Clarence D. BROWN, Plaintiff-Appellant v. Allison TAYLOR, In Her Individual Capacity; Marsha McLane, In Her Official Capacity as Executive Director, OVSOM; Diana Lemon, In Her Official and Individual Capacity as Program Specialist/Case Manager OVSOM; Brian Costello, In His Official and Individual Capacity as President, Avalon Correctional Services; Office of Violent Sex Offender Management; Avalon Correctional Services, Incorporated; Carlos Morales, In His Official and Individual Capacity as Facility Director, Defendants-Appellees
No. 14-50388
United States Court of Appeals, Fifth Circuit.
Filed January 31, 2017
924 F.3d 924
Before JONES, BARKSDALE, and COSTA, Circuit Judges.
Gonzalez‘s remaining claims have either previously been deemed by this court to be abandonеd due to a failure to brief or are raised for the first time on appeal. Thus, we decline to address them. See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (appellant abandons a claim on appeal when he fails to identify any error in the district court‘s analysis); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (this court will not allow a party to raise a claim for the first time on appeal).
CONCLUSION
For these reasons, we VACATE the order of dismissal as to prescription and REMAND for further proceedings; we do not reach the qualified immunity issue; and in all other respects, the judgment is AFFIRMED.
William Reynolds Biggs, Fort Worth, TX, Ze-wen Julius Chen, Raymond P. Tolentino, Akin Gump Strauss Hauer & Feld, L.L.P., Washington, DC, for Plaintiff-Appellant
Craig McCam Jacobs, Assistant Attorney General, Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendants-Appellees Allison Taylor, Marsha McLane, Officе of Violent Sex Offender Management
Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendant-Appellee Diana Lemon
Daniel H. Hernandez, Esq., Ray, McChristian & Jeans, P.C., El Paso, TX, Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendants-Appellees Brian Costello, Avalon Correctional Sеrvices, Incorporated, Carlos Morales
GREGG COSTA, Circuit Judge:*
I.
Clarence D. Brown was convicted in Texas state court of sex offenses. While Brown was serving his sentence for those convictions, the state initiated civil commitment proceedings against him under the Texas Sexually Violent Predator Act,
At that time, the Act provided that an individual determined to be likely to commit future acts of sexual predation should be committed “for outpatient treatment and supervision” to be coordinated by the Texas Office of Violent Sex Offender Management (OVSOM).1
Brown‘s original Order of Commitment, issued under the old statute, mandated that he “reside in supervised housing at a Texas residential facility under contract with [OVSOM] ... or at another location or facility approved by [OVSOM],” not contact a victim or potential victim, “submit to tracking under a global positioning satellite (GPS),” and “exactingly participate in and comply with the specific course of treatment provided by [OVSOM] and ... comply with all written requirements of the [OVSOM] and case manager.” See
Brown has been in OVSOM custody since he completed his prison term. OVSOM first placed him in an El Paso multi-use facility operated by a contractor, Avalon Correctional Services, Inc. Brown was later moved to an Avalon facility in Fort Worth. Brown nоw resides under OVSOM supervision in a facility in Littlefield not operated by Avalon.
Brown brought this lawsuit in the Western District of Texas against Allison Taylor, former Executive Director of OVSOM, in her individual capacity; Marsha McLane, Executive Director of OVSOM, in her official capacity; and Diana Lemon, a program specialist/case manager with OVSOM, in her official and individual capacities (the OVSOM Dеfendants). He also sued Avalon, its president Brian Costello, and Carlos Morales, a facility administrator with Avalon (the Avalon Defendants).2 The complaint asserts fourteen claims related to Brown‘s time at the El Paso facility. These include allegations that Brown was “forced to live in prison-like facilities with conditions more punitive than those in prison,” “housed in dorms with parolees/prisonеrs” in “squalid,” “inhumane” conditions, and subjected to the same intense scrutiny and rules as prisoners. The complaint seeks a declaration that the civil commitment statute and conditions of Brown‘s confinement are unconstitutional or otherwise illegal, an injunction barring Defendants from engaging in any of the complained of conduct, and damages.
