Hitt v. Mclane et al

Filing 45

REPORT AND RECOMMENDATIONS re 11 Motion to Dismiss for Failure to State a Claim filed by Brian Thomas, Correct Care Recovery Solutions, LLC, Texas Civil Commitment Center, 12 Motion to Dismiss filed by Marsha McLane, 43 Motion for Partial Summary Judgment filed by Jonathan Hitt, 25 Motion to Dismiss filed by Travis County Sheriff's Office, 34 Motion to Amend Complaint filed by Jonathan Hitt. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JONATHAN HITT

§
§
V.
§
§
MARSHA McLANE as Executive Director §
of the Texas Civil Commitment Office, et al. §

A-17-CV-289-SS

INTERIM REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court are: Plaintiff’s Second Motion to Amend Complaint (Dkt. No. 34); Defendant

Travis County Sheriff’s Office’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure Rules
12(b)(1) and 12(b)(6) (Dkt. No. 25); Defendants Texas Civil Commitment Center, Correct Care
Recovery Solutions, LLC and Brian Thomas’ Motion to Dismiss under Federal Rule 12(b)(6) (Dkt.
No. 11), and Plaintiff’s Response (Dkt. No. 29); Defendant McLane’s Partial Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Dkt. No. 12) and Plaintiff’s Response (Dkt. No. 28);
and Plaintiff’s Motion for Partial Summary Judgment on Procedural Due Process Claim (Dkt. No. 43).
On October 6, 2017, the District Court referred the above-styled case to the undersigned Magistrate
Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(B), Federal Rule of Civil
Procedure 72 and Rule 1(d) of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
A.

Hitt’s Underlying Criminal Conviction
Jonathon Irving Hitt, also known as “Father Jeremiah,” was a monk at the Christ of the Hills

Monastery, a monastery affiliated with the Russian Orthodox Chruch, in Blanco County, Texas

during the late 1990's.1 S.S., a fourteen year old boy at the time of Hitt’s trial in 1999, lived at the
monastery off and on between the ages of nine and twelve. S.S.’s mother brought S.S. to the
Monastery because “[s]he felt the schooling there and the surroundings might be the answer to the
difficulties S.S. had experienced in the first and second grades of school in Houston and in a
fatherless home.” Hitt, 53 S.W.3d at701. Several months after he left the monastery in November
1997, S.S. told the Blanco County District Attorney that Hitt had raped him nine times during the
time he lived there. In July 1999, a jury found Hitt guilty of five counts of indecency with a child
by sexual contact and three counts of indecency with a child by exposure pursuant to Texas Penal
Code § 21.11. The jury assessed ten years’ imprisonment for each count of indecency by contact and
three years’ imprisonment for each count of indecency by exposure. The sentences were made to
run concurrently.
On July 26, 2001, the Third Court of Appeals of Texas affirmed the judgment. See Hitt v.
State, 53 S.W.3d 697 (Tex. App.– Austin 2001, pet. ref’d). The Texas Court of Criminal Appeals
refused Hitt’s petition for discretionary review on February 13, 2002. On his subsequent state habeas
writ, The Texas Court of Criminal Appeals denied Hitt’s application without written order on the
findings of the trial court after hearing. See Ex parte Hitt, Appl. No. 61, 415-01 at 53-63. Hitt then
filed a federal habeas writ pursuant to 28 U.S.C. § 2254, and on January 17, 2008, Judge Sparks
denied that application. See Dkt. No. 27 in Hitt v. Quarterman, A-05-CV-618 SS (W.D. Tex. Jul.
8, 2005). On June 25, 2009, the Fifth Circuit denied Hitt’s Motion for a Certificate of Appealability.
Hitt v. Quarterman, No-08-50108 (5th Cir. Jun. 22, 2009) (Dkt. No. 35).

1

The full factual description of the case can be found in the Third Court of Appeals’ opinion
in Hitt v. State, 53 S.W.3d 697 (Tex. App.– Austin 2001, pet. ref’d).
2

B.

The Texas Sexually Violent Predators Act
In 1999, the Texas Legislature enacted the Civil Commitment of Sexually Violent Predators

Act (“SVP Act”), TEX. HEALTH & SAFETY CODE ANN. § 841.001-.151, having found that:
[A] small but extremely dangerous group of sexually violent predators exists and that
those predators have a behavioral abnormality that is not amenable to traditional
mental illness treatment modalities and that makes the predators likely to engage in
repeated predatory acts of sexual violence. The legislature finds that the existing
involuntary commitment provisions of Subtitle C, Title 7, are inadequate to address
the risk of repeated predatory behavior that sexually violent predators pose to society.
The legislature further finds that treatment modalities for sexually violent predators
are different from the traditional treatment modalities for persons appropriate for
involuntary commitment under Subtitle C, Title 7. Thus, the legislature finds that a
civil commitment procedure for the long-term supervision and treatment of sexually
violent predators is necessary and in the interest of the state.
Id. at § 841.001. Under the statute, a sexually violent predator (“SVP”) is a “repeat sexually violent
offender” who “suffers from a behavioral abnormality that makes the person likely to engage in a
predatory act of sexual violence.” Id. at § 841.003(a). A “behavioral abnormality” is “a congenital
or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the
person to commit a sexually violent offense, to the extent that the person becomes a menace to the
health and safety of another person.” Id. at § 841.002(2).
The SVP Act created a multidisciplinary team to determine whether a person who is serving
a sentence for a sexually violent offense may be a repeat sexually violent offender. The Texas
Supreme Court has explained the process as follows:
The Texas Department of Criminal Justice (“TDCJ”) or the Texas Department of
Mental Health and Mental Retardation (“TDMHMR”) must notify the
multidisciplinary team of the anticipated release of a person who is serving a
sentence for a sexually violent offense (or who was committed after having been
adjudged not guilty by reason of insanity of a sexually violent offense) and who may
be a “repeat sexually violent offender.” Within sixty days of the notice, the team
must (1) determine whether the person is a repeat sexually violent offender and
3

whether the person is likely to commit another such offense after release; (2) give
notice of that determination; and (3) recommend the assessment of the person for a
behavioral abnormality.
Within sixty days of the team's recommendation, the TDCJ or the TDMHMR, as
appropriate, must engage an expert to determine whether the person suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence. If the TDCJ or the TDMHMR concludes that the person suffers from
a behavioral abnormality, the department must give notice and corresponding
documentation to the state’s attorney not later than sixty days after receiving the
team's recommendation.
If an SVP candidate is referred to the state's attorney, the attorney may file, in a
Montgomery County district court other than a family district court, a petition
alleging that the person is a sexually violent predator and stating facts sufficient to
support the allegation. The petition must be filed not later than ninety days after the
SVP candidate is referred to the state's attorney, and it must be served as soon as
practicable after filing.
Within 270 days after the petition is served, the judge must conduct a trial to
determine whether the person is an SVP. The alleged SVP has the right to an
immediate examination by an expert and to a jury trial. Additionally, the alleged SVP
is entitled to appear at the trial, present evidence, cross-examine witnesses, and view
and copy all petitions and reports in the court file. At all stages of the proceedings,
the alleged SVP is entitled to the assistance of counsel, and indigents are appointed
counsel by the court. A judge or jury then determines whether, beyond a reasonable
doubt, the person is an SVP. A jury determination must be unanimous.
If a person is adjudged an SVP, the judge must commit the person for outpatient
treatment and supervision, to begin on the date of the SVP’s release from a
correctional facility or discharge from a state hospital and to continue “until the
person's behavioral abnormality has changed to the extent that the person is no longer
likely to engage in a predatory act of sexual violence.” Before entering an order
directing an SVP’s outpatient civil commitment, the judge must impose on the SVP
“requirements necessary to ensure the SVP’s compliance with treatment and
supervision and to protect the community.” Those constraints include: requiring the
SVP to live in a particular location; prohibiting contact between the SVP and victims
or potential victims; prohibiting the SVP's use of alcohol, inhalants, or controlled
substances; requiring participation in and compliance with a particular course of
treatment; requiring the SVP to submit to tracking and refrain from tampering with
tracking equipment; prohibiting the SVP from changing residence without prior
authorization; and “any other requirements determined necessary by the judge.”
Violation of one of the commitment requirements is a third-degree felony.
4

