Case: 19-10825 Document: 00515739018 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth 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 of Security, Texas Civil Commitment Center for Correct
Care Recovery Solutions; Amy Goldstein, Individually as Clinical
Director at Texas Civil Commitment Center for Correct Care Recovery
Solutions; Edward Towns, Individually as Clinical Director at Texas
Civil Commitment Center for Correct Care Recovery Solutions; Bill
Vanier, Individually as Captain of Security at Texas Civil Commitment
Center for 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 Spears 1 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 Heck 2-barred, 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
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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
1
Spears v. McCotter, 766 F.2d 179, 181–82 (5th Cir. 1985), abrogated on other grounds
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 (5th 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.
i.
Welsh argues that the excessive-force claim that he raised in Count 10
of his amended complaint is no longer Heck-barred. 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
3
Some courts have agreed with the magistrate judge that a reversed conviction
must be a final one to satisfy Heck. See, e.g., Michaels v. New Jersey, 955 F. Supp. 315, 324–
25 (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
Heck-barred. Welsh is correct that Heck does not bar a § 1983 action raising
claims concerning an overturned conviction. Clay v. 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, ‘Plaintiff[’s] claims are dismissed with
prejudice to their being asserted again until the Heck conditions are met.’”
Deleon v. City of Corpus 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.
ii.
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 later—
after 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)).
i.
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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ii.
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 “plac[ing]
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 Welsh’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 long as 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.
III.
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.
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 brief in 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, 832–
33 (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 Heck-
barred. 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 Heck-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 evidence-
falsification conviction has been overturned, we conclude that his false-
charges claim grounded in the November 2017 incident is not Heck-barred.
We are therefore compelled to VACATE and REMAND 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
claim.
VI.
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 if he “fails to adequately brief it.” 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 pro 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 of his 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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VIII.
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-à-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 his brief to separately dispute the magistrate
judge’s rejection of his 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 his 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.
IX.
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—a
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); Deavers 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,
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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.,
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 Brinkmann, 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 Bazrowx 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 of which 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
Welsh v. Correct Care Recovery
Combined Opinion