Hitt v. Mclane et al, No. 1:2017cv00289 - Document 52 (W.D. Tex. 2018)
Court Description: ORDER ACCEPTING IN PART and REJECTING IN PART Magistrate's 45 Report and Recommendations. ORDER DENYING as MOOT Hitt's 48 MOTION for Extension of Time to File Response. ORDER DENYING Hitt's 34 MOTION to Amend Complaint. ORDER GRANTING TCSO's 25 MOTION to Dismiss. ORDER GRANTING in PART/ DENYING in PART Thomas, TCCC, and CCRS's 11 Motion to Dismiss. ORDER GRANTING in PART/DENYING in PART McLane's 12 MOTION to Dismiss. ORDER DISMISSING without prejudice to re-filing Hitt's 43 MOTION for Partial Summary Judgment. Signed by Judge Sam Sparks. (lt)
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Hit v.Mclane tal Doc.52 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION 2O18tIAR 15 p JONATHAN HITT, Plaintiff, CAUSE NO.: AU-17-CA-00289-SS -vs- MARSHA MCLANE, in her official and individual capacities as Executive Director of the Texas Civil Commitment Office; BRIAN THOMAS, in his individual and official capacities as Facility Director of the Texas Civil Commitment Center; TRAVIS COUNTY SHERIFF'S OFFICE; TEXAS CIVIL COMMITMENT CENTER; and CORRECT CARE RECOVERY SOLUTIONS, LLC, Defendants. IOiij) I1 BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically, Defendants Brian Thomas, Texas Civil Commitment Center (TCCC), and Correct Care Recovery Solutions (CCRS)'s Motion to Dismiss for Failure to State a Claim [#11] and Plaintiff Jonathan Hitt's Response [#29] in opposition; Defendant Marsha McLane's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) [#12], Hitt's Response [#28] in opposition, and McLane's Reply [#39] in support; Defendant Travis County Sherriffs Office (TCSO)'s Motion to Dismiss Pursuant to Rules 12(b)(l) and 12(b)(6) [#25]; Plaintiff Jonathan Hitt's Motion to Amend Complaint [#34]; United States Magistrate Judge's Report and Recommendations [#45], Hitt's Motion for Extension of Time to File Objections [#48],' and Hitt's Objections [#50]; as well as Hitt's Motion for Partial Summary Judgment [#43] and Because the Court's order herein addresses Hitt's belatedly filed objections, Hitt's Motion for Extension of Time to File Objections [#48] is DISMISSED as moot. 1 I Dockets.Justia.com Defendant Marsha McLane's Response [#49] in opposition. Having reviewed the documents, the relevant law, and the case file as a whole, the Court now enters the following opinion and orders. Background Though the Magistrate Judge's report examines the factual posture of this case at length, see R. & R. [#45] at 1-10, the Court briefly relays the facts relevant to the pending motions. In July 1999, Hitt was convicted on eight counts of indecency with a child and sentenced to ten years in prison. Id. at 2. In 2009, shortly before Hitt was to be released from prison, the State of Texas filed a petition to civilly commit Hitt under the Civil Commitment of Sexually Violent Predators Act (SVP Act). Id. at 6. At the conclusion of the trial, the jury unanimously found Hitt suffers from a behavioral abnormality predisposing him to engage in predatory acts of sexual violence. Id. The trial court rendered a final judgment adjudicating Hitt to be a sexually violent predator (SVP) under the statute and issued an order of civil commitment mandating Hitt undergo outpatient treatment and supervision until his behavioral abnormality is no longer likely to cause him to engage in predatory acts of sexual violence. Id. Hitt underwent outpatient treatment from 2010 to 2015. Id. at 6-7. In 2015, Texas amended the SVP Act. Id. Whereas the SVP Act previously provided exclusively for outpatient treatment, the 2015 amendments instated a tiered treatment program providing for both inpatient and outpatient treatment. Id. The Texas Civil Commitment Office (TCCO) notified Hitt of the amendments to the SVP Act and informed him he had a right to a hearing regarding the changes to the program. Id. Hitt waived his right to a hearing and consented to enter the new, tiered treatment program. Id. Accordingly, Hitt' s order of civil commitment was amended to reflect the changes implemented by the 2015 amendments to the SVP Act. Id. Hitt was also notified that, should he be transferred to inpatient treatment, he 2 possessed a right to file a petition for release or a petition for transfer to less restrictive supervision. Id. In January 2016, Hitt's case manager discovered Hitt had been "forming a relationship with coworker Maria Lopez" which included intimate physical contact. Id. at 8. Hitt's case manager instructed him to avoid all contact with Lopez. Id. Hitt alleges that on February 1, 2016, TCCO Executive Director Marsha McLane threated to out a fair and impartial hearing). Moreover, neither the Magistrate Judge nor McLane has addressed the sufficiency of the postdeprivation procedures afforded to Bitt under state law.5 See R. & R. at 27-28; Mot. Dismiss [#15] at 12-15. See also Zinermon v. Burch, 494 U.S. 113, 126 (1990) ("[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate."). McLane's briefing also neglects to address several other potentially problematic aspects of the SVP statute complained of by McLane. For example, McLane cites no legal authority in support of the proposition the TCCO may constitutionally eschew judicial involvement and sua sponte issue emergency orders to detain civil committees. See § 841.0837(b). In fact, there is no indication in the record the TCCO ever issued the emergency order required to detain Hitt under § 841.0837(b). Mot. Dismiss [#12] at 7. The Court also notes the statutory scheme does not appear to provide for a timely post-detention hearing regarding the continued confinement of the committee but instead foists the burden to petition for a hearing upon the civil committee. See TEX. HEALTH & 11 In sum, the Court accepts in part and rejects in part the Magistrate Judge's recommendation, GRANTS McLane' s Motion to Dismiss [#12] with respect to the procedural due process claim brought against McLane in her individual capacity, and DENIES McLane's Motion to Dismiss [#12] with respect to the procedural due process claim brought against McLane in her official capacity. 