Johnson v. RodriguezJohnson v. Rodriguez
In this class action by Texas prisoners, defendants-appellants, the chairmen and members of the Texas Board of Pardons and Paroles and of the Texas Board of Criminal Justice, in their official capacities, appeal the judgment below declaring certain aspects of the Texas parole scheme violative of prisoners’ federal constitutional rights of equal protection and access to the courts. Also appealed is the subsequent award of attorneys’ fees to plaintiffs’ counsel. We reverse the magistrate judge‘s findings of constitutional violations, vacate the award of attorneys’ fees, and remand this case with instructions.
Facts and Proceedings Below
Daniel Johnson, an inmate of the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID), filed this lawsuit pro se and in forma pauperis on February 26, 1985. His initial complaint, thrice amended, was dismissed by the district court upon the recommendation of a magistrate judge for failure to state a claim and to exhaust state remedies. This Court reversed and remanded, observing that Johnson‘s allegations raised “suggestions of invidious, group-based discriminаtion and infringement of fundamental rights.” Johnson v. Pfeiffer, 821 F.2d 1120, 1122-1123 (5th Cir.1987) (Johnson I). After discussing the shortcomings of his complaint, we ordered that on remand Johnson be allowed an opportunity to amend to clarify the factual and legal basis of his claims. Id. at 1123-1124. We expressly reserved opinion as to whether he could even state a claim, much less prove one. Id. at 1123.
On remand, the district court appointed counsel to assist Johnson in preparing his Fourth Amended Complaint, which was filed on September 7, 1988. This complaint asserted several purported causes of action under
On February 11, 1992, the magistrate judge, after finding that Johnson adequately represented a class comprised of all present and future inmates of the TDCJ-ID, certified this litigation as a class action limited to prospective relief only. A bench trial was held on June 9-12 and June 23-26, 1992, and July 16, 1992. On November 1, 1995, the magistrate judge issued a memorandum opinion granting Johnson and the prisoner class prospective relief on the protest letter and writ-writing claims. On December 1, 1995, the magistrate judge issued an amended memorandum opinion clarifying aspects of his prior opinion but ordering essentially the same system-wide relief.2 Johnson v. Texas Dept. of Criminal Justice, 910 F.Supp. 1208 (W.D.Tex.1995) (Johnson II). On April 30, 1996, the magistrate judge issued another memorandum opinion and order awarding the plaintiffs attorneys’ fees in the amount of $959,361.77, expenses and costs in the amount of $35,261.86, and post-judgment interest. Defendants timely appeal judgment on the merits and the award of attorneys’ fees.3
Discussion
I. The Texas Parole System—an Overview
The legislative parameters of the Texas parole system are established in large measure by Texas Code of Criminal Procedure article 42.18. Under this statute, the Board of Pardons and Paroles (Board) is the exclusive authority for determining whether qualified prisoners receive parole.4
The statute also states that the Board “shall develop and implement pаrole guidelines” based on “the seriousness of the offense and the likelihood of favorable parole outcome.”
The Board generally executes its statutory mandate in three-member panels. The particularities of the parole review process are recited in the magistrate judge‘s opinion:
“Most inmates are reviewed for parole consideration by a panel of three [members of the Board]. The first panel member often (but not always) interviews the inmate at the institution and writes a summary of the interview for inclusion in the inmate‘s parole file. The first panel member then ‘votes the case’ by indicating on the docket sheet in the file whether he or she favors release on parole. The second panel member then receives the file and votes the case without an interview. If the first two panel members disagree, the file then goes to the third member for the dispositive vote. If the first two panel members agree, the case does not go to the third member.
If the panel votes against release on parole the inmate receives a form notice from the Board listing reasons for the unfavorable decision. If the panel votes in favor of release, the inmate is notified of that fact and is told that the decision is tentative and may be rescinded, depending upon the Board‘s further investigation.
