Opinion
NO. 3-02-CV-0270-M.
June 18, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Willie Frank Williams, Jr., an inmate in the TDCJ-ID, brings this federal civil rights action challenging the constitutionality of the Texas Sex Offender Registration Act ("SORA"), TEX. CODE CRIM. PROC. ANN. art. 62.01, et seq. (Vernon Supp. 2004), and the sex-offender conditions of his mandatory supervision. The case is before the court on cross-motions for summary judgment. For the reasons stated herein, both motions should be granted in part and denied in part.
I.
In February 1987, plaintiff was arrested and charged with aggravated robbery. (Plf. MSJ App. at 10, ¶ 2). While awaiting trial on that charge, plaintiff was involved in a fight with several other inmates at the Tarrant County Jail. Two prisoners were sexually assaulted during that altercation. ( Id.). Although plaintiff was originally charged with aggravated sexual assault, the indictment was amended to allege aggravated assault causing serious bodily injury. ( See Plf. First Am. Compl. at 7, ¶ 25 n. 1). Plaintiff pled guilty to the aggravated assault charge and was sentenced to two years confinement, to run concurrently with his 30-year sentence for aggravated robbery. (Plf. MSJ App. at 10, ¶ 2; see also id. at 15, 19-20).
On August 13, 1998, plaintiff was released from prison to mandatory supervision. One condition of his release, known as Special Condition X, prohibited plaintiff from:
1. Going in, on, or within 500 feet of premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility;
2. Supervising or participating in any program that includes participant or recipient persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities;
3. Operating, causing to operate, securing employment in, participating in, or attending, going in, on, or within 500 feet of any sexually oriented business, including adult bookstores, massage parlors, adult video stores, or any business that provides adult entertainment, such as nude or partially-nude service, dancing, or exhibition;
4. Residing with, contacting, or causing to be contacted, any person 17 years of age or younger, in person, by telephone, correspondence, video or audio device, third person, media, or any electronic means, without the approval of his supervising parole officer;
5. Dating, marrying, or establishing a platonic relationship with any person 17 years of age or younger, or with any person who has children 17 years of age or younger, without the approval of his supervising parole officer;
6. Having any unsupervised contact with persons 17 years of age or younger;
7. Possessing, purchasing, or subscribing to any literature, magazines, books, or videotapes that depict sexually explicit images;
8. Communicating with a person for sexually explicit purposes through telecommunications or any other electronic means, including 1-900 services;
9. Subscribing to, operating, using, or communicating on or by computer or otherwise Internet services, fax services, or electronic bulletin boards;
10. Owning, maintaining, or operating computer equipment without a declared purpose and authorization from his supervising parole officer; and
11. Owning, maintaining, or operating photographic equipment, to include instamatic, still photo, video, or any electronic imaging equipment.
( Id. at 36-37). Plaintiff also was required to submit to a psychological evaluation and participate in a sex-offender counseling program at his own expense. ( Id. at 37). In addition to these conditions, the certificate of mandatory supervision imposed Special Condition M, which required plaintiff to register as a sex offender under SORA. ( Id. at 7-9; see also Plf. First Am. Compl., Exh. B).
Special Condition X is a component of Super-Intensive Supervision Parole ("SISP") and may be imposed on high-risk releasees at the discretion of the Parole Board. By contrast, Special Condition M, which is authorized by SORA, should be imposed only pursuant to that statute. ( See Def. Supp. MSJ App., Exh. B).
As a consequence of his registration, certain personal information pertaining to plaintiff was published on the Texas Department of Public Safety ("DPS") Offender Registry website. (Plf. MSJ App. at 11, ¶ 7; see also id. at 27-30). Until February 2003, plaintiffs offense was listed on the website as "Aggravated Sexual Assault" and the victim was identified as a 17-year old male. ( See id. at 11, ¶ 7 28). Plaintiff believes that this entry created the false impression that he was serving a 30-year sentence for aggravated sexual assault, which has caused him to be "publicly humiliated and ostracized by society." ( Id. at 12, ¶¶ 9-10). By way of example, plaintiff alleges that he was verbally and physically threatened by his neighbors after his apartment manager posted flyers with his picture and identifying information on every door of the complex. ( Id. at 12, ¶ 11). Plaintiff also lost three jobs, was evicted from three different apartments, and was prohibited from pursuing a career in the computer industry as a result of his sex-offender classification. ( Id. at 12, ¶¶ 11-14).
