Finally, Welsh asserts that Officer Leeks refused to give him his soap and toothpaste for five days,
beginning March 5, 2017. Id. at 24. And in Count 11, Welsh similarly alleges that between
November 13 and 27, 2017, Director Woods denied him certain items, including hygiene, legal
work, a Bible, and clothes. Id. at 65.
1. Welsh has not pleaded facts demonstrating Defendants violated his procedural due
process rights.
Welsh claims that between February 3 and November 27, 2017, he was placed him in the
SMU without due process.20 Id. at 23. Welsh specifically asserts that between February 3 and
February 7, 2017, officials placed him in isolation. Id.
At the evidentiary hearing, Welsh
acknowledged that officials initially placed him in the SMU after he allegedly assaulted another
resident on January 29 at the TCCC.21 Welsh contends that after February 7, he remained in the
SMU on “lockdown” for thirteen to fifteen hours per day, and during that time officials denied
/
him his property (consisting of a television, radio, and Play Station) and the right to purchase any
items from the commissary until August 15. Id. Welsh further alleges that although TCCC
19 In Count 4, Welsh also mentions that he “was denied all therapy” during the relevant time. The court addresses this
claim in Section II.G.
20 Although Welsh’s pleadings and statements at the evidentiary hearing imply that TCCC officials placed him in the
SMU continuously from February 3 through November 27 based on one incident (i.e., assaulting another TCCC
resident), the authenticated records show otherwise. Welsh apparently committed numerous rule violations during
the relevant time-period, indicating that his placement in the SMU and subsequent restrictions may not have been
based on one offense, but a series of offenses that occurred over the course of many months.
21 As a result of this incident, Welsh was arrested by LPD, charged with assault, and held at the Lamb County Jail
until February 3 when he was released back to the custody of the TCCC on a personal recognizance bond.
25
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officials permitted him recreation time, the equipment was limited. See id. (stating that he used an
“outside patio space considered a recreation yard which is too small”).
f
Welsh is entitled to “more considerate treatment and conditions of confinement” than a
prison inmate. Youngberg, 457 U.S. at 322. But “the Constitution does not require that a [civilly
committed person] be afforded any process at all prior to deprivations beyond that incident to
normal [commitment] life.” Deavers, 243 F. App’x at 721 (emphasis in original); see Thielman,
282 F.3d at 483-84 (explaining that plaintiff, a civilly committed SVP, “must identify a right to
be free from restraint that imposes atypical and significant hardship in relation to the ordinary
incidents of his confinement” to state a procedural due process claim). Stated differently, the
deprivation must be “atypical and significant,” in relation to the “ordinary incidents” of an SVP’s
commitment, to trigger federal procedural due process protection. See Thielman, 282 F.3d at 48283.
At the outset, the court notes that Welsh does not name a specific individual he alleges
placed him in the SMU and deprived him of certain privileges in violation of his constitutional
rights. See Am. Compl., at 23 (alleging that unnamed officials placed him in isolation due to
“C.C.R.S. behavior management policy”). Despite being provided the opportunity to elaborate on
such claims at the evidentiary hearing, Welsh did not name a specific individual who personally
placed him in the SMU, but instead stated that CCRS’s behavior management policy, created by
Bryan Thomas and approved by the State of Texas, violated his constitutional rights. Because
Welsh has failed to plead facts demonstrating personal involvement by any individual, the court
must dismiss his claim. See, e.g., Thompson, 709 F.2d at 382 (citing Rizzo, 423 U.S. at 371-72,
377).
26
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Even considering the substance of his allegation, the court finds that Welsh has not asserted
sufficient facts to state a procedural due process violation. To the extent Welsh alleges that
between February 3 and November 27 officials placed him in the SMU22 without certain
privileges—commissary purchases,23 use of his television, radio, and Play Station, visitation, the
use of certain recreation equipment—and without due process, he has not stated a constitutional
claim. “[T]he Constitution is not concerned” with such de minimis restrictions in living conditions.
See Senty-Haugen, 462 F.3d at 886 n.7 (quoting Bell, 441 U.S. at 539 n.20) (explaining that SVP’s
placement in isolation that allegedly deprived him of access to the canteen, outside vendors, and
computer privileges amounted to de minimis restrictions of his liberty “with which the Constitution
is not concerned”). TCCC officials were not required to provide procedural due process prior to
implementing such restrictions. See Deavers, 243 F. App’x at 721. Moreover, as the court
previously discussed, Welsh has not pleaded facts demonstrating that TCCC officials imposed
restrictions for any purpose other than promoting Texas’s twin goals of long-term supervision and
treatment. See Brown, 911 F.3d at 243. Mere placement in the SMU, standing alone, simply does
not amount to an unconstitutional deprivation of liberty. See, e.g., Creveling, 2011 WL 3444092,
at *7-8; see also Harper, 174 F.3d at 719 (quoting Martin, 156 F.3d 580). The court therefore
dismisses this claim as well.
22 In his Amended Complaint, Welsh distinguishes his general placement in the SMU between February 7 and
November 27 from his placement in “isolation” between February 3 and 7. See Am. Compl., at 23. He implies that
“isolation” was a more restrictive type of housing than general SMU living conditions. See id. He has not pleaded
any facts, however, indicating the severity of such restrictions in comparison to the SMU. At the evidentiary hearing,
the court directly asked Welsh to explain how his constitutional rights were violated between February 3 and
November 27, but Welsh made no distinction between the two time periods. Accordingly, the court will not separately
analyze the period between February 3 and 7.
23 At the evidentiary hearing, Welsh clarified that officials provided him with three meals per day. Welsh solely
alleges that officials denied him the privilege to purchase snacks at the commissary or through outside vendors.
27
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2. Welsh’s claim that Daniel Rake denied visitation rights with his mother and brother
on July 4, 2017, does not rise to the level of a constitutional violation.
Welsh alleges that while in the SMU, his mother and brother planned to visit him over the
July 4 weekend, but Daniel Rake told his family that they would not be able to visit. See Am.