The inmate receives a notice known as an ‘F.I.’ (further investigation). At a point in time roughly contemporaneous with the panel‘s consideration of an inmate‘s case, the Board sends out notification to the persons entitled to receive notice under the statute.” Johnson II, 910 F.Supp. at 1216.
Generally, the parole panel‘s review is guided in large part by the contents of the prisoner‘s parole file. Subsection 8(e) of article 42.18 directs that the prisoner‘s parole file include the “victim impact statement” and “any written comments or information provided by local trial officials or victims of the offense.” Thus, relevant correspondence, pro or con, from any and all interested parties may be received and considered by a parole panel; correspondence from “local trial officials” and “victims” must be included in the prisoner‘s parole file, while the “victim impact statement” must be considered in making the ultimate parole determination. Regardless of what circumstances must be considered in a parole hearing, the ultimate result (parole or denial) is a matter left completely to the parole panel‘s discretion.
Subsection 8(e) also provides that the parole file contain “all pertinent information relating to the prisoner, including but not limited to,” a sentencing report, the circumstances of the prisoner‘s offense, records of the prisoner‘s prior social and criminal history, physical and mental health records, and reports reflecting the prisoner‘s conduct, employment, and attitude while incarcerated. The statutory language makes it clear that this listing is not exhaustive, i.e., information other than that mandated by subsection 8(e) may appear in a prisoner‘s parole file.6 Finally, under subsection 18(a) of article 42.18 the contents of the prisoner‘s parole file are confidential and privileged and therefore generally inaccessible to the prisoner.7
II. Protest Letters
A. The Issue
Johnson8 challenges the statutory requirement and perceived Board custom of accepting and considering “protest letters” in the parole process. Johnson claims that these letters, which include statements from victims, prosecutors, law enforcement personnel and the general public opposing the prisoner‘s parole, often contain inaccurate information about the prisoner‘s background or the circumstances of his or her offense. Furthermore, much of the information submitted in these letters bears no relationship to the “two statutory factors,” i.e., the likelihood of harm to the public and the likelihood of a favorable parole outcome, which the Board is purportedly required to consider in making parole determinations. Johnson submits that the resultant system is arbitrary and capricious and treats prisoners who are the target of protest letters differently from prisoners who do not receive protest letters.
The magistrate judge found, after reviewing testimony from both prisoners and Board members, that “inmates who receive protest letters of any kind are treated differently from inmates who do not.” Johnson II, 910 F.Supp. at 1218. He continued by noting that the Board has no promulgated rule or articulated policy regarding the verification or consideration or effect of protest letters. Id. at 1218-1219. The magistrate judge further found that these letters, in some instances spawned by vindictiveness or political pressure, often contain inaccurate statements of faсt or discuss unadjudicated offenses. Id. at 1219-1220.
The magistrate judge began his legal analysis by correctly noting that Texas law does not create a liberty interest in parole and accordingly Johnson could not state a claim for a Due Process violation based upon the Board‘s procedures. Allison v. Kyle, 66 F.3d 71 (5th Cir.1995); Orellana v. Kyle, 65 F.3d 29 (5th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996); Gilbertson; Creel; Williams v. Briscoe, 641 F.2d 274 (5th Cir.), cert. denied, 454 U.S. 854, 102 S.Ct. 299, 70 L.Ed.2d 147 (1981). The magistrate judge did, however, accept Johnson‘s argument that prisoners who receive protest letters constitute a governmental classification for Equal Protection purposes. Johnson II, 910 F.Supp. at 1221. After conducting an extensive analysis of the legislative scheme set out by
“The Court hereby determines that the statutory scheme under which the Board can accept statements, whether written or oral, and then prevent knowledge of said statements’ existence and prohibit disclosure of their contents and of the writer‘s or
speaker‘s identity, violates the equal protection rights of inmates because the Board, as a rule, denies parole to inmates who have received protest statеments. The Board‘s sole function is to determine whether an inmate should be released on parole; its function is not to effectively re-try the case by accepting ‘testimony’ which was inadmissible at trial on evidentiary grounds (or would have been inadmissible had introduction been attempted) or was excluded as part of trial strategy, or by entering findings which the actual jury did not find at the inmate‘s trial. Evidentiary determinations are to be made in the trial court. The Board is not to consider unadjudicated offenses or offenses extraneous to the conviction for which the inmate is currently incarcerated. The Board must be bound by the conviction which the inmate received and must apply the statutory requirements regarding the time to be served on parole for that conviction, without adding ad hoc information which results in additional time being served.” Id. at 1228-1229 (footnote omitted).
