Mumphrey v. Owens
REPORT AND RECOMMENDATIONS that the Court GRANT Defendant's 19 Motion for Summary Judgment and DISMISS this action With Prejudice. Signed by Judge Andrew W. Austin. (klw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JOHNIFER RAY MUMPHREY #619104
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint brought pursuant to 42 U.S.C. § 1983 (Document
No.1); Defendant’s Motion for Summary Judgment (Document No. 19); and Plaintiff’s response
thereto (Document No. 21). Plaintiff, proceeding pro se, has been granted leave to proceed in forma
At the time he filed his complaint, Plaintiff was an inmate incarcerated in the Harris County
Jail. Plaintiff was subsequently transferred to the Ben Reid Correctional Facility. Plaintiff files this
action pursuant to 42 U.S.C. § 1983 alleging sex offender conditions (Condition X) were imposed
without due process upon his release to mandatory supervision for burglary of a motor vehicle.
Plaintiff sues Rissie Owens. He seeks injunctive and declaratory relief.
Defendant Owens moves for summary judgment, explaining Plaintiff was previously
convicted of sexual assault. Accordingly, she argues Plaintiff was provided all the process he was
Summary Judgment Standard
A court will, on a motion for summary judgment, render judgment if the evidence shows that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Int’l Shortstop, Inc. v.
Rally Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
When a motion for summary judgment is made and supported, an adverse party may not rest upon
mere allegations or denials but must set forth specific facts showing there is a genuine issue for trial.
Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED . R. CIV . P. 56.1
Both movants and non-movants bear burdens of proof in the summary judgment process.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). The movant with the burden of
proof at trial must establish every essential element of its claim or affirmative defense. Id. at 322,
106 S. Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the
absence of evidence on an essential element of the non-movant’s claims or affirmative defenses. Id.
at 323-24, 106 S. Ct. at 2554. At that point, the burden shifts to the non-moving party to “produce
Effective December 1, 2010, Rule 56 was amended. Although there is a slight language change
and a change in the designation of subsections, the legal standard remains the same. See FED . R. CIV .
P. 56(a) (eff. Dec.1, 2010) (“The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
evidence in support of its claims or affirmative defenses . . . designating specific facts showing that
there is a genuine issue for trial.” Id. at 324, 106 S. Ct. at 2553. The non-moving party must
produce “specific facts” showing a genuine issue for trial, not mere general allegations. Tubacex
v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
In deciding whether to grant summary judgment, the Court should view the evidence in the
light most favorable to the party opposing summary judgment and indulge all reasonable inferences
in favor of that party. The Fifth Circuit has concluded “[t]he standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational
trier of fact could find for the non-moving party based upon the evidence before the court.” James
v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita, 475 U.S. at 586, 106 S. Ct. 1356)).
To the extent facts are undisputed, a Court may resolve the case as a matter of law. Blackwell v.
Barton, 34 F.3d 298, 301 (5th Cir. 1994).
Sex Offender Conditions
Defendant Owens provides the Court with summary judgment evidence proving Plaintiff was
convicted of sexual assault in Cause No. 17-496-B in the 124th Judicial District Court of Gregg
County Texas and was sentenced to five years in prison on August 25, 1989.
In a case such as this, the standard governing due process was made clear by the Fifth Circuit
in Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010). As set forth therein, a liberty interest sufficient
to invoke the protections of due process is implicated when an offender suffers a change in the
conditions of confinement which is both stigmatizing and qualitatively different from the punishment
characteristically suffered by a person convicted of a crime. Id. at 657-58. The court made clear a
finding of stigma required an offender to be subjected to a label which was false. Id. at 658. The
Fifth Circuit recognized the sex-offender conditions imposed by Texas were qualitatively different
than other conditions attending an inmate’s release. Id. at 658. The Fifth Circuit further recognized
the conditions would cause stigma “if they were imposed on an individual who . . . had never been
convicted of a sex offense.” Id. at 659. However, the court concluded stigma could not attach to
Jennings as a result of the imposition of sex-offender conditions because the label of “sex offender”
was not false as it accurately reflected his prior conviction history, a history he had a full and fair
opportunity to contest at the time of his conviction. Id. at 659.
As in Jennings, the conclusion in this case is inescapable. The Fifth Circuit has made clear
a parolee who has been previously convicted of a sex offense may be subject to labeling as a sex
offender by Texas parole authorities without additional process being afforded. As a convicted sex
offender, Plaintiff has received all the process he is due. As such, the sex-offender label is not false,
and Plaintiff had a full and fair opportunity to contest his conviction.
Sex Offender Registration
In his response to Defendant’s Motion for Summary Judgment Plaintiff raises an additional
claim. Plaintiff contends he should not be required to register as a sex offender, because he
discharged his sentence for sexual assault on August 25, 1994.
Because Plaintiff added this claim after Defendant Owens filed her Motion for Summary
Judgment, the Court will analyze the claim pursuant to 28 U.S.C. § 1915(e). An in forma pauperis
proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the
complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks
monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or
maliciousness may occur at any time, before or after service of process and before or after the
defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972). However, the
petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no
license to harass others, clog the judicial machinery with meritless litigation and abuse already
overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
The sex offender registration program applies to reportable convictions or adjudications
occurring on or after September 1, 1970. See TEX . CRIM . PROC. CODE ANN . art. 62.002. Plaintiff
committed the offense of sexual assault and repetition of a felony on May 6, 1989. Sexual assault
is a reportable offense under article 62.001(5)(A) of the Texas Criminal Procedure Code. Therefore,
the sex offender registration law applies to him, and he is required to register for life. See TEX .
CRIM . PROC. CODE ANN . art. 62.101(a). Accordingly, Plaintiff has failed to state a valid claim for
The undersigned recommends that the District Court GRANT Defendant’s Motion for
Summary Judgment with regard to Condition X and DISMISS WITH PREJUDICE Plaintiff’s
claim regarding sex offender registration pursuant to 28 U.S.C. § 1915(e).
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within 14 days after the party is served with a copy of the Report shall bar
that party from de novo review by the district court of the proposed findings and recommendations
in the Report and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466, 472-74 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1428-29 (5th Cir. en banc, 1996).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 10th day of January, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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