Compl., at 23. Welsh asserts that Rake denied the visit because he was in the SMU. Id. To the
extent Welsh alleges a First Amendment violation, he has failed to state a claim.
“Restrictions on the [First Amendment] right to association are evaluated under the same
standard as restrictions on mail.” Bohannan, 527 F. App’x at 294 (citing Overton v. Bazzetta, 539
U.S. 126, 132 (2003)). “While clearly prisoners and those involuntarily committed, by virtue of
their incarceration and custody status, do not forfeit their First Amendment right to [associate],
that right may be limited by institutional regulations that are reasonably related to legitimate
penological interests.” Id. (quoting Rivera v. Rogers, 224 F. App’x 148, 151 (3d Cir. 2007)).
Where the restriction bears “a rational relation” to the state’s interests in security, order, and
rehabilitation, the regulation should be sustained. Id. (quoting Overton, 539 U.S. at 132). Stated
differently, “restrictions [on visitation] are permissible so long as they advance the state’s interest
in security, order, and rehabilitation.” Id. (citing Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir.
2012).
In Bohannan v. Doe, the Fifth Circuit reversed the district court’s dismissal of an SVP’s
claim that defendants violated his right to associate, finding that the SVP had alleged a plausible
claim where he asserted that defendant’s policy served as a complete ban on all outside contact.
Id. at 294-95. Here, in contrast, Welsh does not contend that Rake implemented, or even enforced,
a blanket policy against all visitation by family members. Instead, Welsh asserts that on one
occasion, his mother and brother called Rake to confirm whether they could visit Welsh, and Rake
28
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told them no because Welsh was currently housed in the SMU.25 Moreover, the visitation logs
included in the authenticated records show that Welsh’s family members visited him on several
occasions prior to the date in question. Based on Welsh’s bare allegation, the court cannot
conclude that Rake’s isolated denial of a family visit due to his SMU custody status is inconsistent
with or not rationally related to the state’s interests in rehabilitation and order. See, e.g.,Bohannan
v. Griffin, No. 4:11-CV-299-A, 2016 WL 3647625, at *9 (N.D. Tex. June 30, 2016) (dismissing
SVP’s claim regarding freedom of association where defendant’s alleged interference was
reasonably related to the institution’s regulations and requirements as well as its supervision of
SVPs generally); Allen, 2013 WL 357614, at *5 (dismissing SVP’s freedom of association claim
where he merely alleged defendants restricted but did not completely bar visits from family
members). Accordingly, the court dismisses Welsh’s First Amendment claim against Daniel Rake.
3. Welsh has not pleaded facts demonstrating that between March 5 and 10, 2017,
Officer Leeks unconstitutionally denied him hygiene items.
Welsh contends that between March 5 and 10, 2017, while housed in the SMU, Officer
Leeks denied him soap and toothpaste in violation of his constitutional rights. Am. Compl., at 24.
Welsh’s allegation does not demonstrate that Officer Leeks’s alleged actions represent a
“substantial departure from accepted professional judgment.” See Youngberg, 457 U.S. at 323.
Initially, the court observes that Welsh does not assert that Officer Leeks’s actions give rise to
unconstitutional conditions of confinement. See Am. Compl., at 23-25. Instead, Welsh frames
his claim against Officer Leeks as a violation of the Fourth Amendment, as well as various state
laws. Id.
elsn explained iha
is why they called prior to traveling to the TCCC.
■25*
29
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The court has found no authority for the Fourth Amendment’s application under the facts
alleged by Welsh. Moreover, even if the court analyzes Welsh’s claim under the generous
Youngberg standard, he has not pleaded any facts demonstrating how the alleged denial of hygiene
items harmed him. Welsh does not allege he suffered any physical harm as a result of the claimed
denial. See id. at 23-24. Instead, Welsh asserts that Leeks violated “the Common Law Tort of
Intentional Inflection [sic] of emotion distress by causing emotional and mental suffering with
extraordinary anxiety, depression, hopelessness, helplessness, despair, sleepless nights, headaches,
sickening of physical constriction, melancholy and sickening of the spirit.” Id. at 26. Such a claim
is not cognizable under § 1983. See Baker v. McCollan, 443 U.S. 137, 146 (1979) (“Section 1983
imposes liability for violations of rights protected by the Constitution, not for violations of duties
of care arising out of tort law.”). Accordingly, the court must dismiss Welsh’s claim. See, e.g.,
Creveling, 2011 WL 3444092, at *7-8 (dismissing SVP’s claim that defendants denied him “soap
for a period of time” where SVP had access to a toilet and sink and failed to allege “an extreme
deprivation” of his constitutional rights).
4. Director Woods’s alleged deprivations of certain items does not violate Welsh’s
constitutional rights.
In Count 11, Welsh claims that between November 13 and 27, 2017, Security Director
Woods did not allow him to have any hygiene items (toothbrush, toothpaste, and soap), stationary,
his legal work, a Bible, or clothes. Am. Compl., at 65. Welsh further asserts that Woods did not
provide him with utensils and supplied only limited toilet paper. Welsh alleges that as a result, he
was forced to eat meals with dirty hands. Id. At the evidentiary hearing, however, Welsh conceded
that he had access to a sink with running water and a toilet during the relevant time period. He
also stated that while the denial of hygiene items hurt his dignity, he did not suffer any other
adverse effects from the alleged denial.
30
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With respect to his allegation that Director Woods deprived him of a toothbrush,
toothpaste, and soap, Welsh stated at the evidentiary hearing that officials provided him with the
items on November 14 or 15—i.e., within two days of placement in the SMU. Welsh does not
contend he suffered any harm (other than a loss of dignity) due to this brief delay. Accordingly,
the court must dismiss his claim against Director Woods for the alleged denial of hygiene items in
November 2017.