On or about February 17, 2003, the offense data line on the DPS website was changed to read "Court/Board Ordered Registration" and information pertaining to the victim was deleted. ( See Plf. MSJ App. at 11, ¶ 9 30).
While on mandatory supervision, plaintiff was arrested and charged with possession of four grams of crack cocaine. His supervision was revoked on July 10, 2001, and plaintiff was returned to custody. In addition to the unexpired portion of his 30-year aggravated robbery sentence, plaintiff is now serving a 10-year sentence in the drug case. He is not eligible for release to mandatory supervision until February 6, 2011. ( See Plf. First Am. Compl. at 13, ¶ 48; Def. Supp. MSJ App., Exh. B).
On February 8, 2002, plaintiff filed this civil rights action against various state and local parole officials under 42 U.S.C. § 1983. In his most recent complaint, plaintiff alleges that his improper classification as a sex offender violates his rights to procedural and substantive due process, equal protection, and privacy under the Fourteenth Amendment to the United States Constitution. Plaintiff also sues for invasion of privacy, slander, and libel under Texas law. As relief, plaintiff seeks money damages and a permanent injunction prohibiting defendants and the State of Texas from classifying him, or any other person who does not have a sex-related conviction or adjudication, as a sex offender. The case is before the court on cross-motions for summary judgment. The issues have been fully briefed by the parties and the motions are ripe for determination.
Plaintiff filed this action pro se. In his original complaint, plaintiff sued three state parole officials and five state senators who sponsored the Texas sex-offender legislation. The claims against the legislators were dismissed as frivolous and plaintiff was allowed to prosecute his claims against the parole officials. See REP. REC. OF MAG. JUDGE, 3/19/02 at 3, adopted by ORDER, 4/11/02. Thereafter, the court appointed counsel to represent plaintiff. See ORDER, 1/8/03. On March 21, 2003, counsel filed an amended complaint naming Veronica Ballard, Bryan Collier, Thomas A. Davis, Gerald Garrett, Victor Rodriguez, Billy W. Linson, Iola Brown, Jan Lewis, Jeff McGuire, Dale Heisch, Oweida Carter, Charles Ward, and various unnamed parole officers and supervisors as defendants.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).When a case is presented to the court by way of cross-motions for summary judgment, each party has the burden of producing evidence to support its motion. Ghoman v. New Hampshire Insurance Co., 159 F. Supp.2d 928, 931 (N.D. Tex. 2001). The movant has the initial burden of showing the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All the evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements, hearsay, and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
SORA, originally enacted in 1991, requires a person who has a "reportable conviction or adjudication" of an enumerated sex-related offense, or who is "required to register as a condition of parole, release to mandatory supervision, or community supervision," to register with the local law enforcement authority of any county or municipality where the person resides or intends to reside for more than seven days. See TEX. CODE CRIM. PROC. ANN. art. 62.02(a). The failure to register constitutes a felony under state law. See id., art. 62.10(b). Law enforcement authorities are required to obtain certain information from a registrant with a reportable conviction or adjudication and forward that information to DPS for inclusion in its central database. See id., arts. 62.02(b) 62.08. DPS then publishes the information on its Internet website. Id., art. 62.045(d). This information includes the registrant's full name, date of birth, sex, race, height, weight, eye color, hair color, social security number, driver's license number, shoe size, and home address, as well as a recent color photograph, a complete set of fingerprints, and specific details pertaining to the offense. See id., art. 62.02(b). The public may access this information by entering a city or zip code. Id., art. 62.03(f).