The district court dismissed the complaint with prеjudice, concluding that it lacked jurisdiction over about half of the claims under the Rooker-Feldman doctrine because they were inextricably intertwined with the state court‘s Order of Commitment. The court dismissed all remaining claims as precluded by a prior judgment in the Northern District of Texas. In that case, involving similar allegations against the same defendants (excluding Avalon) but related to the time Brown spent at both the Fort Worth and El Paso facilities, the court had dismissed the complaint for failure to state a claim sua sponte and with prejudice. Brown v. Taylor, 2013 WL 1104268, at *1, *4 (N.D. Tex. Mar. 14, 2013), vacated 829 F.3d 365 (5th Cir. 2016).
Brown appealed the judgments in the Northern District of Texas case and in this one. While the present appeal was pend-
II.
The district court found it lacked jurisdiction over six claims under Rooker-Feldman. Applying de novo review, we conclude that the doctrine does not apply. See Truong v. Bank of Am., N.A., 717 F.3d 377, 381 (5th Cir. 2013).
Unless Congress specifies otherwise, only the Supreme Court may review a final judgment of a state court. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983) (citing
The Supreme Court has found jurisdiction precluded by this “narrow” doctrine only twice. Exxon Mobil, 544 U.S. at 283-84. Once when parties defeated in state court alleged an “adverse state-court judgment was rendered in contravention of the Constitution” and asked a federal court to declare that judgment “null and void.” Id. at 284 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-15 (1923)). And once when a party asked a federal court to overturn a state court‘s determination that he could not be granted an exception to state bar admission rules. Id. at 285 (citing Feldman, 460 U.S. at 465-73). Even then, the Supreme Court did not find jurisdiction lacking over all of the plaintiff‘s claims; the district court could hear a challenge to the constitutionality of the bar admission rules as they were not the product of judicial action. Feldman, 460 U.S. at 482-83.
Because Brown‘s claims neither assert as a legal wrong nor invite direct review and rejection of the state court‘s Judgment and Order of Commitment, Rooker-Feldman does not prevent review. Most of the claims dismissed under Rooker-Feldman challenge conditions of Brown‘s confinement imposed by Defendants, not the state court. The state court‘s Order does not require Defendants to restrain Brown in squalid, prison-like conditions, force him to share facilities with parolees, or subject him to the same intensive scrutiny as parolees (Claim 3). It does not address whether Defendants must deprive Brown of access to mail or personal prop-
Defendants argue that the claims nonetheless are barred because the state court committed Brоwn to OVSOM supervision and ordered that he comply with OVSOM rules. Under Defendants’ theory, by doing so, the state court immunized OVSOM rules and all actions taken in supervising Brown from federal district court review, no matter how OVSOM or its agents treated Brown or what rules they decided to impose. That would stretch Rooker-Feldman well beyond its narrow bounds. Regardless of the state court‘s directive that Brown “exactingly ... comply with” OVSOM rules and written rеquirements, Defendants exercised discretion in establishing the challenged conditions of Brown‘s confinement, and thus the Rooker-Feldman doctrine “has no application.” Verizon, 535 U.S. at 644 n.3.
Claims 10 and 13 have more of a relationship to the state court‘s Order but still are not fairly read as challenging it or requiring its review or rejection. The district court described Claim 10 as an allegation that Defendants “deprived [Brown] of his property interests by imposing the costs of [GPS] trаcking on him without allowing him to work.” In accordance with
Finally, Claim 13 alleges that Brown was “charged with minor violations and returned to prison” in order to “make room for new civil commit[s]” because there “are significantly more civil[ly] committed persons tha[n] there are beds in civil commitment.” This appears to relate to the provision in the Order giving Brown noticе that if he did not comply with directives from treatment providers, he would “be charged with a felony of the third degree.”3 This penalty comes from
The Rooker-Feldman doctrine therefore does not bar review of Claims 3, 4, 6, 10, 12, and 13.
III.
The district court dismissed Brown‘s remaining claims as precluded because the Northern District of Texas had entered a final judgment on the mеrits of those claims in a case with the same named parties. In light of our court‘s subsequent decision vacating that judgment, Defendants concede that dismissal of the claims in this case should be reversed. We agree. See Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 546 (5th Cir. 2001) (holding that “res judicata no longer binds” the court when the judgment with preclusive effect has been vacated), abrogated on other grounds by Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014); RESTATEMENT (SECOND) OF JUDGMENTS § 16 cmt. c (1982).