The magistrate judge ordered that the Board adopt a rule providing that both written and oral protest statements “shall not be accepted or considered” by parole panels “for any purpose when making parole decisions” and “shall not be placed in the inmate‘s file.” Id. at 1229.
C. Analysis
“The Fourteenth Amendment‘s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that mоst legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, — U.S. —, —, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (citations omitted). Thus, “a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Rather, as long as they do not burden a fundamental right or target a suspect class, “state agencies may pursue legitimate purposes by any means having a conceivable rational relationship to those purposes.” Stern v. Tarrant County Hosp. Dist., 778 F.2d 1052, 1054 (5th Cir.1985) (en banc), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986).
Even the deferential “rational basis” scrutiny which is applied to ordinary governmental classifications is not appropriate, however, when the challenged law does not create any classifications at all. As we have previously stated, “if the challenged government action does not appear to classify or distinguish between two or more relevant persons or groups, then the action—even if irrational—does not deny them equal protection of the laws.” Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988) (citation omitted). Thus, when we are confronted with a state action which does not so classify or distinguish, we need not consider whether there is a “rational basis” for that action because such state actions are not subject to Equal Protection scrutiny. Vera v. Tue, 73 F.3d 604, 609-610 (5th Cir.1996), citing Brennan, 834 F.2d at 1257.
State actors may сreate classifications facially, when such categorization appears in the language of legislation or regulation, see, e.g., McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973) (“[t]he determination of an optimal time for parole eligibility elicited multiple legislative classifications and groupings“), or de facto, through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group. The Supreme Court has instructed us time and again, however, that disparate impact alone cannot suffice to state an Equal Protection violation; otherwise, any law could be challenged on Equal Protection grounds by whomever it has negatively impacted. See Washington v. Davis, 426 U.S. 229, 246-250, 96 S.Ct. 2040, 2051-2052, 48 L.Ed.2d 597 (1976). Thus, a party who wishes to make out an Equal Protection claim must prove “the existence of purposeful discrimination” motivating the state action which caused the complained-of injury. McCleskey v. Kemp, 481 U.S. 279, 292-293, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987) (citation omitted); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Davis, 426 U.S. at 238-240, 96 S.Ct. at 2047. “Discriminatory purpose in an equal protection context implies that the decisionmaker 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.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.1995), quoting United States v. Galloway, 951 F.2d 64, 65 (5th Cir.1992).
The existence of a discoverable group or classification antedating the challenged state action is a sine qua non for proving purposeful discrimination; it cannot tenably be maintained that the state selected a particular course of action to harm an “identifiable group” when that body did not exist until after the state acted. In this case, there is no basis for discerning any such preexisting “identifiable group.” The magistrate judge found that a class composed of those prisoners who received protest letters was denied equal treatment by the Texas statutes authorizing the receipt, use, and confidentiality of protest letters. The challenged laws, however, do not discriminate among prisoners; they apply to all prisoners equally and impact the prison population in a manner which the magistrate judge himself correctly described as “unpredictable.” Johnson II, 910 F.Supp. at 1226-1227 (“[o]bviously, an inmate‘s potential for receiving protest letters is unpredictable“). Such a finding of “unpredictability” negates any argument that the Texas Legislature or the Board intended that the use of protest letters evidenced by this record detrimentally impact any particular identifiable segment of the prison population.10 Because Johnson has failed to demonstrate that the State‘s action targeted a discernible sub-class among the general prison population, the magistrate judge‘s ruling must be reversed.
