Summary
holding that an inmate's reputational interests and sex offender classification did not implicate a liberty interest sufficient to trigger due process protections
Summary of this case from Branch v. CollierOpinion
No. 3:99-CV-0098-BF
February 26, 2002
MEMORANDUM OPINION AND ORDER
This is a consent case before the United States Magistrate Judge. The Motion for Summary Judgment of Defendants Lewis, Greer, Scoff, Rodriguez and Linson is before the Court for consideration. Plaintiff is currently in the Jordan Unit of the Texas Department of Criminal Justice in Pampa, Texas. Proceeding pro se, he brought this civil rights action pursuant to 42 U.S.C. § 1983. The Court appointed counsel for Plaintiff. The Court permitted Plaintiffs counsel to withdraw after Plaintiffs motion for summary judgment was at issue because a conflict of interest arose. Plaintiff is presently proceeding pro se. The defendants are Melvin Lewis, Supervisor for the Texas Board of Pardons and Paroles; Richard A. Greer, Jr., Parole Officer for the Texas Board of Pardons and Paroles; Billy Linson, Director of Region #1 for the Texas Board of Pardons and Paroles; Victor Rodriguez, Chairman for the Texas Board of Pardons and Paroles; and Wayne Scott, Executive Director of the Texas Department of Criminal Justice. Plaintiff also named the following defendants: Glenda Smith, Parole Supervisor for the Texas Board of Pardons and Paroles; Greg Thompson, Psychological Counselor for the Texas Board of Pardons and Paroles; and Veronica Ballard, Director of the Texas Department of Criminal Justice Parole Division. More than 120 days has expired since Plaintiff named these additional defendants and legally sufficient service has not been obtained on them. Accordingly, pursuant to Fed.R.Civ.P. 4(m), Smith, Thompson, and Ballard are dismissed without prejudice. The Attorney General for the State of Texas is appearing as amicus.
Defendants Lewis, Greer, Scott, and Rodriguez filed a motion for summary judgment and brief in support on January 10, 2001. On October 1, 2001, Defendant Linson, who was not a party at the time the other defendants filed the motion, adopted and supplemented the motion. The Court has considered the entire record, including, but not limited to the following: (1) the January 10, 2001 summary judgment motion, brief, and Appendix; (2) Plaintiffs January 30, 2001 response, brief, and Appendix; (3) Defendants Lewis, Greer, Scott, and Rodriguez's Feb. 23, 2001 Reply Brief, (4) Plaintiffs March 6, 2001 Motion for Leave to File a Surreply and Brief in Support and Plaintiffs Surreply, and (5) Linson's Oct. 1, 2001 Notice and Supplement.
Plaintiff claims that defendants have "labeled him as sex offender" and that they have supervised him on mandatory supervised release on a "sex offender caseload" continually since the middle of August, 1995, in violation of his civil rights. Plaintiff claims that he was charged with fondling his niece in 1967 and the attempted rape of a woman in 1980, but in the first case he pled guilty to a lesser included offense of assault, a misdemeanor, and in the second case, the jury convicted him of the lesser included offense of assault, a misdemeanor. Plaintiff claims he has a liberty interest in not being labeled a sex offender and supervised on a sex offender caseload on parole. Plaintiff seeks an injunction and declaration that he should never again be classified as a sex offender and supervised on a sex offender caseload on parole. He seeks compensatory and punitive damages of $2.5 million.
Plaintiff initially raised claims pursuant to the Ex Post Facto Clause of the United States Constitution and claims regarding his refusal to sign the Parole Contract. Plaintiff no longer wishes to pursue those claims. (Brief in Support of Plaintiffs Response to Defendants Lewis, Greer, Scott, and Rodriguez's Motion for Summary Judgment at 4 n. 1.) Plaintiff concedes no claims for money damages will lie against Defendants in their official capacities and asserts claims against them in their official capacities only for the purpose of obtaining prospective injunctive relief (Id.) Plaintiff withdraws all claims against Defendants Scott and Rodriguez except to the extent Defendant Scott is required to be before the Court to carry out any injunctive relief the Court should award. (Id.)
STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). The proper inquiry for the trial court is whether there are any "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. The moving party is entitled to summary judgment when the nonmoving party fails to make a sufficient showing with respect to an element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The trial court must consider all of the properly submitted summary judgment pleadings and documents and construe them in the light most favorable to the non-moving party. Id. at 323.
UNDISPUTED MATERIAL FACTS
The Court finds the following material facts are undisputed:
1. In 1968, Plaintiff was charged by indictment with the felony of Fondling the Sexual Parts of a Female Child with lascivious intent in Case No. C-68-806-HR. On July 19, 1968, pursuant to a plea agreement, the District Attorney asked the court to reduce the offense charged in the indictment to the lesser included offense of "aggravated assault, " a misdemeanor. Defendant was convicted of aggravated assault in Criminal District Court No. 4 of Dallas County, Texas and sentenced to six months in the Dallas County Jail.
The indictment charged that on January 21, 1968, Plaintiff unlawfully, with lascivious intent, knowingly and intentionally, placed his hand against a sexual part, to wit, the vulva, of Nancy Willis, a female under the age of fourteen years.
2. In the 194th Judicial District Court of Dallas County, Texas in case No. F80-1506-IM, Plaintiff was charged with Attempted Aggravated Rape, a Second Degree Felony, and on April 17, 1981, a jury convicted him of the lesser included offense of assault, a Misdemeanor. Plaintiff was sentenced to one year in the Dallas County Jail.
3. Plaintiff's criminal history is extensive. Plaintiff was convicted of burglary in 1964 and served two years on probation. In 1970 he was convicted of possession of a forged instrument and served 2 years in TDCJ. In 1976 he was convicted of assault and possession of heroin and served 15 years. In 1986 he was convicted of attempted murder. He was in the custody of TDCJ-ID, serving an eighteen-year sentence for that case, number F-86-87050-S, when he was released to parole on December 4, 1989. Plaintiffs parole was revoked on October 10, 1991 for a new offense, felon in possession of a firearm. Plaintiff received a ten-year sentence on the new offense.
4. Plaintiff became eligible for mandatory supervised release on August 11, 1995. He refused to sign the certificate of release or conditional contract. Because of his refusal, he was released last. The Texas Board of Pardons and Paroles issued a Certificate of Mandatory Supervision on May 16, 1995. The following special conditions were set by the Board of Pardons and Parole: (1)L; (2)S; and (3)O.
1. (L) Releasee shall be assigned to the highest level of supervision or supervision case load until appropriate level of supervision is further established by objective assessment instrument and supervision case classification;
2. (S) Releasee shall submit to substance (alcohol/narcotics) treatment program, which may include urinalysis monitoring, attendance at scheduled counseling sessions, driving restrictions, or related requirements as directed by the supervising parole officer;
3. (O) Releasee shall comply with any other condition as specified herein. (See attachment) (The attachment stated "Special Condition . . . Project Rio; No door-to-door selling").
5. Defendant was first supervised by Parole Officer Glen Hubbard who told Plaintiff in the middle of September, 1995, that he was being transferred to a sex offender caseload where he would be supervised by Glenda Smith. Plaintiff told Hubbard he was not a sex offender and became traumatized, embarrassed and humiliated because the subject had been raised. Plaintiff's embarrassment "forced him to quit his job" as a sales manager for BYC Services on Griffin Street.
6. Plaintiff told Smith he was not a sex offender, but she told him the sex offense was on his record and was the same as a conviction and refused to transfer him to a regular caseload. Plaintiff again became traumatized and embarrassed.
7. The last part of September, 1995, Plaintiff was assigned Parole Officer David Rogers who also refused to transfer him to a regular case load and caused him mental anguish and suffering.
8. Plaintiff contacted Billy Linson, Director of Region II for the Texas Board of Pardons and Paroles and told him he was being supervised as a sex offender even though he had not been convicted of a sex offense. Linson told him Melvin Lewis was in charge of the matter.