We note, however, that thе Northern District of Texas has now entered a new judgment in the related case, which Brown has appealed. We urge the parties and the district courts to consider procedural devices such as transfer and consolidation that could minimize the inefficiency and complication caused by two ongoing cases arising out of the same facts.
IV.
In light of our determination that neither Rooker-Feldman nor res judicata suppоrted dismissal, Defendants urge us to consider other possible grounds for affirming. One is mootness. Since Brown filed this lawsuit, the statutory amendments we discussed have been enacted, changing some aspects of Brown‘s confinement. And OVSOM has relocated Brown out of an Avalon facility. When a controversy “has resolved to the point that [the parties] no longer qualify as adverse parties with sufficiеnt legal interests to main-
Some of the relief Brown requested may no longer be available. It appears the Avalon Defendants no longer control conditions of Brown‘s confinement and are unlikely to regain such control, so that requests for prospective relief against them are likely moot. Seе Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (dismissing as moot inmate‘s claim for declaratory and injunctive relief when inmate had been transferred from the offending facility). OVSOM still exercises authority over Brown, but the revised statute has changed the terms of Brown‘s confinement so that some prospective relief Brown seeks (such as enjoining enforcement of the prior Act‘s now repealed criminal penalty provision or imрosing its repealed mandate that Brown be given outpatient treatment) likely is no longer available even against those defendants. We note, however, that Brown‘s complaint contains more than four pages of requested relief, and we cannot conclude at this stage that all requests for injunctive relief are moot. For example, the amended statute still requires Brоwn to defray the costs of his GPS tracking, a requirement Brown seeks to enjoin.
Regardless of what prospective relief remains viable, Brown‘s claims are not moot because he requests damages. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 (5th Cir. 2009). Of course, some Defendants sued in their official capacities may be entitled to Eleventh Amendment immunity from damages. See Will v. Mich. Dep‘t of State Police, 491 U.S. 58, 71 (1989); Ex Parte Young, 209 U.S. 123, 167 (1908). But most of the OVSOM Defendants are also sued in their individual сapacities, and the Avalon Defendants have no claim to invoke immunity under the Eleventh Amendment. Richardson v. McKnight, 521 U.S. 399, 412 (1997).4 Because the Eleventh Amendment does not bar all of Brown‘s claims for damages, his request for nominal damages means the entire case is not moot. Duarte ex rel. Duarte v. City of Lewisville, Tex., 759 F.3d 514, 521 (5th Cir. 2014) (noting that we have “consistently held that a claim for nominal damages avoids mootness“). In light of that, it makes sense to allow the district cоurt on remand to sort out which claims for injunctive relief may be moot and which claims for damages are barred by the Eleventh Amendment. Id. at 521 n.4 (remanding for district court to consider whether requests for injunctive relief were moot given holding that request for nominal damages defeated mootness); see Powell v. McCormack, 395 U.S. 486, 496, 496 n.8 (1969) (finding that because a claim for back salary remained viable it was “unnecessary to determine whether ... other issues ha[d] become moot” and remanding for further consideration of mootness).
Defendants urge us to affirm on yet another ground: that Brown failed to state a claim under Rule 12(b)(6). Especially in light of the number of claims alleged, however, Defendants inadequately briefed this issue. The OVSOM Defendants devote just one, necessarily conclusory, sentence to the topic. Thе Avalon Defendants do a bit more, but still spend only a page seeking a merits ruling on fourteen claims. This is inadequate for us to rule on a ground for dismissal in the first instance. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010); U.S. ex rel. Farmer v. City of Hous., 523 F.3d 333, 345 (5th Cir. 2008) (Jones, J., concurring in part and dissenting in part) (urging that the court take “a more cautious approach” to affirming on alternative grounds). Initial review of the merits by a trial court is especially helpful in cases with numerous аnd complex issues. Lone Star Nat. Bank, N.A. v. Heartland Payment Sys., Inc., 729 F.3d 421, 427 (5th Cir. 2013).
VI.
Because the judgment of the district court is vacated, the “strike” the district court imposed under the three strikes provision of the Prison Litigation Reform Act is reversed. See Mayfield v. Tex. Dep‘t of Criminal Justice, 529 F.3d 599, 617 (5th Cir. 2008). We further note that whatever the outcome on remand, the three strikes provision does not apply to Brown as a civilly committed detainee.
***
The judgement of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.