Doe v. Abbott

945 F.3d 307

John DOES 1-7, individually and on behalf of all others similarly situated, Plaintiff - Appellant

v.Greg ABBOTT, Governor of the State of Texas; Steven McCraw, Colonel, Director of the Texas Department of Public Safety, Defendants - Appellees

No. 18-11620

United States Court of Appeals, Fifth Circuit.

FILED December 16, 2019

Terence Estes-Hightower, Estes-Hightower, P.L.L.C., Houston, TX, for Plaintiff-Appellant.

Rance Craft, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Michael Abrams, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendant-Appellees.

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

PER CURIAM:

The Appellants, John Does One through Seven, are registered sex offenders who appeal the dismissal for failure to state a claim of their challenges to the Texas Sex Offender Registration Program. We AFFIRM.

I. Background

The Texas Sex Offender Registration Program is codified at Chapter 62 of the Texas Code of Criminal Procedure. Its registration requirements apply retroactively to all persons with a "reportable conviction or adjudication occurring on or after September 1, 1970," for several enumerated sex offenses. TEX. CODE CRIM. PROC. ANN. arts. 62.001(5), .002(a).

Chapter 62 imposes various requirements on registrants. A few are especially relevant to this case. Most registrants are assigned a "risk level" of "one (low)," "two (moderate)," or "three (high)" using an "objective point system." Id. arts. 62.007, .053(a), (c). The "risk assessment review committee," a court, or a state corrections agency may override a risk level only if it believes that the assigned level does not accurately predict the registrant’s risk to the community. Id. art. 62.007(d). Registrants must report in person at varying intervals depending on their offenses to verify their information. Id. arts. 62.058(a), .202. A registrant that intends to move, whether within or outside the state, must report in person within seven days before and after moving. Id. art. 62.055(a). The statute also prohibits registrants from living on the campus of an institution of higher education unless they are low-risk and the institution assents. Id. art. 62.064. The duty to register generally lasts for ten years after specified events of adjudication, but certain serious offenses can lead to lifetime registration. Id. art. 62.101.

The Does are men listed in the Texas sex-offender registry because of convictions that occurred before 2017, when Chapter 62 was last amended. They filed suit in the Northern District of Texas against Greg Abbott, Governor of Texas, and Colonel Steven McCraw, Director of the Texas Department of Public Safety.¹ The Does challenged Chapter 62 under 42 U.S.C. § 1983 on several constitutional grounds.² The district court dismissed all the Does’ claims with prejudice under both Federal Rule of Civil Procedure 12(b)(1) for lack of standing to bring the claims against Abbott and Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Does #1–7 v. Abbott , 345 F. Supp. 3d 763, 784 (N.D. Tex. 2018).

The Does timely appealed challenging only the Rule 12(b)(6) dismissal of four of their facial challenges:³ that Chapter 62 violates (1) the Due Process Clause by classifying sex offenders into three tiers of present dangerousness with insufficient procedural due process, (2) the Ex Post Facto Clause by imposing additional punishment for offenses committed before the 2017 amendments to Chapter 62, (3) the Eighth Amendment by imposing "excessive and arbitrary" punishment, and (4) the Double Jeopardy Clause by imposing additional punishment after sentencing requirements have been completed.

II. Standard of Review

"We review de novo a district court’s dismissal under Rule 12(b)(6), accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff." Sullivan v. Leor Energy, LLC , 600 F.3d 542, 546 (5th Cir. 2010). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. Discussion

We have previously held that constitutional challenges to Chapter 62 on ex post facto , Eighth Amendment, due process, and other similar grounds either are frivolous or fail to state a plausible claim. Procedural due process challenges fail because conviction of a sex offense entails all requisite process for the state to impose sex-offender conditions.⁴ Conn. Dep’t of Pub. Safety v. Doe (CDPS ), 538 U.S. 1, 6–8, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) ; Meza v. Livingston , 607 F.3d 392, 401 (5th Cir. 2010). Ex post facto , Eighth Amendment, and double jeopardy challenges do not cross the minimum pleading threshold because Chapter 62 is nonpunitive.⁵ None of the arguments in this case steer us in a different direction.