It is undisputed that plaintiff does not have a "reportable conviction or adjudication" of an enumerated sex-related offense. However, as a condition of his release to mandatory supervision, plaintiff was required to register as a sex offender under SORA. Parole officials also required plaintiff to abide by certain special conditions typically reserved for sex offenders, such as: (1) avoiding contact with children; (2) prohibiting him from owning or operating a computer, accessing the Internet, or possessing pornographic materials; and (3) requiring him to undergo a psychological evaluation and participate in sex-offender counseling. Neither the statute nor Texas parole officials provided plaintiff with notice or an opportunity to be heard before these special release conditions were imposed. Thus, the issue squarely presented by this lawsuit, as briefed by the parties in their cross-motions for summary judgment, is whether the registration and public notification provisions of SORA and the other sex-offender conditions of plaintiff's mandatory supervision, either on their face or as applied to plaintiff, violate his constitutional rights to due process, equal protection, and privacy. If plaintiff establishes a constitutional violation, the court then must decide whether the individual defendants are entitled to qualified immunity and whether injunctive relief is proper.
"Reportable convictions or adjudications" under SORA include, inter alia, convictions for violations of Tex. Penal Code Ann. § 21.11 (indecency with a child), Tex. Penal Code Ann. § 22.011 (sexual assault), Tex. Penal Code Ann. § 21.021 (aggravated sexual assault), Tex. Penal Code Ann. § 25.02 (prohibited sexual contact), Tex. Penal Code Ann. § 43.05 (compelling prostitution), Tex. Penal Code Ann. § 43.25 (sexual performance by a child), and Tex. Penal Code Ann. § 43.26 (possession or promotion of child pornography). See TEX. CODE CRIM. PROC. ANN. art. 62.01(5).
A.
The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall deprive any person of life, liberty, or property without due process of law." U.S. CONST. amd. XIV. A fundamental component of due process is the opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). However, in order to prove a due process violation, plaintiff must first establish a cognizable liberty interest. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). It is well established that injury to reputation alone is not a protected liberty interest sufficient to invoke the procedural protections of due process. Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976); Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir. 1996). In order to establish a procedural due process violation, plaintiff must prove both that his classification as a sex offender was stigmatizing and that, as a result thereof, "a right or status previously recognized by state law was distinctly altered or extinguished." Paul, 96 S.Ct. at 1165. This is known as the "stigma-plus-infringement test." Vander Zee, 73 F.3d at 1369; Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995).
Classification as a sex offender clearly satisfies the stigma prong of this test. A statement is stigmatizing if it is both false and implies that the plaintiff is guilty of serious wrongdoing. Vander Zee, 73 F.3d at 1369; San Jacinto Savings Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991). Plaintiff's classification as a sex offender falsely suggests that he has been convicted of a sex-related offense. Indeed, the DPS website erroneously listed plaintiff's offense as "Aggravated Sexual Assault" and the victim as a 17-year old male. Nor can there be any doubt that this false classification imputes serious wrongdoing to plaintiff. See, e.g. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997); Doe v. Williams, 167 F. Supp.2d 45, 49 (D.D.C. 2001), rev'd on other grounds, 2003 WL 21466903 (D.C. Cir. Jun. 19, 2003); W.P. v. Poritz, 931 F. Supp. 1199, 1216-17 (D.N.J. 1996), rev'd on other grounds, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 118 S.Ct. 1039 (1998).