Likewise, Welsh has not pleaded facts demonstrating that the alleged denial of stationary
and legal materials caused him harm. The court interprets Welsh’s claim as one for denial of
access to courts. To prevail on his claim, Welsh must show that Director Woods denied him access
to the courts and that such a deprivation prejudiced him. See Bohannan, 2016 WL 3647625, at
*13 (citing Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996)). That is, Welsh must plead facts
demonstrating “an actual injury arising from this purported denial.” Day v. Seiler, 560 F. App’x
316, 319 (5th Cir. 2014) (citing Lewis, 518 U.S. at 356). Welsh does not contend Woods’s alleged
failure to provide him with stationary and legal materials caused him any harm—e.g., that he was
unable to present a nonffivolous legal claim or defense. See Lewis, 518 U.S. at 355. The court
must therefore dismiss his access to courts claim. See, e.g., Day, 560 F. App’x at 319 (affirming
district court’s dismissal of SVP’s access to courts claim where he did not allege the purported
lack of access caused him an actual injury); Bohannan, 2016 WL 3647625, at *13 (dismissing
SVP’s access to courts claim where his allegations did not demonstrate “he was denied the basic
tools needed to present a nonfrivolous legal claim or defense”); see also Birl v. Hicks, Civil Action
No. 9:12cvl42, 2013 WL 2647297, at *9 (E.D. Tex. June 11, 2013) (dismissing prisoner’s claim
regarding defendant’s confiscation of legal materials he “might” need in the future because such
31
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an allegation “is wholly insufficient to show legally cognizable harm or to set out a constitutional
claim for the deprivation of legal materials”).
Finally, Welsh asserts that between November 13 and 27, Director Woods did not permit
him to have a Bible in his dormitory. Am. Compl., at 65. As a result, he claims he was unable to
“associate with God.” Civilly committed persons “need only be afforded a reasonable opportunity
to exercise religious freedom guaranteed by the First and Fourteenth Amendments.”26 Davis v.
Wall, No. 94-41002, 1995 WL 136204, at *1 (5th Cir. Mar. 9, 1995) (citing Cruz v. Beto, 405 U.S.
319, 322 n.2 (1972)).
To establish a denial of his right to practice religion, Welsh must
demonstrate “that he was completely denied the right to practice his religion or that the restrictions
or prohibitions placed on the practice of his religion were not rationally related to the achievement
of valid penological goals.” Bohannan, 2016 WL 3647625, at *8 (citing Hines v. Graham, 320 F.
Supp. 2d 511, 522 (N.D. Tex. 2004)); see Creveling, 2011 WL 3444092, at *7 (citing O’Lone v.
Estate ofShabazz, 482 U.S. 342, 349-50 (1987) and Turner v. Safley, 482 U.S. 78, 89 (1987))
(“To establish his denial of religion claim, [SVP] must demonstrate that the restriction on religious
practice was not reasonably related to a legitimate, penological interest.”).
Here, Welsh solely contends that Woods did not permit him to have certain property,
including his Bible, for approximately two weeks. “The pertinent question is not whether the
inmates have been denied specific religious accommodations, but whether, more broadly, the
prison affords the inmates opportunities to exercise their faith.” Freeman, 369 F.3d at 861. Welsh
26 The cases the court relies on to analyze Welsh’s First Amendment religious freedom claim pertain to the rights of
prisoners; the court recognizes that civilly committed persons are not prisoners, and their rights may differ from those
of prisoners. See Bohannan, 527 F. App’x at 289-90. Nevertheless, the court finds, as have other courts, it is
“appropriate to rely on legal authorities involving rights of and duties to prisoners as providing a reasonable analogy
to the statutory supervision imposed on a sexually violent predator.” Bohannan, 2016 WL 3647625, at *8 n.9; see
Creveling, 2011 WL 3444092, at *6-7 (relying on prisoner § 1983 religious freedom cases to analyze SVP’s claim).
32
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does not assert that Woods wholly denied him the ability to practice his religion, nor does he even
allege that the denial substantially burdened the practice of his religion.27 Instead, Welsh posits
that his lack of a Bible prevented him from associating with God. The alleged denial of a Bible,
standing alone and for this relatively brief period, does not constitute a denial of the right to
practice religion. See, e.g., Al-Amin v. Donald, 165 F. App’x 733, 739—40 (11th Cir. 2006)
(affirming dismissal of prisoner’s First Amendment free exercise claim where “[h]e did not
expressly state a free exercise claim and did not refer to any specific constraints on his religious
practice in his complaint”); Tabor v. Coleman, Civil Action No. 18-1308, 2018 WL 6817033, at
*4 (W.D. La. Dec. 3, 2018) (recommending dismissal of prisoner’s claim that defendants deprived
him of a Bible for thirty days, finding that prisoner’s bare allegation was conclusory and did not
disclose enough facts to state a plausible claim). The court therefore dismisses this claim against
Director Woods.
F.
Counts 2 and 4: CCRS Behavior Management Policy
In Counts 2 and 4, Welsh states he is challenging an alleged CCRS policy that requires
officials to place SVPs in the SMU while they have criminal charges pending against them. See
Am. Compl., at 12-15, 25. ’
CCRS is a private corporation. Despite its status as a private entity, however, CCRS
qualifies as a state actor under § 1983. See Hitt v. McLane, A-l 7-CV-289-SS, 2018 WL 773992,
at *8 (W.D. Tex. Feb. 7, 2018); Stone, 2017 WL 3037632, at * 2 (noting CCRS qualifies as a state
actor although it is a private entity). As with other § 1983 defendants, the law does not impose
respondeat superior liability on CCRS for the alleged actions of its employees (Oliver, 276 F.3d
27 In fact, Welsh makes no contention that Woods’s alleged denial of a Bible implicated his right to the free exercise
“seized”
making no mention of the impact on his ability to practice his religion). Because the court must liberally construe pro
se pleadings, however, it nevertheless analyzes Welsh’s claim under the First Amendment.