9. Plaintiff met with Melvin Lewis, David Rogers and Glenda Smith. Plaintiffs parole records show that as a result of Plaintiffs actions at the meeting, on November 3, 1995 a PreRevocation Warrant was issued due to alleged violations of Rule #2, Terroristic Threat and Rule #3, Changing residence. A preliminary Revocation Hearing was held on December 11, 1995 in the Dallas County Jail and the Board Disposition on December 20, 1995 was to proceed to a Revocation Hearing. On January 16, 1996 a Revocation Hearing was held in the Dallas County Jail and the Board revoked his mandatory supervision on January 31, 1996 based on the Terroristic Threat. The Board returned Plaintiff to an Intermediate Sanction Facility (ISF), an alternative to returning a parole violator to the Institutional Division (ID). Rollins completed ISF and was released on parole on May 22, 1996.
10. Nguyen was assigned to Plaintiffs case as parole officer and continued to supervise him on the sex offender case load.
11. Plaintiff went to work as a telemarketer but quit because he was afraid it would violated his parole.
12. Richard Greer, Jr. was assigned as Plaintiffs parole officer in June or July of 1996. He had Plaintiff evaluated by a counselor. Plaintiff paid $30 for the evaluation. The counselor could not determine whether Plaintiff was telling the truth when he denied the facts that lead to the two arrests for sexual offenses and suggested he take a lie detector test. Plaintiff could not afford a lie detector test and did not take one.
13. Plaintiff met with Melvin Lewis, Glenda Smith and Richard Greer. Lewis said Plaintiff would not have to take a lie detector test, but must go to counseling. Plaintiff paid to attend "several counseling sessions."
14. On August 5, 1996, the Board imposed special conditions "O" (Sex Offender Program), "P" (Psychological Counseling), and "V" (No Contact with the Victim) based on a recommendation from Plaintiffs parole officer, Richard Greer. Greer's reason for the recommendation was as follows: "Releasee is being supervised on sex offender caseload. The requested special conditions are required by the sex offender program. Releasee has at least (2) two convictions for sex offenses and is an extremely violent individual. It is believed that counseling is necessary not only for the sex offenses but as an assistance to anger management."
15. In February 1997, Plaintiff contacted his niece, the victim in the 1967 misdemeanor assault conviction, to get an affidavit. He was arrested for a parole violation for "contacting the victim," but the Board did not revoke his parole.
16. Plaintiff gave up a contract to sing the blues in June or July of 1997 and a job at Laurel Land because he was embarrassed to be supervised as a sex offender.
17. Plaintiff trained to sell Kirby Vacuum Cleaners but learned that "not selling door to door" was a condition of his parole. Plaintiff was so frustrated he went on a drinking and drug binge, and was in a car wreck.
18. Plaintiffs parole was revoked, and he was returned to TDCJ-ID on June 28, 1998.
19. Plaintiff filed this suit on January 15, 1999.
At the initial screening stage this Court noted that some courts have held that labeling as a sex offender an inmate who has never been convicted of a sex offense or given the opportunity to challenge the label in an adversary proceeding violates due process. See, e.g., Neal v. Shimoda, 131 F.3d 818, 833-34 (9th Cir. 1997). The Court held, as a preliminary matter, that Plaintiffs allegations against Lewis, Smith, Greer and Linson were sufficient to survive the screening stage of the litigation. Upon consideration at the summary judgment stage, the Court finds that Neal's teachings do not afford Plaintiff relief under the undisputed facts in this case.
