Massey v. Owens
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Jessie Earl Massey, 13 Motion for Summary Judgment filed by Rissie Owens. (The undersigned recommends that the District Court GRANT Defendants Motion for Summary Judgment.). Signed by Judge Andrew W. Austin. (jk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JESSIE EARL MASSEY #649700
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
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) and Defendant’s Motion for Summary Judgment (Document No. 13). Plaintiff, proceeding
pro se, has been granted leave to proceed in forma pauperis.
At the time he filed his complaint, Plaintiff was an inmate incarcerated in the Ben Reid
Facility in Houston, Texas. Plaintiff files this action pursuant to 42 U.S.C. § 1983 alleging sexoffender conditions (Conditions X) were imposed without due process upon his release to parole for
a non-sexual offense.1 He seeks injunctive relief and monetary damages.
Defendant Owens moves for summary judgment, explaining Plaintiff was previously
convicted of indecency with a child. Accordingly, she argues Plaintiff was provided all the process
Plaintiff’s holding conviction was delivery of a controlled substance.
he was due. In addition, she argues she is protected by absolute, Eleventh Amendment, and qualified
immunity. She also argues Plaintiff’s complaint is time-barred.
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. 56.2
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
evidence in support of its claims or affirmative defenses . . . designating specific facts showing that
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
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).
Statute of Limitations
Defendant argues Plaintiff’s complaint is time-barred. There is no federal statute of
limitations for § 1983 actions. Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995);
Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235 (1991).
Therefore, the Supreme Court has directed federal courts to borrow the forum state’s general
personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 582
(1989). In Texas, the applicable limitations period is two years. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (citing TEX . CIV . PRAC. & REM . CODE ANN . § 16.003(a) (Vernon 1986)).
In this case, Plaintiff knew Condition X was imposed on him on November 12, 2009.
However, Plaintiff did not execute his civil rights complaint until November 22, 2011, after the
limitations period had expired. Accordingly, Plaintiff’s complaint is time-barred.
Eleventh Amendment Immunity
Being sued in her official capacity for monetary damages, Defendant is immune from suit
under the Eleventh Amendment because such an action is the same as a suit against the sovereign.
Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984). The Eleventh
Amendment generally divests federal courts of jurisdiction to entertain suits directed against states.
Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299, 304, 110 S. Ct. 1868, 1871 (1990). The Eleventh
Amendment may not be evaded by suing state agencies or state employees in their official capacity
because such an indirect pleading remains in essence a claim upon the state treasury. Green v. State
Bar of Texas, 27 F.3d 1083,1087 (1994).
However, the Eleventh Amendment does not apply to a request for a federal court to grant
prospective injunctive relief against state officials on the basis of federal claims; thus, a request for
prospective injunctive relief against state officials or employees in their official capacities falls
within an exception to Eleventh Amendment immunity. See Ex parte Young, 209 U.S. 123, 149,
28 S. Ct. 441, 449-50 (1908). In this case, Plaintiff has failed to allege a valid constitutional
Defendant Owens provides the Court with summary judgment evidence proving Plaintiff was
convicted of indecency with a child in Cause No. 17650 in the 336th Judicial District Court of
Fannin County, Texas. 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.
Defendant is also entitled to qualified immunity. The doctrine of qualified immunity affords
protection against individual liability for civil damages to officials “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). Immunity in this sense
means immunity from suit, not merely from liability. Jackson v. City of Beaumont, 958 F.2d 616
(5th Cir. 1992). “Qualified immunity is designed to shield from civil liability all but the plainly
incompetent or those who violate the law.” Brady v. Fort Bend County, 58 F.3d 173, 174 (5th Cir.
To rebut the qualified immunity defense, the plaintiff must show: (1) that he has alleged a
violation of a clearly established constitutional right, and (2) that the defendant’s conduct was
objectively unreasonable in light of clearly established law at the time of the incident. Waltman v.
Payne, 535 F.3d 342, 346 (5th Cir. 2008) (footnote omitted). To negate a defense of qualified
immunity and avoid summary judgment, the plaintiff need not present “absolute proof,” but must
offer more than “mere allegations.” Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991). As
explained above, Plaintiff has failed to allege a valid constitutional violation.
The undersigned recommends that the District Court GRANT Defendant’s Motion for
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 31st day of May, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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