A. Procedural Due Process Claims

The district court dismissed the Does’ procedural due process claim, citing two unpublished opinions of our court. Abbott , 345 F. Supp. 3d at 777–78 (citing Hollier v. Watson , 605 F. App'x 255, 258 n.12 (5th Cir. 2015) (per curiam); King v. McCraw , 559 F. App'x 278, 283 (5th Cir. 2014) (per curiam)). These two opinions relied on Meza v. Livingston , in which we held, "When an individual is convicted of a sex offense, no further process is due before imposing sex offender conditions." 607 F.3d at 401 (citing CDPS , 538 U.S. at 7–8, 123 S.Ct. 1160 ). Because the Does stated in their complaint that Chapter 62’s "[t]ier classifications are based solely on the offense(s) of conviction," the district court held that the Does "show[ed] that they have already been afforded all that due process requires." Abbott , 345 F. Supp. 3d at 778.

When a state interferes with a liberty interest, "the procedures attendant upon that deprivation [must be] constitutionally sufficient." Ky. Dep’t of Corr. v. Thompson , 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Even assuming for the sake of argument that a convicted sex offender has a liberty interest in being free from registration as such,⁶ it is settled that conviction or similar adjudication of a sex offense supplies sufficient due process for the imposition of sex offender conditions, including registration. See CDPS , 538 U.S. at 6–8, 123 S.Ct. 1160 ; Meza , 607 F.3d at 401. "The individual convicted of a sex crime in a prior adversarial setting, whether as the result of a bench trial, jury trial, or plea agreement, has received the minimum protections required by due process." Meza , 607 F.3d at 401 (internal quotation marks omitted). Therefore, when a registry’s requirements "turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest"—persons convicted of sexual offenses are owed no additional process.⁷ CDPS , 538 U.S. at 7–8, 123 S.Ct. 1160 ; see Meza , 607 F.3d at 401.

The Does argue that the classification of present risk provided for in Chapter 62 compels additional process. But they stated in their complaint to the district court that the "classifications are based solely on the offense(s) of conviction," and they did not argue otherwise in district court.⁸ They have therefore waived any argument that risk classifications are not based solely on the fact of conviction. See N. Alamo Water Supply Corp. v. City of San Juan , 90 F.3d 910, 916 (5th Cir. 1996) ("We will not consider an issue that a party fails to raise in the district court, absent extraordinary circumstances."). In light of this waiver, we consider only the arguments before the district court on these issues and, based upon those arguments, hold that the Does have been afforded enough due process to be placed under Chapter 62’s strictures, including risk-level designation. CDPS , 538 U.S. at 6–8, 123 S.Ct. 1160 ; Meza , 607 F.3d at 401.

We also reject the Does’ contention that Chapter 62 fails the stigma-plus test from Paul v. Davis , 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). To show a due process violation under this theory, "a section 1983 plaintiff [must] show stigma plus an infringement of some other interest." Blackburn v. City of Marshall , 42 F.3d 925, 935–36 (5th Cir. 1995). "[T]he infliction of a stigma on a person’s reputation by a state official, without more, does not infringe upon a protected liberty interest." Id. (citing Paul , 424 U.S. at 710–11, 96 S.Ct. 1155 ). Instead, "we have found sufficient stigma only where a state actor has made concrete, false assertions of wrongdoing on the part of the plaintiff ." Blackburn , 42 F.3d at 936. When a sex offender is required to register or is assigned a risk level, there is no false assertion of fact, and thus there is no stigma. See Ex parte Robinson , 80 S.W.3d 709, 714 (Tex. App—Houston [1st Dist.] 2002), aff’d , 116 S.W.3d 794 (Tex. Crim. App. 2003).

As for the infringement component, "[n]either harm to reputation nor the consequent impairment of future employment opportunities are constitutionally cognizable injuries." Vander Zee v. Reno , 73 F.3d 1365, 1369 (5th Cir. 1996) (citing Siegert v. Gilley , 500 U.S. 226, 233–35, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ). The Does identify no direct infringement on the part of the state, but only secondary harms resulting from their placement on the registry, such as housing and lending hardships. They have therefore failed to show a due process violation under the stigma-plus test.

Because the Does fail to state a plausible due process claim, we affirm the district court’s dismissal of that claim.

B. Ex Post Facto , Eighth Amendment, and Double Jeopardy Claims

The district court addressed the Does’ ex post facto , Eighth Amendment, and double jeopardy claims collectively...