33
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at 742 (“Section 1983 does not create supervisory or respondeat superior liability.”)); nonetheless,
CCRS may be responsible for a constitutional violation if it results from an official policy or
custom. Piotrowski v. City ofHous., 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell v. Dep’t
ofSoc. Servs., 436 U.S. 658, 694 (1978)). To prevail on such a claim against CCRS, Welsh must
establish the following: “a policymaker; an official policy; and a violation of constitutional rights
whose ‘moving force’ is the policy or custom.” Id. (quoting Monell, 436 U.S. at 694). “An official
policy may be a policy statement, ordinance, regulation, or decision that has been officially
adopted and promulgated by a policymaker.” Hitt, 2018 WL 773992, at *8 (citing Webster v. City
ofHous., 735 F.2d 838, 841 (5th Cir. 1984)).
At the evidentiary hearing, Welsh stated that Bryan Thomas created the policy that violated
his constitutional rights. The court assumes, without deciding, that Thomas is a “policymaker.”
Nevertheless, Welsh has not alleged sufficient facts supporting the required second and third
elements. First, Welsh identified only isolated instances of placement in the SMU when he faced
criminal charges. He does not contend that the TCCC automatically placed other residents in the
SMU, without a hearing, after facing criminal charges. “‘Isolated violations are not the persistent,
often repeated, constant violations, that constitute custom and policy as required for municipal
section 1983 liability.’” See Piotrowski, 237 F.3d at 581-82 (quoting Bennett v. City of Slidell,
728 F.2d 762, 768 n.3 (5th Cir. 1984)). An official policy “cannot ordinarily be inferred from
single constitutional violations.” Id. (quoting Bennett, 728 F.2d at 768 n.3).
More significantly, however, Welsh has failed to plead facts demonstrating an underlying
constitutional violation. As discussed in detail in Section II.C. and E., the court has already
concluded that Welsh’s placement in the SMU did not violate his substantive or procedural due
process rights. Without an underlying constitutional violation, Welsh cannot state a cognizable
34
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claim based on an allegedly unconstitutional policy. See, e.g., Piotrowski, 237 F.3d at 578; Hitt,
2018 WL 773992, at *9 (dismissing SVP’s policy claim against CCRS in part because he failed to
state a constitutional violation). For all of these reasons, Welsh’s policy claim against CCRS must
be dismissed.
G.
Counts 5 and 9
In Count 5, Welsh contends that between February 3 and November 27, 2017 (while
housed in the SMU), various Defendants denied him sex offender therapy and counseling in
violation of his constitutional rights. Am. Compl., at 30. Specifically, Welsh asserts that between
February 3 and April 13, and April 13 and November 28, Clinical Directors Goldstein and Towns,
respectively, denied him therapy. Id. He claims Defendants acted pursuant to a CCRS policy.28
Welsh further avers that Dr. Peter Henschel of Central Psychological Services violated his First,
Fourth, and Fourteenth Amendment rights “by purposely diagnosing plaintiff with a bogus mental
disease not professionally recognized under the standard governing psychological field under the
DSM-V.” Id. at 32. Welsh alleges that as a result of Defendants’ actions, his civil commitment
has been prolonged by 586 days. Id. at 30-31 (claiming he “has lost two hundred ninety-three
days of confinement plus two hundred ninety-three days he must make-up for the missed
counseling”).
In Count 9, Welsh asserts that on August 14, 2017, Officers Mosely29 and Robbie Spencer
transported him to a medical appointment in Lubbock, Texas. Id. at 52. Welsh claims that he
asked Mosely and Spencer to “advert [sic] their gaze” while the doctor examined him, but the
28 Welsh makes a similar claim in Count 4, stating that between November 3 and November 27,2017, he “was denied
all therapy.” Am. Compl., at 24. Welsh’s allegations in Count 5 and at the evidentiary hearing are more specific than
the general allegation in Count 4. The court considers all three counts in its discussion herein.
29 Welsh did not name Officer Mosely in the “Defendants” section of his Amended Complaint. See Am. Compl., at
2-4. Because Welsh names Mosely in Count 9, however, the court addresses Welsh’s claims against him.
35
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officers refused. Id. Thereafter, Welsh contends that Spencer authored a “false incident report
claiming plaintiff was unruly with disorderly conduct,” which “was utilized in a government
investigation, In re Commitment of Lonnie Welsh out of Montgomery County 435th Judicial
District Court, to help commit plaintiff through his biennial review to two more years of civil
commitment. „30 Id. at 53.
1. Welsh has not pleadedfacts demonstrating CCRS, Goldstein, and Towns denied him
therapy in violation of his constitutional rights.
At the evidentiary hearing, Welsh conceded that between February 3 and November 27,
Goldstein and Towns provided him with three or four therapy sessions. Welsh attributes the lack
of additional therapy to a CCRS policy that allegedly prohibits TCCC residents from receiving
treatment while confined to the SMU. Welsh asserts that as a result of the denial of therapy, his
commitment has been prolonged.
The Texas civil commitment statute reflects that SVPs should receive “long-term
supervision and treatment. . . .” Tex. Health & Safety Code § 841.001; see Brown, 911 F.3d at
243 (quoting § 841.001) (noting that Texas civil commitment has “twin goals of ‘long-term
supervision and treatment of sexually violent predators’”). If Defendants in fact failed to provide
Welsh with any sex offender treatment while housed in the SMU, “the confinement could not
possibly further the goals of supervision and treatment. »31 Brown, 911 F.3d at 244 (vacating
district court’s dismissal of SVP’s due process claim against certain defendants, finding SVP’s
30 Welsh also names Dr. Russel as a Defendant in Count 9; however, he solely alleges Dr. Russel committed state law
tort violations. See Am. Compl., at 54. For the reasons stated in Section 11.P.5, below, the court dismisses Welsh’s
tort claims against Dr. Russel.
31 The court notes § 841.150(a) provides that “[t]he duties imposed on the [TCCO] and the judge by [the SVP statutes]
are suspended for the duration of a detention or confinement of a committed person in a correctional facility, secure
correctional facility, or secure detention facility.” Tex. Health & Safety Code § 841.150(a). Welsh, although arrested
and charged with misdemeanor assault for his alleged actions on January 29,2017, was subsequently released on bond
back to the custody of the TCCC during this period, where TCCC officials then allegedly placed him in the SMU.