The statute provides for biennial expert examinations and judicial review of the
committed person's status. Additionally, if the case manager determines that the
SVP’s behavioral abnormality has changed to the extent that he or she is no longer
likely to engage in a predatory act of sexual violence, the case manager must
authorize the SVP to petition for release. Finally, at any time and even absent the
case manager’s authorization, the SVP has the right to file a petition for release.
In re Commitment of Fisher, 164 S.W.3d 637, 640-2 (Tex.) (holding that the SVP statute is civil
rather than criminal in nature and that the statute is not void for vagueness) (internal citations
omitted), cert. denied, 546 U.S. 938 (2005). In passing the SVP Act, Texas became the seventh state
to enact legislation providing for the civil commitment of sexually violent predators. Id. at 642.
All but Texas have chosen to use inpatient civil commitment, which requires housing
the individuals in secure facilities like a prison. By contrast, the Texas Act requires
outpatient “commitment,” involving intensive treatment and supervision. The Texas
Act is also unique in that it imposes criminal penalties for violating the conditions
of confinement.
Id. (internal citations omitted).
In 2015, the Texas Legislature passed Senate Bill 746 which made significant changes to the
SVP Act and “brings Texas’s SVP scheme in line with similar programs that the Supreme Court has
upheld as constitutional.” Richards v. Taylor, 2015 WL 5310853 at * 2 (S.D. Tex. Sept. 11, 2015)
(citing Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700 (Senate Bill
746)). The 2015 Amendments repealed the felony penal sanctions for violating conditions imposed
by outpatient treatment providers. Id. The Amendments also changed the civil commitment
program from an outpatient program to a tiered treatment program that “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 a person’s behavior and
progress in treatment.” TEX. HEALTH & SAFETY CODE ANN. § 841.0831. The Amendment also

5

renamed the “Office of Violent Sex Offender Management” to the “Texas Civil Commitment
Office” (“TCCO”) and directed trial courts to amend the Orders of Civil Commitment for all SVP’s
that were civilly committed to conform with the legislative changes after notice and a hearing.
Senate Bill 46 at §§ 1, 40.
C.

Hitt’s Civil Commitment
On October 15, 2009, shortly before Hitt was to be released from prison, the State of Texas

filed a petition for Hitt’s civil commitment as an SVP in accordance with the statute. At the
conclusion of the trial, the jury unanimously found that Hitt “suffers from a behavioral abnormality
that predisposes him to engage in a predatory act of sexual violence.” See Final Judgment in In re
Commitment of Jonathan Irving Hitt, No. 9-10-09978 (435th Dist. Ct., Montgomery County, Tex.
Apr. 1, 2010), Ex. A to Dkt. No. 3. On April 1, 2010, the trial court rendered a final judgment
adjudicating Hitt to be an SVP under § 841.003 and civilly committing him “for outpatient treatment
and supervision . . . until the behavioral abnormality . . . is no longer likely to engage in a predatory
act of sexual violence and is released from commitment. . . .” Id. The Order of Commitment
imposed certain requirements to ensure that Hitt “complies with treatment and supervision and to
protect the community,” including surrendering himself and reporting to a halfway house facility,
not contacting any victims or potential victims, submitting to GPS monitoring, avoiding alcohol and
drugs, participating in and complying with the specific course of treatment provided by the Council
on Sex Offender Treatment and complying with all written requirements of the Council and case
manager, not changing his residence or leaving the state without written authorization from the court,
establishing a child safety zone such that he avoids participating in any activity that provides athletic,
civil or cultural affairs to persons 17 years of age or younger and not being within 1,000 feet of a
6

perimeter where children gather, and notifying the case manager regarding a change in job or health
status. Ex. B to Dkt. No. 3. The Beaumont Court of Appeals affirmed the trial court’s judgment and
Hitt’s civil commitment. See In re Commitment of Jonathan Irving Hitt, 2011 WL 5988024 (Tex.
App.– Beaumont, Dec. 1, 2011, pet. denied). Hitt’s petition for review was denied on December 14,
2012. After his civil commitment, Hitt was transported to the Travis County Correctional Complex
in Del Valle, Texas and then ultimately to a halfway house in Austin, Texas, where he was placed
in an outpatient treatment program. In March 2013, Hitt began working at Cobal Food Service, LLC.
On July 2, 2015, the TCCO notified Hitt of the Amendments to the SVP Act and the specific
change of the civil commitment program from an outpatient program to a tiered treatment program.
Ex. A-10 to Dkt. No. 12. The notification also informed Hitt that he had a right to a hearing in the
435th District Court in Montgomery County or he could choose to waive the hearing and sign the
Consent to Tiered Treatment Form and return it to his case manager. The notification informed Hitt
that his transition to the new program would begin immediately after the hearing or TCCO’s receipt
of the signed consent. Hitt chose to waive the hearing and sign the Consent to Tiered Treatment.
Ex. A-13 to Dkt. No. 12. Accordingly, on July 3, 2015, the State of Texas filed an agreed motion
to transfer Hitt to the tiered program noting that Hitt “will receive increased treatment and
supervision in the tiered program which may assist him in resolving his behavioral abnormality such
that he becomes no longer likely to engage in predatory acts of sexual violence.” Exh. A-2 to Dkt.
No. 12. On September 14, 2015, the trial court granted the agreed motion and issued an Amended
Order of Civil Commitment. The order required Hitt to reside where instructed by the TCCO, to
submit to GPS tracking, to not leave the state without written authorization from TCCO, to
participate in and comply with the TCCO sex offender treatment program, and to “comply with all
7

requirements and rules imposed by the TCCO.” Exh. C to Dkt. No. 3. The Order also notified Hitt
that failure to comply with the requirements may result in a third degree felony. Hitt was also
notified that he had the right to file a petition for release pursuant to § 841.122, a petition for transfer
to less restrictive supervision pursuant to § 841.0834 and a petition for review of transfer to more
restrictive supervision pursuant to § 841.0834(d). Id.
Although Hitt was moved to the tiered treatment program in September 2015, for the
remainder of 2015 his residence and job remained the same as it had been prior to the change. This
changed in January 2016, when Hitt’s case manager noted in her monthly supervision progress report
that she had discovered that Hitt was “forming a relationship” with co-worker Maria Lopez and that
“[t]here has been physical contact, such as holding hands, kissing, and hugging.” Dkt. No. 3 at 40.
The case manager further noted that Ms. Lopez had not been approved to be a chaperone through
TCCO. Id. Hitt had been previously directed to avoid any contact with Ms. Lopez’ teenage
daughter. Id. at 43. On January 25, 2016, Hitt’s case manager informed him that he could not have
sexual contact with Ms. Lopez without her permission and on January 26, 2016, he was informed
to avoid all contact with Ms. Lopez. Id. at 44. On February 1, 2016, Hitt alleges that Executive
Director of TCCO, Marsha McLane threatened to send him to the Texas Civil Commitment Center
for having a secret relationship. Id. On February 12, 2016, Hitt was given a polygraph examination
to determine whether he had been sexually involved with Ms. Lopez. Id. After failing the polygraph
examination, Hitt was taken to the Travis County Correctional Complex, pending transport to the
Texas Civil Commitment Center (“TCCC”) in Littlefield, Texas. On February 15, 2016, Hitt was
transported to the TCCC for in-patient sex-offender treatment at Supervision Tier Level 4.

8

D.

Instant Lawsuit
On April 5, 2017, proceeding pro se, Hitt filed the instant civil rights lawsuit under 42 U.S.C.