Moreover, thе magistrate judge, incorrectly perceiving an Equal Protection question before him, also failed to properly consider Texas’ justification for the protest letter scheme before finding an Equal Protection violation. See Bowen v. Owens, 476 U.S. 340, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986). Under the rational basis scrutiny which the magistrate judge should have undertaken if, as he incorrectly assumed, the protest letter issue was properly resolvable under an Equal Protection analysis, it was merely necessary to determine whether “the classification at issue bears some fair relationship to a legitimate public purpose.”11 Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). The magistrate judge‘s opinion, however, dwells upon the nature of the “evidence” which the Board considers, the inability of prisoners to examine and rebut such evidence, and the possibility that false information will enter the prisoner‘s parole file by way of a protest letter.12 In so
The protections of the Due Process Clause are only invoked when State procedures whiсh may produce erroneous or unreliable results imperil a protected liberty or property interest. See Olim v. Wakinekona, 461 U.S. 238, 250-251, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983); Jago, 454 U.S. at 16-18, 102 S.Ct. at 34; Meachum v. Fano, 427 U.S. 215, 223-225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Jay v. Boyd, 351 U.S. 345, 352-361, 76 S.Ct. 919, 924-928, 100 L.Ed. 1242 (1956). It is therefore axiomatic that because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds. Allison; Orellana; Gilbertson; Creel. Accord, Hill v. Jackson, 64 F.3d 163 (4th Cir.1995); O‘Kelley v. Snow, 53 F.3d 319 (11th Cir.1995); McCall v. Delo, 41 F.3d 1219 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 2623, 132 L.Ed.2d 865 (1995); Malek v. Haun, 26 F.3d 1013 (10th Cir.1994); Phillips v. Brennan, 969 F.2d 384 (7th Cir.1992), cert. denied, 506 U.S. 1057, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993); Brandon v. D.C. Board of Parole, 823 F.2d 644 (D.C.Cir.1987); White v. Hyman, 647 A.2d 1175 (D.C.C.A.1994); State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 630 N.E.2d 696 (1994). Were we to allow Johnson‘s Equal Protection challenge in the absence of any showing of de jure or de facto governmental classification, we would be in effect endorsing, under the aegis of “Equal Protection,” the general federal constitutional right to be free from arbitrary and capricious state action which our procedural Due Process precedents eschew. Irving v. Thigpen, 732 F.2d 1215, 1218 (5th Cir.1984) (where Mississippi parole law does not create a protected liberty interest, a prisoner “cannot maintain a section 1983 action or a habeas petition on the grounds that the parole board deprived him of procedural due process“) (citations omitted). Johnson‘s allegations that the Board considers unreliable or even false information in making parole determinations, without more, simply do not assert a federal constitutional violation.13
“A violation of the equal protection clause occurs only when, inter alia, the governmental action in question classifies between two or more relevant persons or groups.” Vera, 73 F.3d at 609-610. Johnson has failed to demonstrate this necessary predicate to his claim.14 We therefore reverse the magistrate judge‘s contrary ruling and order that on remand the protest letters claim be dismissed with prejudice.
III. Writ-Writing
A. The Issue
Johnson is a “writ writer,” which is generally understood to mean a prisoner who files lawsuits, and/or assists other prisoners in the preparation or prosecution of lawsuits, usually against prison (or sometimes jail) authori
B. The Magistrate Judge‘s Ruling
Reviewing the evidence, the magistrate judge found that writ writing activities were often discussed in parole interviews and that documentation of these activities often appeared in parole files. Johnson II, 910 F.Supp. at 1214. The magistrate judge also found that prisoners were entitled to assist other prisoners in preparing writs and other legal documents. Id. at 1213. After noting that “historically there has been a bias against inmates considered to be writ writers” by the TDCJ-ID, the magistrate judge concluded that this bias “restricts, at least as a practical matter, an inmate‘s access to the courts.” Johnson II, 910 F.Supp. at 1212. He likewise opined that “[a]ny distinction made between inmates who seek access to the courts and those who do not violates the equal protection clause.” Id. at 1213 (emphasis added). Later in his opinion the magistrate judge clarified his findings of injury, stating that “this perception of retaliation has сhilled, at least to some extent, inmates’ exercise of their constitutionally protected right of access to the courts.” Id. at 1215 (footnote omitted).
