Opinion
3:21-cv-544-G-BN
04-07-2021
RICHARD A. DUNSMORE, #06526120, Plaintiff, v. CHRISTINE KENYON, Defendant.
SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Richard A. Dunsmore, an adjudicated sexually violent predator, has filed this pro se action broadly attacking the constitutionality of his civil commitment but has only sued Defendant Christine Kenyon, the psychologist who authored an expert report in support of his civil commitment, alleging that her report was “flawed” and requesting monetary damages and injunctive relief (including “some methodology to be peacefully removed from the State of Texas”). E.g., Dkt. No. 3 at 23.
Senior United States District Judge A. Joe Fish has now referred Dunsmore's current lawsuit to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference.
On March 11, 2021, the Court granted Dunsmore leave to proceed in forma pauperis, see Dkt. No. 5, and the undersigned entered findings of fact and conclusions of law recommending that, while Dunsmore's claims appear to be currently barred by the favorable determination rule established by Heck v. Humphrey, 512 U.S. 477 (1994), the Court should dismiss his claims without prejudice to his filing within a reasonable time, to be set by the Court, an amended complaint that cures, where possible, the deficiencies outlined [Dkt. No. 6] (the Initial FCR).
Cf. Stewart v. Texas, 648 Fed.Appx. 478, 479 (5th Cir. 2016) (per curiam) (“[A]n individual under a civil commitment pursuant to the [Texas Civil Commitment of Sexually Violent Predators] Act … does not qualify as a prisoner under the [Prison Litigation Reform Act].” (citing 28 U.S.C. § 1915(h); 28 U.S.C. § 1915A(c); Bohannan v. Doe, 527 Fed.Appx. 283, 289-90 (5th Cir. 2013) (per curiam))).
Dunsmore responded by notifying the Court of his intent to file an amended complaint, see Dkt. No. 7, objecting to the Initial FCR, see Dkt. No. 8, and moving for a temporary restraining order (a TRO), see Dkt. No. 9. The undersigned has recommended that the Court should deny the request for a TRO because Dunsmore has not shown a substantial likelihood that he will prevail on his Heck-barred or otherwise unmeritorious claims. See Dkt. No. 11. Dunsmore has now filed an amended complaint. See Dkt. No. 12.
His amended complaint should be dismissed for the reasons supporting the dismissal of his initial complaint. Dunsmore's amended claims against Dr. Kenyon are just thinly veiled attacks on his underlying civil commitment, see generally id., a civil commitment that has not been declared invalid. And he otherwise has not plausibly alleged how Kenyon's expert opinion violated his constitutional rights.
As explained in the Initial FCR,
although the United States Court of Appeals for the Fifth Circuit has yet to so hold, the favorable determination rule established by Heck v. Humphrey, 512 U.S. 477 (1994) - applicable to criminal convictions - appears equally applicable to bar civil claims based on “factual allegations [that] are necessarily inconsistent with the validity of [a civil commitment order]” that the plaintiff fails to show has been reversed on direct appeal or otherwise declared invalid. McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (cited in Bush v. Strain, 513 F.3d 492, 498 n.14 (5th Cir. 2008)); see Heck, 512 U.S. at 486-87; see also Allen v. Seiler, No. 4:12-cv-414-Y, 2013 WL 357614, at *2 (N.D. Tex. Jan. 30, 2013) (“The Heck opinion involved a bar to claims for monetary damages, but a dismissal of a claim for injunctive and/or declaratory relief may also be made pursuant to Heck. Even though the sexually-violent-predator (SVP) commitment order complained of by Allen is civil in nature, rather than criminal, federal courts that have considered § 1983 claims challenging such proceedings have ruled that Heck v. Humphrey applies to bar such claims.” (collecting cases; footnotes omitted)); Smith v. Hood, 900 F.3d 180, 185 (5th Cir. 2018) (“This circuit has thus far applied the Heck doctrine only to claims that implicate criminal convictions or sentences. In Smith's case, however, the district court concluded that there was ‘no reason not to' apply Heck to the civil commitment context, citing other courts that have done so. See Huftile v. Miccio-Fonseca, 410 F.3d 1136 (9th Cir. 2005); Henderson v. Bryant, 606 Fed.Appx. 301, 304 (7th Cir. 2015); see also Allen v. Seiler, No. 4:12-CV-414-Y, 2013 WL 357614, at *3 n.14 (N.D. Tex. Jan. 30, 2013) (collecting cases); Martin A. Schwartz, Sec. 1983 Litig. Claims & Defenses § 10.07 (4th ed. 2017). In Huftile, the Ninth Circuit reasoned that Heck is equally applicable to people who are civilly committed because, as with a criminal sentence, the appropriate avenue to challenge the validity of civil confinement is through a habeas petition, not § 1983. Huftile, 410 F.3d at 1139-40. Because Heck's holding was based at least in part on “prevent[ing] a person in custody from using § 1983 to circumvent the more stringent requirements for habeas corpus, ” the Ninth Circuit held that Heck's reasoning therefore applies to the civil commitment context as well. Id. at 1139. Though we note that the Ninth Circuit's and other courts' reasoning on this issue is persuasive, whether Heck extends to civil commitments is still a res nova question in this circuit.”).
Heck should therefore bar any constitutional claims by Dunsmore against Kenyon, as his attacks on the validity of her report or her expert opinion are necessarily inconsistent with his valid civil commitment.
And, “[r]egardless of whether Heck applies to civil commitment, [Dunsmore] must still ‘assert [a] coherent legal theory, either in his briefs or in his complaint [ ], explaining how [Kenyon's] actions violated his federal rights.' [Dunsmore] has not asserted a coherent legal theory.” Black v. Turner, 779 Fed.Appx. 231, 233 (5th Cir. 2019) (per curiam) (quoting Smith, 900 F.3d at 186). Similar to Black, Dunsmore has not plausibly alleged how Kenyon's expert opinion violated his constitutional rights. See Id. at 234 (“Here, Black has alleged - in the complaint and the proposed amendment - that Turner negligently included incorrect facts in his expert report. Even if we take as true that Turner's report contained inaccuracies, Black received due process. Black had the opportunity to contest those inaccuracies at the civil confinement trial, review the report, and offer evidence to rebut those facts. See Tex. Health & Safety Code § 841.061(d). Black does not allege any deficiency in the trial or a lack of opportunity to present his own evidence.”).Dkt. No. 6 at 3-5.
The Court should therefore dismiss Dunsmore's case as frivolous and for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B); see also Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question.” (citation omitted)).
Recommendation
The Court should dismiss Plaintiff Richard A. Dunsmore's complaint with prejudice.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).