§ 1983 against Defendants Marsha McLane in her official and individual capacity as Executive
Director for the TCCO, Brian Thomas in his individual capacity as Facility Director of the TCCC,
the TCCC, the TCCO, Correct Care Recovery Solutions (“CCRS”) and Travis County Sheriff’s
Office (“TCSO”). See Dkt. No. 3, First Amended Complaint (“FAC”).2 Hitt generally alleges that
his constitutional rights have been violated through the “implementation of an inadequate and
unconstitutional sex offender treatment program, while in total confinement.” Dkt. No. 28 at 14. Hitt
contends that Defendants have substantially restricted “all of Plaintiff’s liberty interests and subject
him to punishment under the auspices of the civil commitment statutes” and that he has been
deprived of his civil rights without due process of law. Id. at p. 6. Hitt also challenges the SVP Act
as revised by Senate Bill 746 as unconstitutional as applied.3 Finally, Hitt alleges that Defendants
violated his Texas State Constitutional right to be free from unlawful confinement and that he was
provided inadequate sex offender treatment as required by Chapter 841 of the Health & Safety Code.
Hitt seeks unspecified compensatory and punitive damages, as well as prospective injunctive and
declaratory relief.
Defendants TCCC, CCRS and Brian Thomas have filed a Motion to Dismiss for failure to
state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6)

2

Hitt has not filed a petition for release, a petition for transfer to less restrictive supervision,
or a petition seeking review of the order transferring him to Tier Level 4, though he has a right to
do so under the 2015 amendments to the SVP Act.
3

Hitt clarified in his Response that he is not alleging that the SVP Act is unconstitutional on
its face. Dkt. No. 28 at 27.
9

(Dkt. No. 11). Defendant Travis County Sheriff’s Office has also filed a Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state
a claim upon which relief could be granted (Dkt. No. 25). Defendant Marsha McLane has also filed
a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of
jurisdiction and failure to state a claim upon which relief could be granted (Dkt. No. 12). Hitt has
filed responses to all of the Motions to Dismiss and has also filed a Second Motion to Amend his
Complaint (Dkt. No. 34) and a Motion for Partial Summary Judgment (Dkt. No. 43).
II. STANDARDS OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction tests the
court’s statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc.
v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). In ruling on a Rule 12(b)(1)
motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be
true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by
undisputed facts and by the court's resolution of disputed facts. Den Norske Stats Oljeselskap As v.
HeereMac Yof, 241 F.3d 420, 424 (5th Cir. 2001), cert. denied, 534 U.S. 1127 (2002).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as true, viewing them
in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). The
10

Supreme Court has explained that a complaint must contain sufficient factual matter “to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
[nonmovant] pleads factual content that allows the court to draw the reasonable inference that the
[movant] is liable for the misconduct alleged.” Id. The court’s review is limited to the complaint,
any documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). When the motion to dismiss raises the defense of
qualified immunity, the plaintiff “must plead specific facts that both allow the court to draw the
reasonable inference that the defendant is liable for the harm ... alleged and that defeat a qualified
immunity defense with equal specificity.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)
(quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).
When a Rule 12(b)(1) motion is filed with other Rule 12 motions, the court should address
the jurisdictional attack before addressing any attack on the merits. See Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 578 (1999) ( “Customarily, a federal court first resolves doubts about its
jurisdiction over the subject matter. . . .”).
III. ANALYSIS
Hitt has brought this lawsuit under 42 U.S.C. § 1983. “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting under color of
state law. ” West v. Atkins, 487 U.S. 42, 48 (1988) (citation omitted). Claims under § 1983 may be
brought against a governmental entity or against state or local officials in their individual or official
11

capacity. Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009), cert. denied, 558 U.S. 1148
(2010). In Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court clarified the distinctions
between individual and official capacity lawsuits under § 1983:
Personal-capacity suits seek to impose personal liability upon a government official
for actions he takes under color of state law. Official-capacity suits, in contrast,
“generally represent only another way of pleading an action against an entity of
which an officer is an agent.” As long as the government entity receives notice and
an opportunity to respond, an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity. It is not a suit against the official personally,
for the real party in interest is the entity. Thus, while an award of damages against an
official in his personal capacity can be executed only against the official’s personal
assets, a plaintiff seeking to recover on a damages judgment in an official-capacity
suit must look to the government entity itself.
On the merits, to establish personal liability in a § 1983 action, it is enough to show
that the official, acting under color of state law, caused the deprivation of a federal
right. More is required in an official-capacity action, however, for a governmental
entity is liable under § 1983 only when the entity itself is a “‘moving force’” behind
the deprivation; thus, in an official-capacity suit the entity’s “policy or custom” must
have played a part in the violation of federal law. When it comes to defenses to
liability, an official in a personal-capacity action may, depending on his position, be
able to assert personal immunity defenses, such as objectively reasonable reliance on
existing law [i.e., qualified immunity]. In an official-capacity action, these defenses
are unavailable. The only immunities that can be claimed in an official-capacity
action are forms of sovereign immunity that the entity, qua entity, may possess, such
as the Eleventh Amendment. While not exhaustive, this list illustrates the basic
distinction between personal- and official-capacity actions.
Id. at 165-167 (emphasis in original and internal citations omitted).
A.

Defendant Travis County Sheriff’s Office’s Motion to Dismiss
Hitt alleges that Defendant TCSO unlawfully arrested and imprisoned him in violation of the

Fourth Amendment. TCSO moves to dismiss Hitt’s claims pursuant to Rules 12(b)(1) and 12(b)(6)
because (1) it is a non-jural entity and (2) Hitt has failed to state a claim up on which relief could be
granted against TCSO. Hitt did not file a Response to the Motion. However, in his Second Motion

12

to Amend Complaint, Hitt acknowledges that TCSO is not a proper party and drops TCSO as a
Defendant in this case. Because Hitt failed to respond to the Motion and has conceded that TCSO
is not a proper party, TCSO’s Motion to Dismiss (Dkt. No. 25) should be GRANTED.
B.

Hitt’s Second Motion to Amend Complaint
A party may amend its pleading once as a matter of course within 21 days after serving it.

FED. R. CIV. P. 15(a)(1)(A). In all other cases a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. FED. R. CIV. P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id. Determining when justice requires permission to amend rests
within the discretion of the court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971); Nilson v. City of Moss Point, Miss., 621 F.2d 117, 112 (5th Cir. 1980). The court need not
grant leave to amend if the amendment would be futile. Central Laborer’s Pension Fund v.
Integrated Elec. Svcs. Inc., 497 F.3d 546, 556 (5th Cir. 2007) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)).
Analyzing Hitt’s motion within this context, it is clear that his amendment would be futile.
Hitt’s proposed Second Amended Complaint merely reiterates the exact same allegations as his First
Amended Complaint, but seeks to add the Travis County Commissioner’s Court and Former Sheriff
Greg Hamilton as Defendants in the case. This is an attempt by Hitt to remedy his naming of the
Travis County Sheriff’s Office—an entity incapable of being sued—by replacing it with a proper
party. To begin, if Hitt is seeking to sue the entity that operated the Travis County Correctional
Complex, the correct defendant to name would either be Travis County itself, or the Travis County
Sheriff in her official capacity. Neither the Commissioner’s Court nor the former Sheriff are a
proper party. Further, the only involvement Travis County had in this case was when Hitt was
13

ordered to be taken into custody by McLane in January 2016, he was briefly housed in the Travis
County Correctional Complex prior to being transported to Littlefield, Texas for inpatient treatment.
The proposed amended complaint does not allege any facts as to how this would make Travis County
or any of its officials liable for the actions taken by McLane or the TCCO. Instead, the proposed
Second Amended Complaint makes only conclusory allegations to support a claim against the
County under § 1983. Finally, to the extent he is trying to state a false imprisonment claim against
the County, as discussed below, that claim would fail a matter of law. In sum, because any addition
of a proper Travis County official would be futile, Hitt’s Second Motion to Amend Complaint (Dkt.
No. 34) should be DENIED.
C.

Defendants TCCC, CCRS and Brian Thomas’s Motion to Dismiss
Hitt alleges that Defendants TCCC and Brian Thomas, Facility Director of TCCC, “imposes

[sic] and enforces [sic] rules and living conditions that substantially restrict all of Plaintiff’s liberty
interests and subject him to punishment under the auspices of the civil commitment statutes.” FAC
at ¶ 24. Hitt further alleges “CCRS and the TCCC deprives [sic] Plaintiff of his civil rights without
due process of law, violate his privacy, deny him free speech, deny him the right to associate, and
unlawfully confines [sic] him.” Id. He alleges that “[t]he above actions do not comport with First,
Fourth, Fifth or Fourteenth Amendments to the United States Constitution.” Id. Hitt also alleges
that these defendants violated his state constitutional right to be free from unlawful confinement or
false imprisonment.
Defendants move to dismiss Hitt’s claims under Federal Rule of Civil Procedure 12(b)(6)
arguing that he has only made conclusory allegations against them that are insufficient to state a
claim for relief under 42 U.S.C. § 1983. The Court agrees.
14

1.