The magistrate judge ordered the Board to adopt by rule a policy “that prohibits consideration of inmates’ exercise of the constitutionally protected right of access to the courts” and “shall specify that such activity is wholly irrelevant to the parole decision making process.” Johnson II, 910 F.Supp. at 1215. He further required that this rule “shall establish specific, enforceable sanctions for all violations” thereof. Id. In addition, the order required that “[a]ll existing [inmate] files be reviewed for and purged of any and all documentation related to an inmates’ litigation activity as the specific inmate becomes eligible for [parole] review. Only upon written request of an inmate shall any litigation material or information be included or retained in his or her parole file.” Id. (emphasis added).
C. Analysis
1. The Retaliation Theory
The elements of a claim under a retaliation theory are the plaintiffs invocation of “a specific constitutional right,” the defendant‘s intent to retaliate against the plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., “but for the retaliatory motive the complained of incident ... would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995) (citations omitted), cert. denied, — U.S. —, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). In this case, Johnson must prove that he and other prisoners engaged in constitutionally protected litigation activity, were denied parole, and that such action was taken “in an effort to chill [prisoners‘] access to the courts or to punish them for having brought suit.” Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th Cir.), cert. denied, 513 U.S. 926, 115 S.Ct. 312, 130 L.Ed.2d 275 (1994). See also Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1114 (5th Cir.1987). The relevant showing in such cases must be more than the prisoner‘s “personal belief that he is the victim of retaliation.” Edwards, 51 F.3d at 580.
It has long been recognized that prisoners generally enjoy a constitutional right of access to the courts. See Johnson v. Avery, 393 U.S. 483, 483-485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969); Ex parte Hull, 312 U.S. 546, 547-549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). This right of access for prisoners is not unlimited, however; rather, it encompasses only “a reasonably adequate
In concluding that the prisoners’ constitutional right of access to the courts had been violated, the magistrate judge plainly considered, and proceeded throughout on the assumption, that any and all prisoner writ writing or litigation activity was constitutionally protected. At no point did he ever distinguish between frivolous filings and secondary litigation activity on the one hand and protected filings of at least arguable merit on the other.16 Almost all of the prisoners who testified alluded to participation in numerous lawsuits.17 In the absence of detailed infor
While the magistrate judge‘s use of an improper and overly inclusive legal standard (viewing any and all writ writing as constitutionally protected) alone requires reversal, we also note other inadequacies in the findings on which the judgment below depends. Because this is an official capacity lawsuit, it is a condition precedent to liability under section 1983 that the challenged conduct of the individual Board members be tied to an official Board custom or policy, formal or informal. Kentucky v. Graham, 473 U.S. 159, 165-167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Polk County v. Dodson, 454 U.S. 312, 325-327, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). While the magistrate judge did observe that “writ writing activities are frequently discussed in parole interviеws and that documentation of such activities frequently appears in inmates’ parole files,” Johnson II, 910 F.Supp. at 1214, he made no finding that these actions were sufficiently widespread and approved to represent the implementation of an official formal or informal custom or policy of the Board. See Ruiz v. Estelle, 679 F.2d 1115, 1154 (5th Cir.1982) (citation omitted) (“systemwide injunctive relief may not be predicated on individual misconduct that ‘is not part of a pattern of persistent and deliberate official policy‘“), opinion amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982), cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). In the absence of this threshold finding, the imposition of liability, under either a retaliation or an equal protection theory, was premature.