The more difficult question is whether plaintiff can show that his classification as a sex offender, and the imposition of release conditions typically reserved for sex offenders, deprived him of a right or status previously conferred by law. "[A] State creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). The statute at issue in this case, TEX. CODE CRIM. PROC. ANN. art 62.02(a), does not contain any specific criteria or standards governing when a person is required to register as a sex offender as a condition of parole, release to mandatory supervision, or community supervision. Nor do the parties cite to any state law limiting the discretion of parole officials to impose the requirements of Special Condition X on plaintiff, such as: (1) avoiding contact with children; (2) prohibiting him from owning or operating a computer, accessing the Internet, or possessing pornographic material; and (3) requiring him to undergo a psychological evaluation and participate in sex-offender counseling. The Supreme Court has recognized that states may impose restrictions on parolees that, in the absence of an underlying conviction, would clearly impinge on constitutional rights:
To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law upon an individual citizen. Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness.Morrissey, 92 S.Ct. at 2598. See also Johnson v. Rodriguez, 110 F.3d 299, 308-09 n. 13 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997) ("[A]llegations that the [Parole] Board considers unreliable or even false information in making parole determinations, without more, simply do not assert a federal constitutional violation."); Rollins v. Lewis, 2002 WL 318332 at *7 (N.D. Tex. Feb. 26, 2002), aff'd, 67 Fed.Appx. 251, 2003 WL 21195509 (5th Cir. May 7, 2003) (parole decision based on charge that was dismissed when parolee pled guilty to lesser offense did not violate due process). Thus, the issue becomes whether the conditions of plaintiff's release are either: (1) so severe that they, in effect, exceed the sentence imposed by the court, or (2) impose "atypical and significant hardships" in relation to the ordinary incidents of parole or mandatory supervision. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995).
Although Sandin addressed the liberty interests of incarcerated prisoners, "[p]arole is a variation on imprisonment of convicted criminals." Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 2020, 141 L.Ed.2d 344 (1998), quoting Morrissey, 92 S.Ct. at 2598. It therefore follows that Sandin applies in the parole context. See Thompson v. Cockrell, 263 F.3d 423, 425 (5th Cir. 2001) (applying Sandin to claim seeking sentence credit for time spent on mandatory supervision).
Judged against these standards, the court has little difficulty in concluding that at least some of the conditions imposed on plaintiff relating to his sex-offender status give rise to a constitutionally protected liberty interest. Requiring plaintiff to register as a sex offender and publishing his picture and personal information on a sex-offender website, even though he has no reportable conviction or adjudication under SORA, is an "atypical and significant hardship" exceedingly more burdensome than the standard conditions of parole placed on persons convicted of aggravated robbery. Plaintiff, who has never been convicted of a sex offense, has a liberty interest in not having his name and picture posted on a public website and being labeled as a sex offender. See Branch v. Collier, 2004 WL 942194 at *6 (N.D. Tex. Apr. 30, 2004). Moreover, SORA provides penalties that far exceed the mere failure to comply with the conditions of parole. Under Texas law, a parolee who violates the conditions of his release is returned to prison to serve out the remainder of his sentence. See TEX. GOV'T CODE ANN. § 508.283 (Vernon Supp. 2001); Haas v. Woods, 2003 WL 22327872 at *5 (N.D. Tex. Oct. 9, 2003). By contrast, a person who is required but fails to register as a sex offender under SORA commits a separate felony offense. See TEX. CODE CRIM. PROC. ANN. art. 62.10(b). Plaintiff also was required to participate in psychosexual counseling, which included the forced administration of smelling salts. ( See Plf. MSJ App. at 13, ¶ 17). "Compelled treatment in the form of mandatory behavior modification programs" implicates the constitutional right "to be free from . . . unjustified intrusions on personal security." Vitek v. Jones, 445 U.S. 480, 492, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980), quoting Ingram v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). The court therefore concludes that plaintiff has satisfied the infringement prong of the "stigma-plus-infringement test" with respect to the parole board's unilateral decision to require him to register as a sex offender under SORA and participate in a sex-offender counseling.
The other non-public sex-offender conditions of plaintiff's release do not impose "atypical and significant hardships" in relation to the ordinary incidents of parole supervision. Among the special conditions that do not implicate a liberty interest sufficient to give rise to a due process violation are: (1) avoiding contact with children; (2) prohibiting plaintiff from owning or operating a computer, accessing the Internet, or possessing pornographic material; and (3) requiring plaintiff to undergo a psychological evaluation. The imposition of those conditions are clearly within the discretion of the parole board. See Morrissey, 92 S.Ct. at 2598.