Defendants CCRS and TCCC

Defendant CCRS is a private entity which operates TCCC and oversees the sex offender
treatment at the facility. Although private entities are generally not liable under § 1983 since they
are not state actors, the Supreme Court has held that “[t]o act ‘under color’ of law does not require
that the accused be an officer of the state.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)
(internal quotation marks and citation omitted). Under the Supreme Court’s “public function” test,
a private entity acts under color of state law “when that entity performs a function which is
traditionally the exclusive province of the state.” Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.
1989). The Supreme Court has explained that “when private individuals or groups are endowed by
the State with powers or functions governmental in nature, they become agencies or instrumentalities
of the State and subject to its constitutional limitations.” Evans v. Newton, 382 U.S. 296, 299
(1966). Thus, in Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003),
the Fifth Circuit held that “private prison-management corporations and their employees may be sued
under § 1983 by a prisoner who has suffered a constitutional injury.” Because CCRS has contracted
with the State of Texas to provide medical treatment for the SVP’s at TCCC, it qualifies as a state
actor under § 1983. See Stone v. Gusman, 2017 WL 3037632 at * 2 (E.D. La. June 21, 2017) (“As
an initial matter, the Court notes that Correct Care qualifies as a state actor under § 1983 despite the
fact that it is a private entity.”).
Although CCRS may be considered a state actor under § 1983, Hitt’s claims against it should
nevertheless be dismissed because Hitt has failed to allege sufficient facts to show that CCRS or
TCCC violated his constitutional rights. Hitt alleges that CCRS and TCCC violated his First,
Fourth, Fifth and Fourteenth Amendment rights, but provides no additional facts to support those

15

claims. See FAC at ¶ 24. Hitt elaborates in his response brief that “two officers in Correct Care
Recovery Solution uniforms picked him up form the Travis County Jail, in a prison like van, and
transported him to the Texas Civil Commitment Center” which he contends constitutes false
imprisonment. Dkt. No. 29 at 3.
Like a governmental entity, a private entity sued under § 1983 cannot be liable for the alleged
actions of its employees based on a theory of respondeat superior. Olivas v. CCA, 215 F. App’x
332, 333 (5th Cir. 2007) (“Contrary to Olivas’s argument, CCA may not be held liable on a theory
of respondeat superior.”) (citing Monell v. New York Dep’t. of Social Serv., 436 U.S. 658, 691
(1978)); Guillory v. Transwood Carriers, 2013 WL 1759279, at *2 (N.D. Tex. Apr. 24, 2013).
(“Although Monell stated this rule in the context of municipal government liability, a substantial
majority of lower courts—and each circuit to address the issue—have found that Monell is equally
applicable to private entities that have been sued under § 1983.”). A private corporation such as
CCRS may only be held liable for a constitutional violation if the violation is the result of official
policy or custom on the part of the entity or corporation. Guillory, 2013 WL 1759279, at *2. An
official policy may be a policy statement, ordinance, regulation, or decision that has been officially
adopted and promulgated by a policymaker. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.
1984). A policy may also arise from a “persistent, widespread practice of city officials or employees,
which, although not authorized by officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy.” Id. Finally, a policy or
custom may be considered to exist where the need to take some action is so obvious, and the
inadequacy of existing training so likely to result in the violation of constitutional rights, that a

16

municipality’s failure to train its employees demonstrates a “deliberate indifference” to the rights of
citizens. City of Canton v. Harris, 489 U.S. 378, 389–90 (1989).
Hitt’s First Amended Complaint fails to identify any policy or custom of CCRS or TCCC that
was the moving force behind the alleged constitutional violations. In his Response brief, Hitt
concedes that he has failed to identify a policy or custom. Dkt. No. 29 at 4 (“The Defendants within
their Motion To Dismiss offers that Plaintiff have not alleged a rule, policy, practice, or procedure
to substantiate such an allegation that Plaintiff was unlawfully confined/false imprisonment. Plaintiff
contends that it was incumbent upon the Defendants to know or ascertain information, as to whether
Hitt could be lawfully transported and lawfully placed within the TCCC.”). As a result, Hitt has
failed to state a claim upon which relief may be granted against CCRS and TCCC.
Moreover, even if Hitt had identified a policy or custom, his § 1983 claim would nevertheless
fail because he has failed to allege an underlying constitutional violation. See West, 487 U.S. at 48
(“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution. . . .”). Hitt’s response brief clarifies that his allegations against CRRS and TCCC stem
from his claim that he was the victim of “false imprisonment.” In order to prevail on a § 1983 false
arrest/false imprisonment claim, a plaintiff must show that the defendant “did not have probable
cause to arrest him.” Haggerty v. Texas Southern Univ., 391 F.3d 653, 655 (5th Cir. 2004).
“Probable cause exists ‘when the totality of the facts and circumstances within a police officer’s
knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect
had committed or was committing an offense.’” Id. (quoting Glenn v. City of Tyler, 242 F.3d 307,
313 (5th Cir. 2001)). Hitt’s false imprisonment claim fails because the officers who took Hitt into
custody had probable cause to arrest him based on the Final Judgment and Order of Commitment

17

issued by the state court pursuant to the SVA Act. Accordingly, Hitt has failed to allege a § 1983
claim for false imprisonment against CCRS and TCCC.
Hitt’s state law claim for false imprisonment also fails. To state a claim for false
imprisonment under Texas law, the plaintiff must show (1) willful detention, (2) without consent,
and (3) without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.
2002). Hitt cannot meet the essential elements of a false imprisonment claim because he has failed
to show that he was imprisoned without authority of law since he was taken into custody pursuant
to a Final Judgment and Order of Commitment issued pursuant to Texas law. See Bohannan v.
Griffin, 2016 WL 3647625, at *14 (N.D. Tex. June 30, 2016), aff’d, 689 F. App’x 377 (5th Cir.
2017) (holding that plaintiff could not show civil commitment was false imprisonment since it was
a lawful civil commitment pursuant to a final judgment and order of commitment). Accordingly,
Hitt’s state law claim against CCRS and TCCC must also be dismissed.
2.

Defendant Thomas

Like his claims against CCRS and TCCC, Hitt alleges—without any facts to support the
claim—that Defendant Thomas “has a policy, practice, and procedure that allows for the unlawful
confinement or false imprisonment of a citizen, without authorization from the judiciary or the Texas
Legislature.” First Amended Complaint at ¶ 65. As explained above, Hitt has failed to allege
sufficient facts to show that Defendant Thomas violated his constitutional rights.

Hitt’s

constitutional false imprisonment claim fails because he has not alleged—indeed cannot allege—that
he was imprisoned “without authority of law” since he was taken into custody pursuant to the Final
Judgment and Order of Commitment. Hitt has failed to allege a viable claim against Thomas and

18

Thomas should be dismissed from this lawsuit. See West, 487 U.S. at 48 (“To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by the Constitution . . . .”).
E.

Defendant McLane’s Motion to Dismiss
Hitt brings his § 1983 lawsuit against the Executive Director of the TCCO, Marsha McLane

in her official and individual capacities. Specifically, Hitt alleges that McLane violated his
(1) Fourth Amendment and state constitutional right to be free from unlawful arrest/ imprisonment;
(2) procedural due process rights under the Fourteenth Amendment by removing him from the
outpatient treatment program and placing him in total confinement at the TCCC; (3) substantive due
process rights by placing him in total confinement and denying him his right to constitutionally
adequate sex offender treatment; (4) substantive due process rights by requiring him to pay for GPS
monitoring and a portion of his housing and treatment costs; (5) First Amendment right to associate
and to engage in a consensual relationship with a person of his choosing; (6) Fifth Amendment right
against self-incrimination by confining him at the TCCC after forcing him to take a polygraph
examination; and (7) Fourth Amendment right to be free from illegal searches of his property. Hitt
also argues that the 2015 Amendments to the SVP Act are unconstitutional.4
Although Defendant McLane entitled her Motion to Dismiss as a “Partial Motion to
Dismiss,” she contends that she is moving to dismiss all of Hitt’s claims in this lawsuit. See Dkt.
No. 39 at 1-3. McLane argues that Hitt’s lawsuit should be dismissed for lack of standing, lack of

4

Although Hitt’s First Amended Complaint alleges that he was denied his right to vote and
right to access to the courts, Hitt fails to address these claims in his Response. Accordingly, Hitt has
abandoned such claims. See Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (claim
abandoned when not defended in response to motion to dismiss).
19

subject matter jurisdiction, Eleventh Amendment immunity, failure to state a claim upon which relief
can be granted and qualified immunity.
1.