3. Fourteenth Amendment Substantive Due Process Claims Hitt also objects to the Magistrate Judge's dismissal of his substantive due process claim. Specifically, Hitt argues his confinement in the TCCC violates his substantive due process rights because he has a liberty interest in outpatient treatment. Obj. [#50] at 23. However, Hitt does not explain how the alleged deprivation of this liberty interest might give rise to a substantive due process claim independent of Hitt's procedural due process claim. Id. at 23-24. Accordingly, the Court finds Hitt has failed to state a claim for relief, accepts the Magistrate Judge's recommendation, and GRANTS McLane's Motion to Dismiss [#12] with respect to Hitt's substantive due process claims. 4. Remaining Claims The Magistrate Judge recommended the Court deny McLane's motion to dismiss with respect to Hitt's remaining claims that McLane violated his First Amendment freedom of association, Fifth Amendment right against self-incrimination, and Fourth Amendment right to be free from unreasonable search. R. & R. [#45] at 34-26. Specifically, the Magistrate Judge 84 1.121-841.124; cf Whirl v. Kern, 407 F.2d 781, 792 (5th Cir. 1969) ("Failure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint."). Finally, the Court notes the statutory process for reviewing civil committees' petitions for release appears to provide judges with unbridled discretion to deny such petitions even when there is probable cause to believe the committee no longer poses a danger to the public. See TEX. HEALTH & SAFTEY CODE § 841.123(d) ("The judge is not required to deny a petition. . . if probable cause exists to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in predatory acts of sexual violence."). SAFTEY CODE § 12 stated he was "unable to make any determination" regarding McLane's entitlement to qualified immunity because "McLane failed to sufficiently address the merits" of these claims in her motion to dismiss. Id. The Court finds it was unnecessary for McLane to address the merits of these claims brought against her in her individual capacity because Hitt has failed to carry his burden of refuting McLane's entitlement to qualified immunity. Once a defendant pleads qualified immunity, the burden shifts to the plaintiff to negate the defense. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Therefore, because McLane pleaded qualified immunity in both her answer and her motion to dismiss, the burden lies with Bitt to negate McLane's entitlement to qualified immunity. Answer [#13] at 3; Mot. Dismiss [#12] at 10. Bitt has not met this burden. Specifically, Hitt has failed to show McLane personally engaged in conduct constituting a violation of a federal right or promulgated a policy leading to Bitt's confinement, and he has similarly failed to explain how McLane's conduct might have violated clearly established Heaney v. law.6 Roberts, 846 F.3d 795, 801 (5th Cir. 2017); Thompson, 709 F.2d at 283; Brown v. Montoya, 662 F.3d at 1163-64. Accordingly, the Court GRANTS McLane's Motion to Dismiss [#12] with respect to the claims brought against her in her individual capacity under the First Amendment, Fourth Amendment, and Fifth Amendment. However, because McLane has not addressed the merits of these claims in her motion to dismiss, the Court DENIES McLane's Motion to Dismiss [#12] with respect to the claims brought against McLane in her official capacity. Flitt argues McLane violated clearly established law when she "created [unconstitutional] policies, practices, and procedures. Resp. Mot. Dismiss [#28] at 14. This conclusory assertion is entitled to no weight. See Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) (holding plaintiff must plead "specific facts, not mere conclusory allegations"). 6 13 II. Motion for Partial Summary Judgment Subsequent to defendants' various motions to dismiss but prior to issuance of the report and recommendations by the Magistrate Judge, Hitt filed a motion for partial summary judgment. See Mot. Summ. J. [#43]. In light of this order accepting in part and rejecting in part the report and recommendations of the Magistrate Judge, the Court DENIES Hitt's Motion for Partial Summary Judgment [#43] without prejudice to refihing in order to allow the parties to take into account the rulings made herein. Conclusion In sum, the Court accepts in part and rejects in part the Magistrate Judge's Report and Recommendations [#45]. Following the issuance of this order, Hitt' s remaining claims are as follows: (1) federal false imprisonment claims brought against Thomas, TCCC, and CCRS; (2) a federal false imprisonment claim brought against McLane in her official capacity; (3) a Fourteenth Amendment procedural due process claim brought against McLane in her official capacity; (4) a First Amendment freedom of association claim brought against McLane in her official capacity; (5) a Fifth Amendment self-incrimination claim brought against McLane in her official capacity; and (6) a Fourth Amendment unreasonable search claim brought against McLane in her official capacity. Accordingly, IT IS ORDERED the Magistrate Judge's Report and Recommendations [#45] is ACCEPTED IN PART and REJECTED iN PART as described in this opinion; and IT IS FURTHER ORDERED Hitt's Motion for Extension of Time to File Objections [#48] is DENIED as moot; and 14 IT IS FURTHER ORDERED Hitt's Motion to Amend Complaint [#34] is DENIED; and IT IS FURTHER ORDERED TCSO's Motion to Dismiss [#25] is GRANTED; and IT IS FURTHER ORDERED Thomas, TCCC, and CCRS's Motion to Dismiss [#11] is GRANTED IN PART and DENIED iN PART as described in this opinion; and IT IS FURTHER ORDERED McLane's Motion to Dismiss [#12] is GRANTED IN PART and DENIED IN PART as described in this opinion; and IT IS FINALLY ORDERED Hitt's Motion for Partial Summary Judgment [#43] is DISMISSED without prejudice to refihing. SIGNED this the //day of March 2018. SA'1 SENIOR UNITED STATES DISTRICT JUDGE 15
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