The court therefore finds § 841.150(a) inapplicable to this particular claim.
36
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due process claim survived screening where he pleaded sufficient facts plausibly demonstrating
“the state confined him without treatment”). But see Karsjens v. Piper, 336 F. Supp. 3d 974, 98485 (D. Minn. 2018) (citing Karsjens v. Piper, 845 F.3d 394, 410-11 (8th Cir. 2017)) (explaining
that in the Eighth Circuit, S VPs do not have a due process right to effective or reasonable treatment,
even where SVP alleges that the deficient treatment delays or blocks his release from
commitment). In this case, however, Welsh does not contend that Goldstein and Towns denied
him all therapy. Instead, he acknowledges that he received three or four sessions.32 Moreover,
Welsh’s assertion that the harm he suffered—a prolonged commitment—is speculative at best.
Welsh has not pleaded any facts suggesting when he might have been advanced in tiers, or released
from supervision, but for the alleged limited treatment. In addition, the court observes that Welsh
is now serving an eleven-year sentence in TDCJ, and is presumably not receiving any treatment as
a result. See supra note 31. Welsh does not allege that he could or would have been released from
civil commitment before his incarceration began, nor does he assert that any lapse in treatment
contributed to his criminal incarceration. The possibility that his placement in the SMU between
February 3 and November 27, 2017, prolonged the duration of his civil commitment is ‘“too
attenuated’ to invoke further due process protections.” Senty-Haugen, 462 F.3d at 887 (citing
Sandlin, 515 U.S. at 487).
Similarly, to the extent Welsh attributes his alleged constitutional harm to a CCRS policyno therapy while housed in the SMU—he has failed to state a claim. As previously noted, Welsh
32 The authenticated records also indicate Welsh either refused to attend treatment sessions or, due to his behavior,
was not permitted to attend. Towns prepared a “Biennial Summary” report on September 13, 2017, which notes the
following: “Welsh attended treatment group from April 2016 to January 2017. On January 29, 2017, Mr. Welsh was
arrested for misdemeanor assault and transported to the Lamb County Jail. Once he returned he stopped attending sex
offender treatment groups.” In his Amended Complaint, however, Welsh denies such statements and claims he “has
absolute proof to the contrary.” Am. Compl., at 30.
Welsh’s allegations.
37
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must establish the following to prevail on a policy claim: “a policymaker; an official policy; and
a violation of constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski, 237
F.3d at 578 (quoting Monell, 436 U.S. at 694).
Welsh has not alleged sufficient facts supporting all of the foregoing elements. Welsh
claims that Towns and Goldstein denied him therapy pursuant to a CCRS policy. Am. Compl., at
30-31. But other than his personal belief that such a policy exists, Welsh has not pleaded facts
identifying such a policy or “widespread practice.” See Piotrowski, 237 F.3d at 581-82 (quoting
Bennett, 728 F.2d at 768 n.3) (“‘Isolated violations are not the persistent, often repeated, constant
violations, that constitute custom and policy as required for municipal section 1983 liability.’ A
customary municipal policy cannot ordinarily be inferred from single constitutional violations.”).
Other than an isolated incident, Welsh does not plead any facts showing that any other TCCC
residents were denied therapy. See Peterson v. City ofFort Worth, 588 F.3d 838, 850-51 (5th Cir.
2009) (affirming district court’s conclusion that twenty-seven complaints against police
department for alleged use of excessive force did not support conclusion that city maintained
official policy of condoning excessive force); Jenkins v. LaSalle Sw. Corrs., No. 3:17-cv-1376-MBN, 2018 WL 3748196, at *8 (N.D. Tex. July 11, 2018) (recommending dismissal of plaintiffs
Monell claim where the “alleged constitutional violations [were] isolated to him”).
Moreover, even if Welsh had pleaded facts identifying an official policy,33 his claim would
nevertheless fail because he has not demonstrated an underlying constitutional violation. As
discussed above, Welsh has not alleged a § 1983 claim based on a violation of his substantive due
process rights; Without an underlying constitutional violation, Welsh cannot establish that any
alleged policy was the “‘moving force’” behind his constitutional harm. Piotrowski, 237 F.3d at
33 At the evidentiary hearing, Welsh asserted that Bryan Thomas created and implemented the alleged CCRS policy.
As in Section II.F. above, the court assumes Thomas has policy-making authority for the purpose of its analysis.
38
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578 (quoting Monell, 436 U.S. at 694); see Hitt, 2018 WL 773992, at *9 (dismissing SVP’s policy
claim against CCRS in part because SVP failed to allege an underlying constitutional violation).
Based on the facts alleged, Welsh has not stated a cognizable due process claim against
Goldstein and Towns, nor has he established a policy claim against CCRS. Accordingly, the court
dismisses Welsh’s claims against Goldstein, Towns, and CCRS.
2. Welsh has not pleadedfacts demonstrating Dr. Henschel, Officer Mosely, or Officer
Spencer violated his constitutional rights.
Welsh avers that Dr. Henschel violated his constitutional rights by diagnosing him with
ephebophilia—a “bogus mental disease not professionally recognized”—and then including such
diagnosis in his biennial report.34 Am. Compl., at 31—32. Welsh contends that ephebophilia is not
listed in the current Diagnostic and Statistical Manual of Mental Disorders (DSM-5); therefore,
Dr. Henschel’s diagnosis must be incorrect. Id. This inaccurate diagnosis, Welsh contends,
contributed to his continued civil commitment. Id. Similarly, Welsh asserts that Officer Spencer
authored a false disciplinary report in connection with an August 2017 incident, which also
contributed to his continued civil commitment. Id. at 52-53.