McLane’s Jurisdictional Arguments
a.

Standing

McLane argues that this lawsuit should be dismissed because Hitt has failed to show that he
has standing to bring this lawsuit. McLane seems to argue that because Hitt is no longer an
outpatient in the tiered treatment program, he lacks standing to bring any of his constitutional claims
in this case. This is erroneous. Article III provides that the judicial power of the federal courts
extends only to “Cases” and “Controversies,” U.S. Const. art. III, § 2, and standing is an “essential
and unchanging part of [this] requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). To establish standing, a claimant must present (1) an actual or imminent injury that is
concrete and particularized, (2) fairly traceable to the defendant's conduct, and (3) redressable by a
judgment in the plaintiffs favor. Id. at 560-61. Hitt has clearly met this standard. The fact that Hitt
is no longer considered an outpatient does not mean that he has no standing to allege a violation of
a constitutional right. McLane’s standing argument is entirely baseless.
b.

Eleventh Amendment5

McLane next argues that Hitt’s claims for monetary damages against her in her official
capacity as the Executive Director of TCCO are barred by the Eleventh Amendment. The Court
agrees. The Eleventh Amendment provides:

5

This section only addresses Hitt’s claims against McLane in her official capacity. The
Eleventh Amendment does not apply to Hitt’s claims against her in her individual capacity because
“the Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal
liability’ on state officials under § 1983.” Hafer, 502 U.S. at 30-31. However, McLane may be
protected from these claims under the doctrine of qualified immunity, discussed below.
20

The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. CONST. Amend. XI. The Eleventh Amendment “confirm[s] the structural understanding that
States entered the Union with their sovereign immunity intact, unlimited by Article III’s
jurisdictional grant.” Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247, 253
(2011). The Supreme Court has consistently held that “States have retained their traditional
immunity from suit, ‘except as altered by the plan of the Convention or certain constitutional
amendments.’” Id. (quoting Alden v. Maine, 527 U.S. 706, 713 (1999)). A State may waive its
Eleventh Amendment immunity, and in some circumstances Congress may abrogate it by appropriate
legislation. Id. at 253-4. “But absent waiver or valid abrogation, federal courts may not entertain
a private person’s suit against a State.” Id. at 254. See also Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit in
which the State or one of its agencies or departments is named as the defendant is proscribed by the
Eleventh Amendment.”).
As noted earlier, when a state officer is sued in their official capacity, the “suit is, in all
respects other than name, to be treated as a suit against the entity. It is not a suit against the official
personally, for the real party in interest is the entity.” Graham, 473 U.S. at 165. The TCCO is a
state agency. TEX. HEALTH & SAFETY CODE § 841.007; King v. 435th Dist. Court, 2017 WL
3687351, at *2 (E.D. Tex. Aug. 4, 2017). Thus, the suit against McClane in her official capacity is
a suit against the TCCO, an agency of the State of Texas. It is therefore barred by the Eleventh
Amendment. Pennhurst, 465 U.S. at 101 (“The Eleventh Amendment bars a suit against state
officials when ‘the state is the real, substantial party in interest.’”) (quoting Ford Motor Co. v. Dep’t

21

of Treasury, 323 U.S. 459, 464 (1945)). Accordingly, Hitt’s § 1983 claims for damages against
McLane in her official capacity are barred.
The case is different with regard to Hitt’s claims against McLane in her official capacity for
prospective injunctive relief. See Ex parte Young, 209 U.S. 123, 149 (1908). The Ex Parte Young
exception “strips the individual state actor of immunity and allows a private citizen to sue that
individual in federal court for prospective injunctive relief based on allegations that the actor
violated federal law.” McKinley v. Abbott, 643 F.3d 403, 406 (5th Cir.), cert. denied, 565 U.S. 1079
(2011). Accordingly, Hitt’s federal constitutional claims against McLane seeking prospective
injunctive relief are not barred by the Eleventh Amendment.6
c.

Rooker-Feldman Doctrine

McLane argues that the Rooker-Feldman doctrine deprives this Court of subject matter
jurisdiction over Hitt’s claims because he is attempting to collaterally attack the state court’s civil
commitment judgment. She argues that “Hitt’s claims are ‘inextricably intertwined’ with [the
commitment order], in that they are essentially challenges to the court’s orders regarding the validity
of the conditions of supervision imposed by the state court judge as mandated by Texas law.” Dkt.
No. 12 at p. 17.

6

“[S]ince state law claims do not implicate federal rights or federal supremacy concerns, the
Young exception does not apply to state law claims brought against the state.” McKinley, 643 F.3d
at 406. Accordingly, Hitt’s state law claims against Defendant McLane in her official capacity are
barred regardless of the relief he is seeking. See Richards v. Office of Violent Sex Offender Mgmt.,
2015 WL 1470355, *2 (S.D. Tex. March 31, 2015). Thus, Hitt’s state constitutional claims and
claims under Chapter 841 of the Texas Health & Safety Code against McLane are barred. See Id.
(dismissing § 841.007 claim for lack of subject matter jurisdiction).
22

“[T]he Rooker-Feldman7 doctrine dictates that federal district courts lack subject matter
jurisdiction over lawsuits that effectively seek to ‘overturn’ a state court ruling.” Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005). Under the doctrine, federal courts may not
hear “cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil, at 284. In order to determine if the doctrine applies,
courts look to the source of the plaintiff’s alleged injury and what the federal court is being asked
to review and reject. Brown v. Taylor, 677 F. App’x 924, 927 (2017). “Review is barred if a claim
‘asserts as a legal wrong an allegedly erroneous decision by a state court’ and requires the court to
review and reject the state court’s decision.” Id. (quoting Truong v. Bank of Am., N.A., 717 F.3d
377, 381 (5th Cir. 2013)). Claims “inextricably intertwined” with a state court judgment may also
be barred, but only when they “invite a federal district court to ‘sit in direct review of state court
decisions’ by asserting constitutional claims that the state court had not directly addressed.” Id. at
384-85 (quoting Exxon Mobil, 544 U.S. at 286 n.1).
The Rooker-Feldman doctrine has little or no applicability to this case. While Hitt cannot
challenge the state court’s Order of Commitment and Amended Order of Commitment, that does not
mean he may not challenge the implementation or the details of his treatment program. So while Hitt
cannot challenge the commitment orders, the Court does not read his suit as attempting to do so.8

7

The doctrine gets its name from two Supreme Court decisions: Rooker v. Fid. Tr. Co., 263
U.S. 413 (1923); and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
8

Hitt’s Order of Commitment specifically ordered that “Hitt is required to submit to tracking
under a global positioning satellite (GPS) monitor or other monitoring system provided.” Exh. B to
Dkt. No. 3. See also, Amended Order of Civil Commitment (“Hitt is required to submit to tracking
under a particular type of tracking service and to any appropriate supervision”). Exh. C to Dkt. No.
23

Instead, he challenges the conditions of confinement imposed by McLane, and the process used to
impose those. “Rooker-Feldman does not prevent review of such discretionary executive action
taken in enforcing state court judgments.” Brown, 677 F. App’x at 927. Because the Court is not
being called upon to review the state court’s commitment orders the Rooker-Feldman doctrine does
not bar Hitt’s claims. Id. (Rooker-Feldman civilly committed plaintiff’s lawsuit challenging
conditions of confinement); Richards, 2015 WL 1470355 at * 3 (plaintiff’s claims challenging the
implementation and enforcement of civil commitment order not barred by Rooker-Feldman).
d.