STATUTE OF LIMITATIONS
Defendants contend that any of Plaintiff's claims for damages which arose before January 15, 1997 are barred by the two-year statute of limitations for civil rights actions. Plaintiff relies upon the "continuing violation" theory, claiming that failure to give him a due process hearing before setting and before amending the conditions of his parole violated his Fourteenth Amendment rights and that each time a parole officer enforced those unconstitutionally invalid conditions, the limitation period was revived. Defendants rely upon McGregor v. Louisiana State University Rd of Supervisors, 3 F.3d 850, 866 n. 27 (5th Cir. 1993). In McGregor, a Louisiana college student alleged several due process violations, the last of which occurred in the Spring of 1990. He filed suit in the Fall of 1991, outside Louisiana's one-year statute of limitations for § 1983 claims. The Fifth Circuit held that a plaintiff cannot use the continuing violation theory to resurrect claims about due process, concluded in the past, even though its effects persist. McGregor, 3 F.3d at 867. The circuit court distinguished continuous unlawful acts from a single violation, followed by continuing consequences. Id.Plaintiff relies upon Jackson v. Galan, 868 F.2d 165, 168 (5th Cir. 1989), in support of his continuing violation theory. In Jackson, a garnishment judgment was issued without due process. The circuit court held that each execution of the garnishment judgment by the Sheriff created a continuing violation of the judgment debtor's due process rights. Jackson, 868 F.2d at 168. Plaintiff claims Defendants continue to classify and supervise him as a sex offender and that the statute of limitations will not commence until the violations are abated. The Court finds that Jackson governs the application of the limitation period in this case because Plaintiff is claiming continuing violations of his due process rights.
QUALIFIED IMMUNITY
Parole officers, like other public officials acting within the scope of their official duties, are shielded from claims of civil liability including § 1983 claims, by qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). The Court must apply a two-step inquiry to determine whether an officer is entitled to qualified immunity from federal suit. First, the Court must determine whether a plaintiff has alleged a violation of a clearly established constitutional right, and second, whether the officer's conduct was "objectively reasonable in light of clearly established law at the time of the alleged violation." Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 343 (5th Cir. 2001 (internal quotations and citations omitted.) The first prong depends upon (1) whether the plaintiff alleges a deprivation of a constitutional right; (2) whether the right was clearly established at the time of the alleged violation; and (3) whether the defendant actually violated that right. See id.
The parties do not despite that when Lewis and Greer supervised Plaintiff's parole their conduct constituted state action under color of law for the purposes of the § 1983 claims brought against them in their individual capacity.
Under Texas law, an inmate can become eligible for release before the completion of his sentence by parole or under a mandatory supervision release program. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). It is entirely speculative whether an inmate will actually obtain parole, inasmuch as there is no right to be released on parole. See Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); see also Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d 982 (1991). Texas Code of Criminal Procedure article 42.18 § 8(c) provides that "a prisoner who is not on parole shall be released to mandatory supervision" when his calendar time plus his accrued good-conduct time equals the maximum term to which he was sentenced. Texas' mandatory supervision scheme in place prior to September 1, 1996 for earned good-time credits creates an expectation of early release only for those covered by that statute. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). Some Texas inmates are not eligible for mandatory supervision release, including those who have been convicted of certain aggravated crimes. See Madison, 104 F.3d at 768.
Texas' mandatory supervision scheme in place prior to September 1, 1996 applied to Plaintiff because the attempted murder that resulted in his holding conviction occurred before that date. Accordingly, Plaintiff had a liberty interest in being released when his good time credits and his flat time equaled the length of his sentence. See Malchi, 211 F.3d at 957-58. Plaintiff was released to mandatory supervision on the highest level of supervision, with the appropriate level to be determined after an objective assessment. The initial question for purposes of qualified immunity is whether any of the defendants violated any clearly established constitutional right of Plaintiff in setting, modifying, and enforcing any of Plaintiff's conditions of release.
Before beginning this consideration, the Court notes that community notification is not an issue in this case. The facts do not show that Plaintiff has been labeled publicly as a sex offender or required to register under any sex offender registration law. Plaintiff does not allege that Defendants published or posted Plaintiffs name, address, and photograph with the label "predatory sex offender" attached. According to Plaintiff, the constitutionally offensive acts that actually occurred were placing and keeping him on a "sex offender caseload" with respect to his parole supervision, charging an extra fee for that supervision, not allowing him to come in contact with his niece whom he was convicted of assaulting (a misdemeanor), not allowing him to be alone with juveniles or have unsupervised contact with juveniles, not allowing him to reside in a home with children under the age of 17, not permitting him to be employed as a "door-to-door" salesman, making him pay to be evaluated by a counselor and requiring him to pay for "several counseling sessions."