Plaintiff was never given notice or an opportunity to be heard on the conditions of his mandatory supervision. Because the conditions requiring plaintiff to register as a sex offender and participate in sex-offender counseling both stigmatized plaintiff and infringed on a constitutionally protected liberty interest, he has established a procedural due process violation. See Branch, 2004 WL 942194 at *6-8.
B.
The resolution of this issue pretermits consideration of plaintiff's other constitutional claims. However, the magistrate judge offers the following observations in the event either party seeks further review of this recommendation.
1.
In his amended complaint, plaintiff alleges that his improper classification as a sex offender and the related conditions of release violate his right to substantive due process under the Fourteenth Amendment. ( See Plf. First Am. Compl. at 19-23, ¶¶ 71). This substantive due process claim is not adequately addressed by either party in their summary judgment submissions. Therefore, the court is unable to recommend granting or denying either party's motion as to this claim.
2.
Plaintiff also asserts a claim under the equal protection clause. ( See id. at 24-25, ¶¶ 72-80). In order to prevail under this theory, plaintiff must show that: (1) SORA creates two or more classifications of parolees who are treated differently; and (2) the classifications have no rational relation to any legitimate governmental objective. Stefanoff v. Hays County, Texas, 154 F.3d 523, 526 (5th Cir. 1998), citing Johnson, 110 F.3d at 306-07. The statute creates two classifications of parolees who must register with law enforcement authorities — those who have been convicted of certain sex-related offenses and those who are required to register as a condition of their parole or mandatory supervision. See TEX. CODE CRIM. PROC. ANN. art. 62.02(a). Plaintiff maintains that he belongs to a "sub-classification" of parolees who have no sex offenses on their criminal record but are required to register as sex offenders as a condition of their release. (Plf. MSJ Br. at 20). Because such a distinction is not apparent from the face of the statute, plaintiff must demonstrate that parole officials "selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group." Johnson 110 F.3d at 307, quoting Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Plaintiff offers nothing to prove such purposeful discrimination. He merely contends that the statute is over-inclusive. This does not give rise to an equal protection claim. See Gwinn v. Awmiller, 354 F.3d 1211, 1228-29 (10th Cir. 2004) (classification as sex offender does not violate equal protection); Kirby v. Siegelman, 195 F.3d 1285, 1287 (11th Cir. 1999) (same); Cutshall v. Sundquist, 193 F.3d 466, 482-83 (6th Cir. 1999), cert. denied, 120 S.Ct. 1554 (2000) (same); Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999) (same); Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1267-68 (3d Cir. 1996) (same).
3.
Nor has plaintiff shown that he has a constitutional right to privacy in his photograph and personal identifying information. Although the Fourteenth Amendment protects an "individual interest in avoiding disclosure of personal matters," the Fifth Circuit has recognized that the contours of this right are "murky" and has cautioned lower courts against "trivializing the Fourteenth Amendment by making it a magnet for all claims involving personal information, state officers, and unfortunate indignities." Zaffuto v. City of Hammond, 308 F.3d 485, 489-90 (5th Cir. 2002). For this reason, the Fourteenth Amendment right to confidentiality is narrowly construed to protect only the most private and intimate facts. Id. Plaintiff's photograph, home address, and other identifying information do not fall within this category. See A.A. ex rel. M.M. v. State of New Jersey, 341 F.3d 206, 211-12 (3d Cir. 2003) (constitutional right to privacy not implicated by publication of information in sex offender registry); Cutshall, 193 F.3d at 481 (same); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997), cert. denied, 118 S.Ct. 1191 (1998) (same).
In support of his constitutional privacy claim, plaintiff relies on United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). However, that case involved personal information sought under the Freedom of Information Act.
IV.
Having determined that the sex-offender registration and mandatory counseling conditions imposed on plaintiff violate his right to procedural due process under the Fourteenth Amendment, the court must now decide whether the individual defendants are entitled to qualified immunity.
A.