Under Texas law, Welsh is civilly committed for an indeterminate term, “until [his]
behavioral abnormality has changed to the extent that [he] is no longer likely to engage in a
predatory act of sexual violence.” See Tex. Health & Safety Code Ann. § 841.081(a). A state
court judge conducts the “biennial review of the status of the committed person and issue[s] an
order concluding the review or setting a hearing . . . .” Id. § 841.102(a). A civilly committed
person “is entitled to be represented by counsel at the biennial review ....” Id. § 841.102(b). That
34 Ephebophilia is defined as “a sexual attraction to pubescent or post-pubescent males.” Peter Cimbolic & Pam
Cartor, Abstract (2006), http://www.ncjrs.gov/App/publications/abstract.aspx?ID=238978.
39
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is, the reviewing judge—not TCCC or TCCO officials—determines whether an SVP’s
commitment should continue.
At the outset, the court observes that although Welsh attributes his continued (or
prolonged) civil commitment to the alleged false reports written by Dr. Henschel and Officer
Spencer, a state court judge—not TCCC staff members or a retained expert—determines whether
Welsh’s “behavioral abnormality has changed to the extent that [he] is no longer likely to engage
in a predatory act of sexual violence.” Id. § 841.081(a). Dr. Henschel performed and prepared a
report concerning the biennial examination {id. § 841.101), which the state court judge then
reviewed, in combination with other reports and documents, and issued an order continuing
Welsh’s commitment. Id. § 841.102(a). Stated differently, the state court judge made the ultimate
determination to continue Welsh’s civil commitment, finding that his behavioral abnormality has
not changed. Thus, to the extent Welsh faults Officer Spencer or Dr. Henschel for singlehandedly
extending his commitment, Welsh blames the wrong defendants.
Similarly, Welsh’s contention that he would have been released to less restrictive housing,
or advanced in tiers, but for Dr. Henschel’s alleged false diagnosis and Officer Spencer’s purported
false report, is theoretical at best. Welsh pleads no facts demonstrating that he was otherwise
eligible for advancement or release, or would have in fact received such a promotion or been
released to less restrictive housing, absent the reports. For these additional reasons, Welsh’s claim
must also be dismissed. See generally DeMarco v. Davis, 914 F.3d 383, 386—87 (5th Cir. 2019)
(quoting Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010)) (“We do not accept as true
conclusory allegations, unwarranted factual inferences, or legal conclusions.”); Senty-Haugen, 462
F.3d at 887 (analyzing SVP’s due process claim and noting that because there was no basis for
determining “at what point he might be released from the Offender Program, regardless of whether
. 40
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he had treatment throughout his isolation period,” the possibility of lengthened commitment was
too attenuated to require further due process protections); Thompson v. Fourth Judicial Dist.
Court, Ouachita Par., Civil Action No. 3:12-cv-1645, 2012 WL 6600338, at *3 (W.D. La. Sept.
25, 2012) (citing Ashcroft, 556 U.S. at 679) (explaining that “in order to be afforded the benefits
of this assumption [that plaintiffs factual allegations are true] a civil rights plaintiff must support
his claims with specific facts demonstrating a constitutional deprivation and may not simply rely
on conclusory allegations”).
In addition, the authenticated records demonstrate that the experts evaluating Welsh’s
treatment process through the biennial review did not consider, at least in any meaningful way,
Officer Spencer’s alleged false report.35 Likewise, while Dr. Henschel noted that in his expert
opinion, Welsh suffered from ephebophilia, he also opined that Welsh suffered from several other
disorders. Dr. Henschel’s report largely focused on Welsh’s behaviors at the TCCC as the reason
for his recommendation that Welsh remain committed—not the diagnosis of any one disorder.
Thus, despite Welsh’s contention that Officer Spencer’s and Dr. Henschel’s reports caused him to
remain civilly committed, the authenticated records show that any report or particular diagnosis
was but one factor in the officials’ decision.
Finally, the court notes that even if it examines the essence of Welsh’s conclusory
allegations against all of the above Defendants (Towns, Goldstein, Mosely, Spencer, Dr. Henschel,
35 The reviewers considered other reports, i.e., a September 2017 report from Towns noting that Welsh had committed
fourteen TCCC rule violations, not counting the allegedly false August 14, 2017, incident—including disorderly
conduct, threatening residents and staff, possession of medication not prescribed, and assault—since arriving at the
TCCC in November 2015. Welsh apparently also refused to submit to scheduled polygraphs and penile
plethysmograph (PPG) testing. Towns explained that Welsh’s “disruptive, disrespectful, threatening, and assaultive
behavior has limited his ability to participate in the treatment program,” and even when Welsh attends therapy, “he
appears unwilling to accept responsibility for his offenses . . . .” In sum, Towns recommended that Welsh remain
civilly committed “[d]ue to his history of lacking the ability to regulate his emotions, impulsive responses, and lack
of participation in treatment.” Dr. Henschel, who prepared the “Biennial Psychological Evaluation and Risk
paifdue to his
failure to “perceive his [past crimes] as abusive and exploitative” and behavioral issues at TCCC.
41
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and CCRS), he fails to allege sufficient facts demonstrating a due process claim. Assuming Welsh
possesses a liberty interest in his commitment or tier status (which ultimately determines whether
he will be released to less restrictive confinement), Welsh’s procedural due process claim falls
short because he has not pleaded facts showing that: (1) he utilized the applicable post-deprivation
procedure provided under state law; or (2) the available procedure is constitutionally inadequate.
Texas law explicitly provides that Welsh may, “[wjithout the [TCCO’s] approval... file a petition
with the [appropriate state] court for transfer to less restrictive housing and Supervision. The court
shall grant the transfer if the court determines that the transfer is in the best interests of the person
and conditions can be imposed that adequately protect the community.” Tex. Health & Safety
Code Ann. § 841.0834(b). Welsh may also file a petition for his release from civil commitment.
See id. § 841.122 (“On a person’s commitment and annually after that commitment, the office
shall provide the person with written notice of the person’s right to file with the court and without
the office’s authorization a petition for release.”).