The condition that Plaintiff "enroll in, participate in, pay for, and complete a counseling program for sex offenders approved by [his] parole officer, to include any assessments necessary to complete the use of the penile plethyshograph, clinical polygraph testing commonly used for individuals who experience or evidence a pharaphiliac disorder" was not enforced. At most, the parole officer required him to pay for and be evaluated by a counselor and to pay for and attend several counseling sessions. Plaintiff was not subjected to the use of the penile plethyshograph.
Reputational interests alone are not "liberty" interests within the meaning of the Due Process Clause and do not merit due process protections. Paul v. Davis, 424 U.S. 693 (1976); Siegert v. Gilley, 500 U.S. 226, 229 (1991). In Paul, the plaintiff filed an action in federal court under 42 U.S.C. § 1983, arguing that the local police had violated his due process rights by distributing a circular to retail businesses that identified him, by name and photograph, as an "active shoplifter." After noting that the plaintiff had stated a "classical claim for defamation," the Court concluded that the claim had no due process significance. The Supreme Court reasoned that (1) as a general proposition, the Due Process Clause does not imbue a commonplace state tort claim for defamation with constitutional significance, merely because the damage to reputation is inflicted by a government official; and (2) a claimed injury to reputation is not different in kind from injuries to other interests that are protected by state law and one's interest in reputation alone, apart from some more tangible interest such as employment, cannot justify the invocation of the procedural safeguards guaranteed by the Due Process Clause. Paul, 424 U.S. at 697-701. The Court also explained that its earlier decision in Constantineau was not to the contrary, because in Constantinueau something more than mere reputational damage was at issue, i.e., the right, under state law, to purchase alcohol. Paul, 424 U.S. at 707-09.
In Siegert, a psychologist who had been employed in an Army hospital filed a federal claim against a former supervisor, asserting that the supervisor had infringed on liberty interests protected by the Due Process Clause by providing a negative assessment of the psychologist's job performance to the psychologist's new employer. The Supreme Court noted that, while perhaps sufficient to make out a state defamation claim, the facts did not support a federal claim, because there is no constitutional protection for the interest at stake, an interest in reputation. Siegert, 500 U.S. at 234.
The United States Supreme Court has not decided "whether . . . the imposition of parole conditions has the kind of impact on liberty that must be preceded by 'due process.'" Scott v. Kentucky Parole Board, 429 U.S. 60, 60-61 (1976). In Cruz v. Skelton, 543 F.2d 86, 88-89 (5th Cir. 1976), the Fifth Circuit Court of Appeals considered a Texas inmate's claim that he was denied due process during the Texas Board of Pardons and Parole's consideration of whether he should be released on parole. The inmate claimed that he was denied due process by the Parole Board's policy that he could not appear in person before the Board to argue for his release and its refusal to appoint counsel to appear before it to present his case for release. The Fifth Circuit panel discussed at length the considerable confusion within the circuits regarding the amount of process that is due at the time an inmate is considered for release on parole. The Fifth Circuit court discussed and relied upon its decisions in Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied 429 U.S. 917 (1976) and Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974) to decide that the Texas Board of Pardons and Parole did not deny Cruz due process. Cruz, 543 F.2d at 88-89.
In Cruz, the Fifth Circuit Court of Appeals specifically disagreed with the Court of Appeals for the District of Columbia's characterization of the denial of parole as a deprivation of "the valuable features of conditional liberty" equivalent to the loss involved in parole revocation that mandates due process protection in Childs v. United States Board of Parole, 511 F.2d 1270, 1278 (D.C. 1974).