Heck v. Humphrey

McLane also argues that Hitt’s claims are barred under Heck v. Humphrey, 512 U.S. 477
(1994). In Heck, the Supreme Court held that a district court must generally dismiss a prisoner’s
complaint brought pursuant to 42 U.S.C. § 1983, if success in the civil rights action would
necessarily imply the invalidity of the plaintiff’s conviction or sentence. Id. at 2372. The Heck
doctrine is inapplicable, however, when a § 1983 action does not implicate the validity of a
conviction or the duration of confinement. Muhammad v. Close, 540 U.S. 749, 751–52, 754–55
(2004). Thus, even assuming that Heck applies in this case, the Heck rule does not bar Hitt’s lawsuit
because success on the merits of his claims would not invalidate his civil commitment. See
Richards, 2015 WL 1470355 at *3 n.17 (“Assuming, arguendo, that Heck applies to Plaintiff’s civil
commitment, the Heck rule does not bar Plaintiff's claim for essentially the same reasons that the

3. Thus, any challenge to the state court’s specific order that he be subject to GPS monitoring would
be barred under the Rooker-Feldman doctrine. However, Hitt may challenge the fact that McLane
violated his rights by imposing the costs of GPS tracking on him. See Brown, 677 F. App’x at 928
(holding that challenge to imposing costs of GPS monitoring on plaintiff was not barred by RookerFeldman since commitment order did not mention the costs of GPS tracking).
24

Rooker–Feldman doctrine is inapplicable: success on the merits of Plaintiff's claim would not
necessarily invalidate his civil commitment.”).
2.

McLane’s Non-Jurisdictional Arguments

Hitt alleges seven constitutional claims against McLane, asserting that she violated his:
(1)

Fourth Amendment and state constitutional right to be free from unlawful arrest and
imprisonment;

(2)

Procedural Due Process rights under the Fourteenth Amendment by removing him
from the outpatient treatment program and sending him to the TCCC;

(3)

Substantive Due Process rights by removing him from outpatient treatment and
placing him in total confinement;

(4)

Substantive Due Process rights by requiring him to pay for GPS monitoring and a
portion of his housing and treatment;

(5)

First Amendment right to associate and to engage in a consensual relationship with
a person of his choosing;

(6)

Fifth Amendment right against self-incrimination by confining him at the TCCC after
forcing him to take a polygraph examination; and

(7)

Fourth Amendment right to be free from illegal searches of his property.

Hitt also alleges that newly enacted amendments to Chapter 841 are unconstitutional as applied to
him. Hitt brings these claims against McLane in her official and individual capacities. As already
noted, the only claim Hitt may make against McLane in her official capacity must be one for
prospective injunctive relief. And to state a claim against McLane in her individual capacity, Hitt
must show that while acting under color of state law, McClane caused the deprivation of his
constitutional rights, and she is not entitled to qualified immunity. Regardless of whether Hitt is
alleging a claim against McLane in her individual or official capacity, he must “allege the violation
of a right secured by the Constitution.” West, 487 U.S. at 48.

25

a.

False Imprisonment

As discussed above with regard to Defendants TCCO, CCRS and Brian Thomas, Hitt has
failed to allege a viable false imprisonment claim under state or federal law because he cannot show
he was imprisoned “without authority of law” since he was taken into custody consistent with a
judgment and commitment order adopted pursuant to Texas law. Accordingly, Hitt’s unlawful
arrest/imprisonment claim against McLane must be dismissed.
b.

Procedural Due Process

Hitt argues that McLane denied him his procedural due process rights under the Fourteenth
Amendment by removing him from the outpatient treatment program and placing him in total
confinement at the TCCC. McClane contends Hitt fails to plead facts showing a plausible violation
of his procedural due process rights. Procedural due process imposes constraints on governmental
decisions which deprive individuals of “liberty” or “property” interests within the meaning of the
Due Process Clause of the Fifth or Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319,
348-49 (1976). The touchstone of procedural due process is “the requirement that ‘a person in
jeopardy of serious loss be given notice of the case against him and opportunity to meet it,” because
“[t]he right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle
basic to our society.” Id. at 348, 333 (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123,
171-72 (1951) (Frankfurter, J., concurring). To comport with due process, the notice must
reasonably convey the required information, and “must be granted at a meaningful time and in a
meaningful manner.” Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (quoting Fuentes v. Shevin, 407
U.S. 67, 80 (1972)) (quotation marks omitted).

26

Hitt has failed to plead any facts which would establish that the procedures utilized in this
case before he was sent to TCCC were constitutionally insufficient. First, Hitt waived any objection
or right to process with regard to the amendment of his order of commitment, subjecting him to the
new supervision scheme. On July 2, 2015, the TCCO notified Hitt of the Amendments to the SVP
Act and the specific change of the civil commitment program from an outpatient program to a tiered
treatment program, which included inpatient, or confined, treatment. Ex. A-10 to Dkt. No. 12. The
notification also informed Hitt that he had a right to a hearing in the 435th District Court in
Montgomery County or he could choose to waive the hearing and sign the Consent to Tiered
Treatment Form and return it to his case manager. The notification informed Hitt that his transition
to the new program would begin immediately after the hearing or TCCO’s receipt of the signed
consent. Hitt chose to waive the hearing and sign the Consent to Tiered Treatment. Ex. A-13 to Dkt.
No. 12. Accordingly, on July 3, 2015, the State of Texas filed an agreed motion to transfer Hitt to
the tiered program. Exh. A-2 to Dkt. No. 12. On September 14, 2015, the trial court granted the
agreed motion and issued an Amended Order of Civil Commitment making him subject to the tiered
system created by the amendments to the commitment statutes. Thus, the move of Hitt from the old
to the new commitment programs plainly comported with due process.
The notice also informed Hitt that under the new program, “TCCO will have the authority
to promote or demote clients within the tiers, including a move to a private residence, without court
approval; however, clients are permitted to petition the court to review the decision.” Id. at Ex. A10. As noted, the statute grants a committed offender the right to file a petition for release
(§ 841.122), a petition for transfer to less restrictive supervision pursuant (§ 841.0834), and a
petition for review of transfer to more restrictive supervision (§ 841.0834(d)). To date, Hitt has not

27

filed any petition under the statute, including a petition challenging the transfer to tier four, which
led to his confinement at TCCC. This failure to take advantage of the remedies available to him
under the statute is fatal to his procedural 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. Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 519 (5th
Cir. 1998) (plaintiff cannot complain that “her due process rights were violated when she skipped
an available state remedy”).9 Because Hitt has the right to seek review of the transfer leading to his
confinement at TCCC, or to seek release, his due process claim is meritless as a matter of law.10
c.

Constitutionality of 2015 Amendments and Right to Outpatient Treatment

Hitt argues that the 2015 Amendments to Chapter 841 of the SVP Act are unconstitutional
as applied to him.11 He complains of the amendments’ retroactivity, and also argues placing him in
total confinement is punitive and therefore unconstitutional because he has “a vested liberty interest

9

See also, Browning v. City of Odessa, 990 F.2d 842, 845 n.7 (5th Cir. 1993) (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, 839–40 (5th
Cir. 1989) (“no denial of procedural due process occurs when a person has failed to utilize the state
procedures available to him”); Galloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987) (“[a]n
employee cannot ignore the process duly extended to him and later complain that he was not
accorded due process” and thus finding no procedural due process violation).
10

Hitt has recently filed a Motion for Partial Summary Judgment on his Procedural Due
Process Claim (Dkt. No. 43). For the reasons stated in the text, that motion is without merit. It will
also be moot if this Report and Recommendation is adopted by the district court.
11