Furthermore, while we do not directly address the sufficiency of the evidence to support the magistrate judge‘s finding that there has historically been a bias against writ writers by employees of the Texas prison system, we nonetheless express concern over the magistrate judge‘s reliance, both expressly and through apparent reliance on witness testimony, upon findings associated with the hallmark Texas prison litigation case of Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), aff‘d in part, rev‘d in part, 679 F.2d 1115 (5th Cir.1982), opinion amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982), cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). Johnson II, 910 F.Supp. at 1212 n. 12. The findings involved in that case were made more than a decade and a half ago and involved the day-to-day administration of penal institutions run by the predecessor of the TDCJ-ID, not the parole system which is the object of this litigation. Findings that in the past (or present), employees of other state departments or agencies have exhibited a bias against writ writers do not support a conclusion that the defendants in this case, members of the
In addition, we hold that the magistrate judge‘s findings of causation are inadequate because the mere consideration of litigation activities, even if such activities are protected under Lewis and Tighe, does not in and of itself make out Johnson‘s retaliation claim. Johnson II, 910 F.Supp. at 1215-1216 n. 17. There must be a finding, adequately supported by the evidence, that pursuant to an established policy or custom (formal or informal), the Board retaliated against writ writers for engaging in protected activity by withholding parole. The causative component of this claim is an adequately supported finding that the Board‘s policy or custom actually played a part in its denial of parole to Johnson (and other writ writers) and that but for the Board‘s policy or custom Johnson (and other writ writers) would not have been denied parole.19 Nowhere, however, does the opinion below make any such determination. Rather, the magistrate judge‘s opinion merely makes several references to instances where litigation activities appeared in parole files or were raised in interviews, and discusses the prisoners’ perception of a linkage between parole denial and prisoner litigiousness. There is no finding whatever that adverse consideration of writ writing by the Board actually played a part in its denial of parole to any particular inmate (or any identified group of inmates). The absence of such a finding is especially significant given the background of Johnson and the other testifying prisoners, which raises substantial doubt as to whether this record would adequately support such a finding.20
Finally, we regard the evidence cited by the magistrate judge to demonstrate the “chilling” of protected rights system-wide as inadequate. In support of his finding, the magistrate judge noted only the testimony of two witnesses: the first, a single prisoner who once refused to receive legal mail because of his own, self-generated personal belief that this would improve his chances of obtaining parole; the second, a staff attorney for the 14th District Court of Appeals in Houston, Texas, who related double hearsay statements purportedly originating from unidentified prisoners regarding their having “dismissed appeals of their own convictions,” supposedly for parole-related reasons.21
In sum, we conclude that due to the application of an improper legal standard concerning the extent to which the right of access to the courts protects particular litigation activities of prisoners, the judgment finding merit in Johnson‘s retaliation claim must be reversed and remanded for further consideration. On remаnd, findings must be made regarding the extent to which Johnson, the only named plaintiff, has engaged in constitutionally protected litigation activities and whether a Board custom or policy (formal or informal) authorizing or endorsing punitive retaliation for that protected activity actually played a part in its denial of his parole.23
If Johnson is found to have suffered redressable injury in his capacity as class representative, particularized findings will also be needed regarding the nature and scope of the litigation activities and constitutionally cognizable injuries, if any, suffered by contemporary class members. Any conclusion that there is an actionable class injury sufficiently widespread to warrant systemic relief, whether under a retaliation theory or an equal protection theory, must rest on substantially more than the historical findings of other courts, such as the Ruiz court, and the subjective perceptions of class members. Lewis, — U.S. at —, 116 S.Ct. at 2184. Finally, any relief ordered under any theory is to be narrowly confined to remediation of any proven constitutional violation; no ordered relief may prohibit the Board‘s consideration of frivolous lawsuits or other nonprotected litigation activities in making parole determinations.