This case is factually similar to Cruz in that Plaintiff was not allowed to appear before the Board when it set and later modified the conditions of his release, but he was allowed to submit written objections. The fact that the Parole Board considered the facts underlying the misdemeanor assault convictions was not a violation of due process. See Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981) (holding the United States Parole Commission's consideration of an underlying charge of smuggling cocaine that had been dismissed when the defendant pled guilty to a lesser offense did not violate due process); Bistram v. United States Parole Board, 535 F.2d 329, 329 (5th Cir. 1976) (finding the Parole Board did not err by considering a dismissed kidnaping charge in postponing the parole of a defendant convicted of attempted bank robber with a dangerous weapon); Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979) (holding a state prisoner was not denied any constitutional rights by reason of the Parole Board's consideration of the nature and circumstances of his offense).
Courts in other circuits have held that, in certain circumstances, classification as a sex offender implicates a liberty interest and triggers due process protections. In Neal, the Court of Appeals for the Ninth Circuit addressed a sex offender statute under which the Hawaii Parole Authority agreed to identify all sex offenders in custody, that is, any inmate who had been convicted of any sex offense or who had engaged in sexual misconduct during the commission of a crime. Neal, 131 F.3d at 818. To become eligible for parole, each identified inmate was required to participate in twenty-five sessions of treatment and to admit that he had committed the alleged offense. The court of appeals found that the combination of the stigmatizing consequence of being labeled a sex offender coupled with the mandated completion of a treatment program created "the kind of deprivations of liberty that require procedural protections." Neal, 131 F.3d at 830. In reaching this conclusion, the court relied on Vitek v. Jones, a case in which inmates had challenged a Nebraska law that permitted prison officials to identify certain inmates as mentally ill and transfer them without a hearing to mental institutions for involuntary confinement. The Supreme Court held this procedure unconstitutional because the loss of liberty produced by an involuntary commitment to a mental institution is "more than a loss of freedom from confinement," and beyond the range of conditions of confinement justified by imposition of a prison sentence. The Court added that the stigma of the commitment" 'can have a very significant impact on the individual,'" and that compelled treatment in the form of behavior modification programs was a proper factor to be taken into consideration by the district court. The Ninth Circuit Court of Appeals relied primarily upon Vitek to hold that Hawaii could not classify inmates as sex offenders and mandate their participation in treatment programs as a condition for parole without a prerelease hearing that complied with the requirements in Wolff v. McDonnell, 418 U.S. 539, 563 (1974).
445 U.S. 480 (1980).
Vitek. 445 U.S. at 492.
Vitek, 445 U.S. at 493.
Vitek 445 U.S. at 492 (quoting Addington v. Texas, 441 U.S. 418, 426 (1979)).
Vitek, 445 U.S. at 492.
In Chambers v. Colorado, 205 F.3d 1237 (10th Cir. 2000), the Court of Appeals for the Tenth Circuit held that the stigma of classification as a sex offender plus the loss of the opportunity to earn the full amount of good time available to other inmates implicated a liberty interest. Colorado law required sex offender treatment for persons identified as needing it. Although Chambers was identified as an unconvicted sex offender who had committed a sex offense, he was not required to participate in sex offender counseling until five years after he had been identified, during which time he continued to earn ten days of good time each month. In 1992, he was confronted again about his offense and refused to admit it. Because of the refusal, he was not allowed to participate in a sex offender treatment program and was docked three days of good time a month. According to the Tenth Circuit Court of Appeals, Chambers had a liberty interest in avoiding the label of sex offender and its mandatory consequences that required the Colorado Department of Corrections to afford him a hearing at which he could challenge the label. The Court considered the opportunity to earn ten days of good time (rather than seven) a benefit that could not be taken away without some process. Chambers, 205 F.3d at 1243.
In Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999), a per curiam court held that "the stigmatizing effect of being classified as a sex offender constitutes a deprivation of liberty under the Due Process Clause." Although the language suggests that nothing more than the label is required to raise a liberty interest, in that case the label included a requirement for participation in sex offender treatment sessions as a prerequisite for parole eligibility, ineligibility for minimum custody classification, and the probability of community notification upon release. In these circumstances, the court was satisfied that the labeling exceeded "the sentence imposed by the court." Kirby, 195 F.3d at 1291.