Welsh does not contend, nor do the records show, that he has filed any petition under the
foregoing statutes; as a result, he cannot state a viable Fourteenth Amendment claim due to his
failure to avail himself of an available state law remedy or challenge its adequacy. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 537^14 (1981))
(explaining that a plaintiff “must either avail himself of the remedies guaranteed by state law or
prove that the available remedies are inadequate” before bringing a constitutional claim); Bittick
v. Mooney, 58 F. App’x 664, 664 (8th Cir. 2003) (citing several cases for support) (concluding that
the district court properly dismissed prisoner’s § 1983 claim that defendants wrongfully collected
child support in excess of the amount provided in his divorce decree where post-deprivation
remedies were available to prisoner and he had not demonstrated the inadequacy of such remedies);
42
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see also Grant v. Menchaca, Civil Action No. 2:18-cv-18, 2018 WL 3118391, at *3 (S.D. Tex.
Jan. 24,2018) (finding plaintiff had not alleged any facts showing “that he properly took advantage
of his available tort remedy or that such remedy was inadequate” and thus recommending dismissal
of plaintiff s due process claim). “Under Fifth Circuit precedent, a party complaining of a lack of
due process is required to utilize available state court remedies before proceeding to court under
§ 1983.” Hitt, 2018 WL 773992, at *14 (citing Burns v. Harris Cty. Bail Bond Bd., 139 F.3d 513,
519 (5th Cir. 1998)); see also Browning v. City of Odessa, 990 F.2d 842, 845 n.7 (5th Cir. 1993)
(citing several cases for support) (noting that the court “has consistently held that one who fails to
take advantage of procedural safeguards available to him cannot later claim that he was denied due
process”); Rathjen v. Litchfield, 878 F.2d 836, 839 (5th Cir. 1989) (explaining “that no denial of
procedural due process occurs where a person has failed to utilize the state procedures available to
him”). Because Welsh may seek either release or review of his tier status via defined state
procedures, his due process claims are frivolous and must be dismissed.
H.
Count 6
Welsh alleges that on March 21, 2017, Security Officer Adrian Flores kicked the “metal
trap door”—i.e., the food slot—closed, smashing Welsh’s left hand in the slot. Am. Compl., at
38. At the evidentiary hearing, Welsh admitted, and the authenticated video footage confirms, that
for approximately fifteen minutes prior to the alleged incident, he refused to remove his hands
from the slot, despite express orders to do so. Welsh claims that TCCC officials had turned the
water off in his cell, and he was “protesting” that decision. As a result of the alleged incident,
Welsh asserts that he suffered a bruised and swollen left hand.
Welsh also avers that after the incident, LPD Officer Kasting came to the TCCC to
complete a welfare check on Welsh (requested by his mother and brother). Id. Welsh contends_____
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that he asked Officer Kasting to press charges against Officer Flores, but he refused, only agreeing
to take Welsh to the medical department. Id.
Finally, Welsh alleges that Officers Flores, Margarito Gonzales, Maria Sanchez, Jorge
Juarez, and John and Jane Does violated his constitutional rights by not providing “safe conditions,
protection, and ordinary care,” and Officers Flores and Gonzales breached his rights by placing
him in “punitive isolation” following the incident.36 Id. at 39.
1. Welsh has not demonstrated Officer Flores used force excessive to the need in
violation of the Constitution.
The Fifth Circuit has not considered the appropriate constitutional standard applicable to a
§ 1983 excessive force claim brought by a civilly committed SYP. In Andrews v. Neer, however,
the Eighth Circuit examined the issue, and concluded that an involuntarily committed person’s
“excessive-force claim should be evaluated under the objective reasonableness standard usually
applied to excessive-force claims brought by pretrial detainees.” 253 F.3d 1052, 1061 (8th Cir.
2001). In so concluding, the court explained the following:
The Eighth Amendment excessive-force standard [(typically used to analyze
prisoner excessive force claims)] provides too little protection to a person whom
the state is not allowed to punish. On the other hand, the state of Missouri was
entitled to hold [plaintiff] in custody. His confinement in a state institution raised
concerns similar to those raised by the housing of pretrial detainees, such as the
legitimate institutional interest in the safety and security of guards and other
individuals in the facility, order within the facility, and the efficiency of the
facility’s operations.
Id. The undersigned finds the Eighth Circuit’s reasoning instructive, and will likewise apply an
objective reasonableness standard—the same standard applicable to pretrial detainees.
36 The court has already addressed Welsh’s claim that his placement in the SMU between February 3 and November
27 violated his due process rights. See supra Section II.E. (Counts 4 and 11). For the reasons discussed therein, the
court dismisses Welsh’s claims against Flores and Gonzales.
44
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The United States Supreme Court has recognized that a pretrial detainee’s use of force
claim arises under the Fourteenth Amendment, and “that a pretrial detainee must show only that
the force purposefully and knowingly used against him was objectively unreasonable.” Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (abrogating lower courts’ application of Eighth
Amendment excessive force standards in Hudson v. McMillian, 503 U.S. 1 (1992) to pretrial
detainees). “[Ojbjective reasonableness turns on the ‘facts and circumstances of each particular
case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness of the
force used must be assessed “from the perspective and with the knowledge of the defendant
officer” and with “deference to policies and practices needed to maintain order and institutional
security.” Id. at 2474. In determining the objective reasonableness of an officer’s use of force, a
court should consider the following non-exclusive factors: (1) the relationship between the need
for the use of force and the amount of force used; (2) the extent of the plaintiffs injury; (3) any
effort made by the officer to temper or limit the amount of force; (4) the severity of the security
problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether the plaintiff
was actively resisting. Id. at 2473.
Initially, the court observes that Welsh admits he refused, for approximately fifteen
minutes, to remove his hands from the food slot, despite multiple directives from officers to do so,
thereby justifying the use of some degree of force by Officer Flores. See, e.g., Rushing v. Simpson,
No. 4:08CV1338 CDP, 2009 WL 4825196, at *7 (E.D. Mo. Dec. 11, 2009) (citing cases for
support) (explaining that plaintiffs (a detainee awaiting civil commitment determination) refusal
to comply with orders, “after almost seven minutes of being asked to do so by multiple staff
members, justified the use of force”); Calhoun v. Wyatt, Civil Action No. 6:11CV4, 2013 WL
:x.
y 2, 2013) (noting that inmate’s refusal to obey orders “set the stage
45
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for the use of force”). Disobeying orders poses a threat to the order and security of an institution.