2. The Equal Protection Theory
The generally applicable legal standards are noted in our discussion under subpart II(C), supra. And, much of what we have said regarding the writ writer retaliation theory is likewise applicable to the writ writer equal protection theory, including the fact, fatal to the judgment below, that the magistrate judge proceeded on the erroneous assumption that any and all writ writing was constitutionally protected. We assume, arguendo, that a viable sub-class of the prison population—i.e. those who engage in constitutionally protected writ writing—may be shown.24 To properly prove his claim under this theory, Johnson had to show that because of his constitutionally protected writ writing “he was treated unfairly compared to other prisoners who were [otherwise] similarly situated.” Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir.1985) (citation omitted). The magistrate judge stated that “[a]ny distinction made between inmates who seek access to the courts and those who do not violates the equal protection clause.” Johnson II, 910 F.Supp. at 1213.
However, the magistrate judge made no finding that in the case of Johnson, or of any other specific inmate, adverse consideration by the Board of his writ writing—much less his constitutionally protected writ writing—actually played a part in its denial of parole to him. Nor does the evidence show this. Further, nо findings were made respecting the treatment meted out by the Board to comparable segments of the nonlitigious prison population, and the record does not provide an adequate basis for any such finding. There is no statistical or similar evidence whatever in the record comparing the parole rates of litigious and nonlitigious prisoners, let alone a comparison of those who engage in constitutionally protected writ writing and those who do not. Even were Johnson able to show that the Board had a largely negative view of writ writing in general, he does not appear to have demonstrated any actual “disparate” impact upon any “class” of those engaging in constitutionally protected writ writing. McCleskey, 481 U.S. at 292-293, 107 S.Ct. at 1767 (part of Equal Protection challenge is proof that “purposeful discrimination ‘had a discriminatory effect’ “), quoting Wayte v. United States, 470 U.S. 598, 608-609, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985).
We further note that although litigation related activity tangentially defines the pa
We accordingly reverse and remand the magistrate judge‘s ruling on the “writ writer” claim.
IV. The Attorneys’ Fee Award
Because the magistrate judge‘s judgment has been reversed, Johnson can no longer be considered a “prevailing party” entitled to attorneys’ fees.
Conclusion
The magistrate judge‘s ruling on the protest letter claim is reversed and on remand that claim shall be dismissed with prеjudice. The magistrate judge‘s judgment on the writ writer claim is reversed and remanded for reconsideration and/or further proceedings in accordance herewith. The magistrate judge‘s award of attorney‘s fees is vacated.
REVERSED in PART; VACATED in PART; and REMANDED.
Notes
The magistrate judge also found, relying upon Cook v. Tex. Dep‘t of Criminal Justice Planning Dep‘t, 37 F.3d 166, 168-169 (5th Cir.1994), that the Board could not consider unadjudicated offenses in parole hearings. Johnson II, 910 F.Supp. at 1229 n. 73. Cook, however, dealt with the particular circumstance of prior convictions which this Court had previously set aside on the basis of federal constitutional violatiоns, and stands only for the unremarkable rule that when a conviction has been thus judicially nullified a prisoner may obtain an order enjoining use of the voided conviction in a parole hearing, and might even be seen essentially as a federal court enforcing its own prior order. See Bloodgood v. Garraghty, 783 F.2d 470 (4th Cir.1986) (holding parole board has no duty to examine validity of prisoner‘s convictions); United States v. Francischine, 512 F.2d 827, 828 (5th Cir.) (same), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). In the absence of such a circumstance, there is nothing delimiting the Board‘s consideration of prior offenses, adjudicated or unadjudicated.
Additionally, although not relied upon by Johnson, the Fourth Circuit in Paine v. Baker, 595 F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979), developed a tripartite test to determine when “false information” should be expunged from prison records. Monroe discussed Paine in passing and concluded that language in Paine indicating a “due process right to be fairly considered for parole” had been invalidated by the Supreme Court‘s subsequent decision in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Monroe, 932 F.2d at 1440-1441 n. 8. In addition, although Paine has not been expressly overruled, subsequent Fourth Circuit cases reflecting this Circuit‘s view certainly undercut any contention that the Paine analysis is still viable in the circuit which initially formulated it. See, e.g., Hill, 64 F.3d at 170-171. Those courts that continue to give lip service to Paine have practically emasculated it by reading its third requirement, that the information be relied upon to a constitutionally significant degree, in tandem with subsequent jurisprudence recognizing that there is no procedural Due Process protection for procedures which are unrelated to a protected liberty interest. See Pruett v. Levi, 622 F.2d 256 (6th Cir.1980); James; McCrery v. Mark, 823 F.Supp. 288 (E.D.Penn.1993); Goldhardt. Contrast Lowrance v. Coughlin, 862 F.Supp. 1090, 1099 (S.D.N.Y.1994) (stating that the Southern District of New York has recognized а constitutional right to accurate information in a parole file).