The Court is not persuaded by these appellate decisions from other circuits that Plaintiff had a liberty interest in his conditions on parole when the conditions were set or modified. He has not proved that he had a liberty interest in (1) not being assigned to a sex offender caseload on parole, (2) not attending "some counseling," (3) not having limited his association with the victim of his assault and other juveniles, and (4) not being excluded from door-to-door selling while he is on parole. Persons entering prison are often required to have an evaluation of the reasons, for their criminal behavior and their treatment needs, for the resulting evaluations to be recorded in their records, and for the authorities who make programming and parole decisions to base their decisions in whole or in part on their sense of the effort a particular inmate has made to confront the problems that have been identified as contributing to his criminal conduct. The Court is not persuaded that Plaintiffs evaluation and identification as a person in need of sex offender supervision is the "a typical and significant hardship on the inmate" that creates a liberty interest. Sandin v. Conner, 515 U.S. 472, 484 (1995) ("[Liberty] interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.") (internal citations omitted). The facts in the appellate decisions that find a liberty interest are distinguishable from those in this case. In Neal, 131 F.3d 818, for instance, the plaintiff showed that the sex offender programs were mandatory requirements for parole or for the earning of good time. Cf. Neal, 131 F.3d at 830: "[Once a targeted inmate has been labeled as a sex offender], it is mandatory that the labeled inmate successfully complete the specified treatment program in order to become eligible for parole"; see also Chambers, 205 F.3d at 1243 (addressing mandatory treatment programs as preconditions for parole eligibility). In Neal, 131 F.3d at 830, the court acknowledged that it would probably have held that the mandatory requirement of completing the program successfully withstood legal challenge if the requirement had not been coupled with the attachment of the term "sex offender" to the inmate. Apparently, the court of appeals believed that the label would become public knowledge. Certainly, it seems likely that in Kirby, 195 F.3d 1285, the court gave weight to the connection between the classification of an inmate as a sex offender and the required community notification that would be required when he left prison.
Plaintiffs so-called "label" was not made public and the conditions under which he was actually supervised were not exceedingly more burdensome that the ordinary conditions of parole or the conditions necessary for a releasee with his extensive criminal history. Extra attention and counseling could have been helpful to Plaintiffs rehabilitation but for his bad attitude about and reactions to the conditions. Even if Plaintiffs identification as requiring management on parole as a sex offender required some due process, defendants provided Plaintiff with adequate process when they allowed Plaintiff to submit written statements. Moreover, the only actionable harms that came to Plaintiff, i.e., the revocation of his parole and the car wreck, resulted from Plaintiffs inability to manage his anger, rather than from actions of the Defendants. Plaintiff claims he quit his jobs at Laurel Land and gave up his recording opportunity out of embarrassment. The parole authorities did not cause him to lose those opportunities. Many other prospective jobs existed even though door-to-door sales was not an option for Plaintiff.
Even if Plaintiff were able to show that he had a protected interest under the Fourteenth Amendment before he was managed on parole as a sex offender, defendants would be shielded from liability for damages by qualified immunity. At the times that Plaintiff was identified as needing sex offender management on parole no circuit court had held that an inmate has a liberty interest in not being classified as a sex offender. Neal was not decided until December 1997; other courts of appeals did not rule until 1999 and 2000. Chambers, 205 F.3d 1237; Kirby, 195 F.3d 1285. Neitherthe United States Supreme Court nor the Fifth Circuit Court of Appeals has recognized a pre-parole liberty interest that requires a hearing before conditions of parole may be set.
CONCLUSION
Pursuant to Fed.R.Civ.P. 4(m), Smith, Thompson, and Ballard are dismissed without prejudice for Plaintiffs failure to obtain legally sufficient service of process. Plaintiff has not shown that there is a genuine issue of material fact with respect to his claims for declaratory or injunctive relief and damages for violation of his civil rights. The motion for summary judgment of Defendants Lewis, Greer, Scott, Rodriguez, and Linson is GRANTED. All remaining pending motions are denied.