Government officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority, unless their conduct violates a "clearly established statutory or constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A constitutional right is clearly established if "the contours of that right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This does not require proof that the specific conduct in question has been held unlawful in "fundamentally similar" or "materially similar" cases. Rather, the salient question is whether the state of the law at the time gives officials fair warning that their conduct is unconstitutional. Id., 122 S.Ct. at 2515-16, quoting United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219, 1226-27, 137 L.Ed.2d 432 (1997). Stated differently, "the right is clearly established if, based on pre-existing law, the unlawfulness of the conduct in question is apparent." Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000), cert. denied, 121 S.Ct. 2193 (2001). If the Supreme Court or Fifth Circuit has found a right to be clearly established, the inquiry ends there. Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995). If no such binding precedent exists, a right may still be clearly established if the decisions of other federal courts show "a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful." McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc), cert. denied, 123 S.Ct. 1355 (2003), quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 1700, 143 L.Ed.2d 818 (1999).
B.
Although plaintiff has established a procedural due process violation, it is apparent that this right was not clearly established in 1998 when he was released to mandatory supervision and required to register as a sex offender. At that time, only one federal appeals court had determined that classification as a sex offender implicated a due process liberty interest. See Neal, 131 F.3d at 828-30. Another Ninth Circuit panel decision decided that same year reached a contrary result. Russell, 124 F.3d at 1093-94. Even today, only one federal appellate court has held that a parolee's due process rights are implicated by sex-offender registration laws, and that decision was ultimately reversed by the Supreme Court. Doe v. Department of Public Safety, 271 F.3d 38, 57-59 (2d Cir. 2001), rev'd, 123 S.Ct. 1160 (2003). Clearly, there was no "consensus of cases of persuasive authority" such that a reasonable parole official could not have believed that his actions were lawful.
Neal can be distinguished from Russell based on the nature of the liberty interest involved. In Neal, the prisoner was required to successfully complete a sex-offender treatment program in order to be eligible for parole. The court concluded that this requirement was sufficiently similar to Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), to warrant some due process protection. See Neal, 131 F.3d at 830. By contrast, the parolees in Russell argued that the Washington community notification statue violated their right to privacy. The court concluded that the parolees had no such right in relation to information published in the sex offender registry and, thus, no corresponding liberty interest under the due process clause. Russell, 124 F.3d at 1094.
The Supreme Court reversed Doe on the ground that, even if the Connecticut sex-offender registration law violated due process, the petitioner was not entitled to a hearing to determine whether he was currently dangerous because such a determination was not relevant under the statutory scheme. Doe, 123 S.Ct. at 1164-65.
Plaintiff cites two cases from other jurisdictions in an attempt to show that defendants had "fair warning" that their actions were unconstitutional. The court initially observes that both cases, Chambers v. Colorado Department of Corrections, 205 F.3d 1237 (10th Cir.), cert. denied, 121 S.Ct. 391, and cert. denied, 121 S.Ct. 419 (2000), and Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999), were decided after plaintiff was required to register as a sex offender. Moreover, neither case is particularly helpful to plaintiff. The prisoner in Chambers lost accumulated good time credits when he refused to accept a sex-offender classification while incarcerated. Chambers, 205 F.3d at 1242-43. No comparable state-created interest exists in this case. In Kirby, the court appears to have found a due process violation on the basis of stigma alone. See Kirby, 195 F.3d at 1292. Such a holding is contrary to clearly established Fifth Circuit authority. Vander Zee, 73 F.3d at 1369.
Plaintiff has failed to prove that defendants violated a clearly established statutory or constitutional right of which a reasonable person would have known. Consequently, defendants are entitled to qualified immunity with respect to plaintiff's claim for money damages.
V.
Plaintiff also seeks injunctive and declaratory relief prohibiting defendants and the State of Texas from classifying him, or any other person who does not have a sex-related conviction or adjudication, as a sex offender. In order to obtain a permanent injunction, plaintiff must establish: (1) actual success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury to him outweighs the threatened injury to defendants; and (4) that the injunction does not harm the public interest. See Harris County, Texas v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999). The failure to establish any one of these factors if fatal to a claim for injunctive relief. Medlin v. Palmer, 874 F.2d 1085, 1091 (5th Cir. 1989).