It is our view that the procedural Due Process protections created in Monroe and Paine are in essence inconsistent with subsequent precedent in their respective circuits and that both cases have thus been effectively overruled. Whatever the viability of these anomalous cases today, our precedent is definite and precise on this point: in the absence of a cognizable liberty interest, a state prisoner cannot challenge parole procedures under the Due Process Clause.
Moreover, we expressly reserved judgment, stating: “We intimate, of course, no opinion concerning the possibility of his stating a claim for which relief might be granted, or, if he does, the merits of that claim.” Id. at 1123. (Emphasis added).“In an effort to support the district court‘s judgment regarding the Parole Board‘s ‘discretionary’ use of protest letters on grounds not stated by that court, the defendants suggest that Johnson has failed to allege sufficient facts to state a claim. Noting that the fourteenth amendment guarantees ‘equal laws, not equal results,’ they argue that a rule permitting such discretion, if applied evenly, presents no constitutional problem. We agree, but note that Johnson‘s allegations do raise suggestions of invidious, group-based discrimination and infringement of fundamental rights.” Id. at 1122-23 (footnote omitted).
Because the Johnson I court‘s remand depended upon assumptions concerning the identity of the group being discriminated against which are inapposite to the findings below, and because Johnson I in any event expressly reserved judgment as to whether a claim could even be stated, that opinion is not inconsistent with our holdings today.
From our appellate review over the years of very large numbers of Texas prisoner suits, we know that a great many—perhaps the overwhelming majority or even almost all—of them have been without arguable merit.
We are not unmindful that “[a]n action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate.” Woods, 60 F.3d at 1165. The situation of pretext, however, concerns the existence of retaliatory motivation, not causation. Unless the complained-of action would not have taken place ”but for” the retaliatory animus, then the retaliation claim has not been made out. Id. at 1166. Moreover, there must be a finding that retaliation was actually a “but for” cause of the complained of action (denial of parole). Cf. St. Mary‘s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (in claim for discriminatory discharge, there must be finding that discharge would not have occurred but for discriminatory animus, not merely that employer‘s stated nondiscriminatory reasons were pretextual).
There is no evidence or finding that direct appeal of one‘s own conviction was regarded by anybody as “writ writing.” Johnson in his brief states that “[t]he term writ writer refers to inmates who file or assist others in filing law suits, including writs of habeas corpus and attacks on conditions of confinement, seeking injunctive relief or monetary damages.” There is no evidence as to whether or not the Board had any policy or practice to postpone either consideration of parole or the gathering of information for parole consideration purposes until the conviction resulting in the incarceration from which the inmate might be paroled became final on direct appeal. We observe that prisoners whose sentences are ten years or less remain in local custody pending completion of direct appeal unless they request or consent to transfer to TDCJ-ID. See
In sum, the testimony of the staff attorney is essentially irrelevant. Moreover, it is far too attenuated and weak—speaking at most to her conclusory impression of why less than 1.5 percent of criminal direct appeals were voluntarily dismissed in a two-year period—to support any finding of a general chilling effect respecting writ writing.
Justice Blackmun stated that he agreed “with nearly all that Mr. Justice Powell has to say in his detailed and persuasive concurring opinion.” Id. at 249, 93 S.Ct. at 2059. This portion of Justice Powell‘s Schneckloth concurrence was cited with approval in Kuhlmann v. Wilson, 477 U.S. 436, 451-453, 106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986).“At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen.” (Footnote omitted).