Hitt is only challenging the 2015 Amendments to the SVP Act and is not challenging the
constitutionality of the underlying SVP Act as he concedes that such a challenge would fail in light
of the Texas Supreme Court’s opinion in In re Commitment of Fisher, 164 S.W.3d 637(Tex.)
(upholding the SVP Act), cert. denied, 546 U.S. 938 (2005). See Dkt. No. 28 at p. 27.
28

in outpatient treatment.” Dkt. No. 28 at p. 30.12 The Supreme Court has repeatedly upheld civil
commitment programs similar to Texas’s. See United States v. Comstock, 560 U.S. 126 (2010);
Kansas v. Crane, 534 U.S. 407 (2002); Seling v. Young, 531 U.S. 250 (2001); Kansas v. Hendricks,
521 U.S. 346 (1997). In Kansas v. Hendricks, the Supreme Court upheld the constitutionality of a
Kansas statute providing for the inpatient civil commitment of sexually violent predators. The Court
rejected the petitioner’s argument that total confinement constituted punishment, reasoning:
Although the civil commitment scheme at issue here does involve an affirmative
restraint, the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment. The State may take
measures to restrict the freedom of the dangerously mentally ill. This is a legitimate
nonpunitive governmental objective and has been historically so regarded. The Court
has, in fact, cited the confinement of “mentally unstable individuals who present a
danger to the public” as one classic example of nonpunitive detention. If detention
for the purpose of protecting the community from harm necessarily constituted
punishment, then all involuntary civil commitments would have to be considered
punishment. But we have never so held.
* * *
Where the State has “disavowed any punitive intent”; limited confinement to a small
segment of particularly dangerous individuals; provided strict procedural safeguards;
directed that confined persons be segregated from the general prison population and
afforded the same status as others who have been civilly committed; recommended
treatment if such is possible; and permitted immediate release upon a showing that
the individual is no longer dangerous or mentally impaired, we cannot say that it
acted with punitive intent. We therefore hold that the Act does not establish criminal
proceedings and that involuntary confinement pursuant to the Act is not punitive.
521 U.S. at 363, 368-9 (internal citations and quotations omitted). Accordingly, the Court held that
the Kansas SVP Act “comports with due process requirements and neither runs afoul of double

12

Although Hitt also argues generally that he has been denied adequate sex offender treatment
in violation of his constitutional rights and the SVP Act, Hitt’s pleadings focus only on the
inadequacy of the treatment program based on the elimination of outpatient treatment. Hitt has failed
to allege how the treatment program is inadequate other than complaining that it is insufficient
because it eliminates outpatient treatment and requires total confinement.
29

jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking.” Id. at 371.
Texas state courts have also consistently upheld the constitutionality of the Texas SVP Act
as originally enacted. See, e.g., Fisher, 164 S.W.3d at 645-656 (holding that SVP statute was not
punitive and was not void for vagueness); Beasley v. Molett, 95 S.W.3d 590, 607–08 (Tex.
App.–Beaumont 2002, pet. ref’d) (rejecting SVP’s argument that the SVP Act was unconstitutional
on its face and in its application). Courts have also upheld the constitutionality of the 2015
Amendments and have rejected constitutional challenges to the tiered treatment program. See In re
Commitment of Garza, 2016 WL 4485641, *1 (Tex. App.–Beaumont Aug. 25, 2016, ) (“[W]e
reiterate that Chapter 841 of the Texas Health and Safety Code, as amended in 2015, is neither
punitive nor facially unconstitutional”); In re Commitment of May, 500 S.W.3d 515, 520-27 (Tex.
App. 2016, pet. denied) (upholding the constitutionality of the 2015 Amendments to Chapter 841,
finding that the tiered treatment program was not unconstitutionally punitive, retroactive or a
violation of due process).
In fact, the 2015 Amendments to the SVP Act, which deleted all references to outpatient
treatment, brought “Texas’s SVP scheme in line with similar programs that the Supreme Court has
upheld as constitutional.” Richards v. Taylor, 2015 WL 5310853, *2 (S.D. Tex. Sept. 11, 2015).
In Richards, the plaintiff, like Hitt in this case, argued that the 2015 Amendments to the SVP Act
were retroactive amendments and that he had an ongoing “vested right to outpatient treatment.” Id.
at *3. The district court rejected this argument noting that the plaintiff “cites no authority for the
proposition that his Order of Civil Commitment, by requiring that Plaintiff be committed for
outpatient treatment, thereby confers upon him a vested or unalterable right to outpatient treatment.”
Id. Rather, the requirement for outpatient treatment under the former law was a condition of his

30

commitment order and not an “entitlement.” Id. The court further reasoned that the 2015
Amendments did not impermissibly increase plaintiffs’ liability for past conduct since “Plaintiff’s
commitment to outpatient treatment was not a punishment for past conduct but rather a civil
commitment based on a finding that Plaintiff's behavioral abnormality made him ‘likely to engage
in repeated predatory acts of sexual violence.’” Id. (quoting Tex. Health & Safety Code § 841.001).
Accordingly, the court found that the Legislature was not precluded from “changing the modalities
for effective treatment of sexually violent predators” and concluded that the plaintiff had “not shown
any statutory or constitutional basis for finding that he has an unalterable right for outpatient
treatment by reason of the prior legislative treatment scheme such that he has a continuing right to
injunctive relief after enactment of the reforms of the 2015 Amendment.” Id. at 5.
Texas courts have similarly held that SVP’s do not have a statutory or constitutional right to
continued outpatient treatment. In May, the court rejected the SVP’s arguments that the SVP Act,
as amended, was unconstitutionally punitive, retroactive, or that the plaintiff had a vested right to
outpatient treatment. 500 S.W.3d at 523-526. In rejecting the plaintiff’s argument that he had a right
to outpatient care, the court reasoned:
May lost his right to control the location of his residence when he was committed.
May argues the use of an outpatient modality under the previous version of the statute
demonstrates that inpatient sex offender treatment is unnecessary, “[b]ut the necessity
and appropriateness of legislation are generally not matters the judiciary is able to
assess.” Changes in the law that merely affect remedies or procedure, or that
otherwise have little impact on prior rights, are usually not unconstitutionally
retroactive. When May was civilly committed in 2013, the Legislature provided that
settled expectations included having the treating agency determine where May would
reside and the sex offender treatment he would receive. The State’s need to operate
a sex offender treatment program for sexually violent offenders who have discharged
their criminal sentences justifies requiring a person to receive sex offender treatment
at the general location where he resides, as determined by the TCCO, which by
statute now includes a tiered program with “inpatient” as opposed to “outpatient”

31

treatment. We conclude that Chapter 841, as amended in 2015, does not violate the
constitutional prohibition against retroactive laws.
Id. at 526 (internal citations omitted).
The petitioner in In re Wilson similarly argued that his amended commitment order
unlawfully interfered with his rights under the original commitment order to receive outpatient
treatment. In re Wilson, 2016 WL 5225422, at *3 (Tex. App.– Beaumont July 15, 2016, no pet. h.).
The court rejected this argument, finding that the trial court had the authority to modify its prior
orders and the plaintiff “had no vested rights under the trial court’s previous orders.” Id. The court
also noted that the judgment allowed the agency in charge of the plaintiff’s treatment to decide both
where he would be required to live and to supervise the program of sex offender treatment that the
commitment order required that he receive. Id. The court also pointed out that the plaintiff, like
Hitt, has a statutory remedy regarding his complaint that the housing that TCCO has placed him in
is too restrictive given his condition, as the SVP statute allows SVP’s to petition the trial court to
obtain less restrictive housing if decreasing his restrictions would be in the SVP’s best interest, and
if adequate protection for the community can be imposed. Id. (citing § 841.0834 (a)-(b)). “[B]y
amending the commitment order so that the amended order complied with the changes the
Legislature made to the SVP statute in 2015, the trial court did not violate [plaintiff’s] constitutional
rights.” Id.; see also, In re Danner, 502 S.W.3d 838, 839 (Tex. App.- Beaumont Sept. 22, 2016, no
pet. h.). Based on the foregoing, Hitt’s claim that the SVP Act, as amended, is unconstitutional as
applied to him is without merit as a matter of law.

32

d.

Costs for GPS Monitoring, Housing and Treatment

Hitt argues that requiring him to pay for the costs of GPS monitoring and a portion of his
housing and treatment amounts to punishment and violates his substantive due process rights. As
discussed above, “[a]n examination of pertinent authority and the SVP statute confirms that the
proceeding at the heart of this action is civil in nature and that [Hitt] is not, contrary to his assertions,
incarcerated, nor is he being subjected to punitive treatment.” Day v. Seiler, 560 F. App’x 316, 319
(5th Cir. 2014). Accordingly, Hitt’s substantive due process claims with regard to the costs for the
GPS monitoring, housing and treatment must be dismissed. See id. (“the court did not err by
rejecting Day’s claims concerning the probable-cause hearing and GPS monitoring, both of which
are grounded in his theory that the SVP proceedings are punitive and thus not civil in nature.”).
e.