Defendants are not entitled to qualified immunity with respect to plaintiff's claims for injunctive and declaratory relief. See Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996).
Here, plaintiff cannot demonstrate a substantial threat of irreparable injury if an injunction is not granted. The court initially observes that plaintiff's mandatory supervision was revoked on July 10, 2001-nearly seven months before this lawsuit was filed. At no time during the pendency of this action has plaintiff been under the supervision of state parole authorities or been required to participate in sex-offender counseling. Therefore, injunctive relief is not proper with respect to that condition. Subsequent to his re-incarceration and until recently, plaintiff continued to be listed on the DPS sex-offender website. However, defendants have advised the court that, as a matter of policy, they will no longer impose the Special Condition M sex-offender registration requirements on parolees unless they have a qualifying conviction specifically listed in SORA. ( See Def. Supp. MSJ App., Exhs. A B). Because plaintiff does not have a qualifying conviction, he will not be required to register as a sex offender if and when he is released from prison. ( Id., Exh. B). This change in policy effectively moots plaintiff's claim for injunctive relief.
The court reaches a different conclusion with respect to plaintiff's request for declaratory relief. A district court should normally entertain a declaratory judgment action within its jurisdiction when it finds that the relief sought: (1) will serve a useful purpose in clarifying and settling the legal relations in issue; and (2) will terminate and afford relief from uncertainty, insecurity, and controversy giving rise to the proceeding. St. Paul Fire Marine Ins. Co. v. Tug East Coast, 2002 WL 1906912 at *4 (E.D. La. Aug. 20, 2002), quoting Continental Casualty Co. v. Fuscardo, 35 F.3d 963, 965 (5th Cir. 1994). Such is the case here. Although defendants have represented that plaintiff and other persons who do not have qualifying convictions under SORA will no longer be required to register as sex-offenders as a condition of their parole or mandatory supervision, a judicial declaration to that effect will help enforce that policy and afford relief from the uncertainty, insecurity, and controversy giving rise to this proceeding. Id. Accordingly, plaintiff is entitled to a declaratory judgment that the registration and public notification requirements of SORA are unconstitutional as applied to him and to other persons who have no reportable conviction or adjudication of an enumerated sex-related offense and who have not been given notice or an opportunity to challenge the requirements of the statute. See Branch, 2004 WL 942194 at *8.
VI.
Finally, plaintiff sues for invasion of privacy, libel, and slander under Texas law. A federal court has broad discretion in deciding whether to exercise supplemental jurisdiction over state law claims after all federal claims have been dismissed. 28 U.S.C. § 1367(c)(3); see also Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). Among the factors to be considered in exercising this discretion are judicial economy, convenience, fairness, federalism, and comity. See Rosado v. Wyman, 397 U.S. 397, 403-04, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970). When all federal claims are dismissed prior to trial, these factors weigh heavily in favor of declining to exercise jurisdiction. See Bunch v. Duncan, 2002 WL 324287 at * 4 (N.D. Tex. Feb. 27, 2002), quoting Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendant are dismissed."). Accordingly, plaintiff's state law claims should be dismissed without prejudice.
RECOMMENDATION
Defendants' motion for summary judgment and plaintiff's motion for summary judgment should be granted in part and denied in part. Plaintiff's motion should be granted with respect to his procedural due process claim and corresponding request for declaratory relief. Defendants' motion should be granted with respect to plaintiff's other constitutional claims, their qualified immunity defense, and plaintiff's request for injunctive relief. In all other respects, the summary judgment motions should be denied.
Plaintiff's federal civil rights claims against defendants should be dismissed with prejudice. His state claims for invasion of privacy, libel, and slander should be dismissed without prejudice. The court should declare that the registration and public notification requirements of SORA are unconstitutional as applied to plaintiff and to other persons who have no reportable conviction or adjudication of an enumerated sex-related offense and who have not been given notice or an opportunity to challenge the requirements of the statute.
A copy of this recommendation shall be sent to all counsel of record. Any party may file written objections to the recommendation by July 2, 2004. The failure to file written objections shall 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 Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).