Bourne v. Gunnels, No. CV H-16-0515,2017 WL 2483815, at *10 (S.D. Tex. June 7,2017); Minix
v. Blevins, CA No. 6:06-306, 2007 WL 1217883, at *24 (E.D. Tex. April 23, 2007) (citation
omitted) (recognizing that even where prisoner believes order to be unjustified or improper, such
belief does not give him the right to disobey at his whim); Rios v. McBain, Civ. No. A504CV84,
2005 WL 1026192, at *7 (E.D. Tex. Apr. 28, 2005) (noting that “open defiance of orders plainly
poses a threat to the security of the institution, regardless of whether or not the defiance is
emanating from within a locked cell”). As such, a reasonable officer could believe that some use
of force was objectively reasonable due to the threat presented by Welsh’s repeated refusal to
follow orders. Thus, the fifth and sixth Kingsley factors (i.e., the threat to institutional order
reasonably perceived by the officer and plaintiffs active resistance) weigh in favor of finding that
Officer Flores’s alleged use of force was objectively reasonable. See Kingsley, 135 S. Ct. at 2473.
The third and fourth Kingsley factors (i.e., any effort made by the officer to temper or limit
the amount of force and the severity of the security problem at issue) similarly weigh in Officer
Flores’s favor. Welsh claims that Flores “deliberately” kicked the food slot in an attempt to close
it. Am. Compl., at 38. Welsh acknowledges, however, that he had removed his hands from the
slot, but as Flores attempted to close it, Welsh pushed the slot back open with his foot and hand to
prevent Flores from doing so. The authenticated video footage confirms that simultaneously with
Welsh’s actions, Flores kicked the slot again in an effort to close it. In other words, Welsh
intentionally stuck his foot and hand into the slot to thwart Flores’s efforts to close it, putting
himself in harm’s way. Under the circumstances, and based on the facts Welsh has pleaded, the
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court cannot conclude that Officer Flores made no effort to limit the amount of force,37 particularly
in light of Welsh’s admitted refusal to follow orders and active resistance to same.
Ultimately, it is the second Kingsley factor (i.e., the extent of plaintiffs injury), considered
in the context of the other criteria, that resolves this question in favor of Officer Flores. Although
no particular quantum of injury is required (Wilkins v. Gaddy, 599 U.S. 34, 37 (2010)), the extent
of injury is an important factor courts assess in determining whether the amount of force used on
a pretrial detainee was reasonable. See Kingsley, 135 S. Ct. at 2473. Courts routinely dismiss cases
where the complaint alleges nothing more than de minimis injury. See, e.g., Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997) (affirming district court’s dismissal of plaintiffs claims for
excessive force where injury consisting of “a sore, bruised ear lasting for three days” was de
minimis)', Young v. Saint, No. 92-8420,1993 WL 117991, at *3 (5th Cir. Mar. 31,1993) (affirming
order dismissing complaint pursuant to 28 U.S.C. § 1915 where injuries consisting of “an
undetermined amount of blood and [ ] two small ‘scratches’” were de minimis)-, Hodge v. Williams,
Civil Action No. 4:08-CV-330-Y, 2009 WL 111565, at *3 (N.D. Tex. Jan. 16, 2009) (finding as
de minimis inmate’s claimed injuries of “cuts on his hand,” a cut inside his lip, and a sore neck);
Rushing, 2009 WL 4825196, at *8 (explaining that plaintiffs alleged injuries—including a
temporary asthma attack and migraines—were de minimis). Here, Welsh claims he suffered a
bruise and some swelling that lasted one week as a result of Officer Flores’s alleged use of force.
He states that TCCC officials offered to x-ray his hand, but he declined. Consistent with the
foregoing authority, the court finds that the mere allegation of a bruise and some swelling which
required no further medical treatment points to the inescapable conclusion that whatever force
Flores applied, it was not excessive.
37 Welsh also admits Flores allowed him fifteen minutes to comply with the orders given, prior to using any type of
force, thus demonstrating Flores’s additional effort to limit or avoid any use of force.
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In sum, weighing the factors set forth in Kinsley, particularly the minimal physical injury
allegedly sustained, within the context of preserving institutional order and discipline and Welsh’s
intentional resistance to the same, Welsh’s allegations fail to establish that Officer Flores’s alleged
use of force was objectively unreasonable. Accordingly, Welsh’s claim for excessive force must
be dismissed.38
2. Welsh possesses no constitutional right to have someone investigated or criminally
prosecuted.
Welsh asserts that Officer Kasting violated his constitutional rights “by refusing to press
or investigate a criminal act against plaintiff’—i.e., Officer Flores’s alleged use of force and
Welsh’s resulting injury. Am. Compl., at 39. Welsh further contends that Officers Flores,
Gonzales, Sanchez, Juarez, and John and Jane Does violated his constitutional rights by not
providing “safe conditions, protection, and ordinary care.” Id. At the evidentiary hearing, Welsh
clarified that this claim against such Defendants arose from their alleged failure to investigate
Officer Flores’s actions.
Welsh “does not have a constitutional right to have someone criminally prosecuted.”
Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Similarly, Defendants’ alleged failure to
investigate Officer Flores’s use of force “did not infringe any legally recognized right belonging
to [Welsh] . . . .” Autrey, 66 F. App’x at 523; see Robinson, 185 F. App’x at 348. Accordingly,
the court must dismiss Welsh’s claims against Officers Kasting, Flores, Gonzales, Sanchez, Juarez,
and John and Jane Does. See, e.g., Ralston, 2018 WL 7152549, at *2.
38 The court did not find consideration o
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