First Amendment Right to Associate

Hitt alleges that McLane violated his First Amendment right to associate with another
consenting adult when she prohibited him from associating with his co-worker Maria Lopez. In the
context of prisoner’s First Amendment rights, the Supreme Court has established that policies
infringing on First Amendment rights are valid if “reasonably related to legitimate penological
interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987).
The Fifth Circuit has determined with regard to civilly committed individuals, “restrictions are
permissible so long as they advance the state’s interest in security, order, and rehabilitation.”
Bohannan v. Doe, 527 F. App’x 283, 295 (5th Cir. 2013). Therefore, restrictions on the right to
association are evaluated under the same standard as restrictions on mail—do they bear “a rational
relation” to the state’s interests in security, order and rehabilitation sufficient to sustain the regulation
in question. Id. (quoting Overton v. Bazzetta, 539 U.S. 126, 131 (2003)).

33

In Bohannan, the civilly committed plaintiff alleged that the TCCO’s predecessor’s blanket
policies concerning visitations and outside contact violated right of association because (1) officials
enforced a general prohibition on outside contact, (2) unjustifiably delayed consideration of requests
for exceptions to the rule, and (3) had no means of protecting against retaliatory denial of exceptions
to the no-contact rule. 527 F. App’x at 295. The Fifth Circuit reversed the District Court’s dismissal
of the claim finding that plaintiff had alleged a plausible First Amendment claim against the
defendant:
Bohannan has alleged that the CSOT has blanket policies that prohibit all outside
contact subject to arbitrary exceptions that must be requested and approved on a
case-by-case basis. Bohannan further claims that decisions to permit or deny outside
contact are unduly delayed and used as tools of retaliation. In the context of an
individual civilly committed for the purpose of supervision and outpatient treatment,
it is hard to imagine how such a broad prohibition or an alleged policy of retaliatory
denials is reasonably related to the institution's goal of treatment and rehabilitation.
Id. See also, Day, 560 F. App’x at 319-20 (reversing district court and finding that plaintiff alleged
a plausible First Amendment right of association claim where he alleged that Office of Violent
Sexual Offender Management, now TCCO, policies served as a complete ban on unapproved contact
with family members and friends). Based on this law, the Court finds that Hitt has alleged a
plausible First Amendment claim against McLane to withstand a Motion to Dismiss under Rule
12(b)(6). Because McLane failed to sufficiently address the merits of Hitt’s First Amendment claim
in the Motion to Dismiss, the Court is unable to make any determination at this time whether
McLane might be entitled to qualified immunity on this claim. Accordingly, the motion to dismiss
should be DENIED with regard to this claim.

34

f.

Fifth Amendment Right against Self-Incrimination

Hitt alleges that McLane violated his Fifth Amendment right against self-incrimination by
requiring him to answer incriminating questions on a polygraph examination. “The Fifth
Amendment, in relevant part, provides that no person shall be compelled in any criminal case to be
a witness against himself.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (internal quotation
marks omitted). This prohibition “privileges [Hitt] not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in
future criminal proceedings.” Id. As the Fifth Circuit has explained:
[T]he Fifth Amendment privilege is not self-executing: individuals generally must
claim the privilege against self-incrimination in order to subsequently seek redress.
If an individual asserts the privilege and is forced to answer regardless, the answer
is deemed compelled. That said, the privilege need not be asserted where some
identifiable factor essentially denies an individual the choice of refusing to answer.
In these situations, the answers are also deemed compelled. One such circumstance
arises when assertion of the Fifth Amendment privilege is itself penalized. Thus, in
order to assert a plausible Fifth Amendment claim, [a plaintiff] must allege (1) that
his statements were compelled either because he raised his Fifth Amendment
privilege and was denied it, or because he could not have raised his privilege without
facing a penalty; and (2) that his statements were used in a subsequent prosecution.
Bohannan, 527 F. App’x at 295-96 (internal citations omitted).
In Bohannan, the civilly committed plaintiff alleged that mandatory polygraph examinations
violated his right against self-incrimination because he could not decline and because such
statements were used against him in a subsequent criminal prosecution. Id. at 296. The Fifth Circuit
reversed the district court’s dismissal of the claim because the polygraph examinations presented the
plaintiff with the following dilemma: “either refuse to answer questions regarding violations of the
commitment order and be prosecuted for the refusal, or acknowledge violating the commitment order
and be charged accordingly.” Id. Accordingly, the Fifth Circuit found that the plaintiff had alleged

35

a plausible Fifth Amendment claim. Id.; see also, Day, 560 F. App’x at 320 (holding that claim
alleging that SVP was required to undergo polygraph examinations or else be dismissed from
therapy, which was a felony, alleged a Fifth Amendment claim against self incrimination).
Hitt’s claim in this suit is substantially similar to these cases since he alleges that he was
forced to undergo polygraph examinations and that he could not refuse to do without being punished
by being placed in total confinement. The Court finds that Hitt has alleged enough facts at this
juncture to state a plausible claim for relief under the Fifth Amendment to withstand the motion to
dismiss. Again, McLane failed to address the merits of this claim, so the Court is likewise unable
to determine at this time whether McLane has qualified immunity. Accordingly, McLane’s Motion
to Dismiss this claim should be DENIED.
g.

Fourth Amendment Claim

Hitt alleges McLane violated his Fourth Amendment right to be free from unreasonable
searches and seizures of his home while he was in the outpatient component of the tiered program.
McLane has failed to respond to the merits of this argument. Because McLane failed to sufficiently
address the merits of Hitt’s Fourth Amendment claim, the Court cannot determine whether McLane
might have qualified immunity with regard to this claim as well, and the motion to dismiss this
claim should be DENIED.
IV. CONCLUSION
Based upon the foregoing, the Court recommends the motions to dismiss filed by the TCSO,
and the TCCC, CCRS, and Brian Thomas be granted in full, and that McLane’s Motion to Dismiss
be granted in part and denied in part. As stated above, all of Hitt’s claims against McLane should
be dismissed in this case except: (1) Hitt’s First Amendment right of association claim, (2) Hitt’s

36

Fifth Amendment right against self-incrimination claim based on the mandatory polygraph
examination, and (3) Hitt’s Fourth Amendment unreasonable search and seizure claim. All of the
remaining claims should be dismissed as failing to state a claim on which relief may be granted.
V. RECOMMENDATION
In light of the foregoing, the undersigned RECOMMENDS that the District Judge:
•

DENY Plaintiff’s Second Motion to Amend Complaint (Dkt. No. 34);

•

GRANT Defendant Travis County Sheriff’s Office’s Motion to Dismiss Pursuant to Federal
Rule of Civil Procedure Rules 12(b)(1) and 12(b)(6) (Dkt. No. 25) in its entirety and
DISMISS Travis County Sheriff’s Office from this lawsuit;

•

GRANT Texas Civil Commitment Center, Correct Care Recovery Solutions, LLC and Brian
Thomas’ Motion to Dismiss under Federal Rule 12(b)(6) (Dkt. No. 11) in its entirety and
DISMISS these defendants from this lawsuit;

•

GRANT IN PART AND DENY IN PART Defendant Marsha McLane’s Partial Motion to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Dkt. No. 12), and GRANT the
motion with regard to all of Hitt’s claims EXCEPT (1) Hitt’s First Amendment right to
associate claim, (2) Hitt’s Fifth Amendment right against self-incrimination claim based on
the mandatory polygraph examination, and (3) Hitt’s Fourth Amendment unreasonable
search and seizure claim.

•

DENY Plaintiff’s Motion for Partial Summary Judgment on his Procedural Due Process Claim
(Dkt. No. 43).
VI. WARNINGS
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. See Battle 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 fourteen (14) days after the party is served with a copy of the Report

37

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, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 7th day of February, 2018.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

38