     Case: 13-10588   Document: 00513587652     Page: 1   Date Filed: 07/12/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                 No. 13-10588                            FILED
                                                                     July 12, 2016
                                                                    Lyle W. Cayce
CLARENCE D. BROWN,                                                       Clerk

             Plaintiff - Appellant

v.

ALLISON TAYLOR, In Her Official and Individual Capacity as Executive
Director, Office of Violent Sex Offender Management; DIANA LEMON, In
Her Official and Individual Capacity as Program Specialist/Case Manager
Office of Violent Sex Offender Management; BRIAN COSTELLO, In His
Official and Individual Capacity as President, Avalon Correctional Services,
Incorporated; GREG BASHAM, In His Official and Individual Capacity as
Facility Administrator, Avalon Correctional Services, Incorporated; CARLOS
MORALES, In His Official and Individual Capacity as Facility
Administrator, Avalon Correctional Services, Incorporated; TARRANT
COUNTY; MONTGOMERY COUNTY,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Clarence Brown appeals the sua sponte dismissal of his complaint, with
prejudice and without notice and an opportunity to comment. We VACATE
and REMAND.
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                                       No. 13-10588
                                     I. Background
       Clarence Brown was convicted in Texas state court of one count of
aggravated assault on a peace officer and three counts of sexual assault, and
was sentenced to fifteen years in prison. Before Brown was released from
prison, the state initiated civil commitment proceedings against him under the
Texas Sexually Violent Predator Act (“SVPA”), Tex. Health & Safety Code
§ 841.041. 1 A jury found that he had a behavioral abnormality that made him
“likely to engage in a predatory act of sexual violence,” and the trial court
entered a final judgment ordering Brown civilly committed. In re Commitment
of Brown, No. 09-10-00589-CV, 2012 WL 4466348, at *1 (Tex. App.—Beaumont
Sept. 27, 2012). The order was affirmed on appeal. Id.
       The SVPA (at all relevant times) 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 a case manager
with the Texas Office of Violent Sex Offender Management (“OVSOM”). Tex.
Health & Safety Code § 841.081. Brown was required to comply with the
“specific course of treatment provided by the office” and all written
requirements of the office or his individual case manager. Id. § 841.082(a)(4).
Failure to comply with any requirement was at that time punishable as a third-
degree felony. Id. § 841.085(a)–(b).
       Brown alleges that he was initially transferred in 2011 to a facility in El
Paso County run by Avalon Correctional Services. Brown claims that his
complaints about mistreatment at that facility caused Avalon to transfer him
to another facility in Fort Worth in 2012. Upon arrival at this second facility,
Brown was told that he had to sign a statement acknowledging his


       1As Brown points out, the SVPA was amended in 2015. Those amendments are not
relevant to this case, however, and references in this opinion are to the version in force from
2003 until June 16, 2015, the timeframe encompassing the events in this appeal.
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understanding of facility rules. He alleges that he asked for clarification on the
rules, but Avalon employees at the facility refused to provide further
information, insisting that he sign—per the facility’s rules. Brown refused, and
was arrested on charges of violating the terms of his civil commitment.
      Brown filed suit under 42 U.S.C. § 1983 in federal court on October 1,
2012. He described the above course of confinement and alleged various forms
of mistreatment, including, among others, poor conditions and a failure to
provide reasonable medical care. He further alleged that he had been
improperly denied contact with friends and family, denied access to a law
library, and subjected to a variety of other wrongs.
      After filing this suit, Brown was found not guilty of violating the terms
of his commitment, and transferred from the Tarrant County Jail to the
Southeast Texas Transitional Center (“STTC”) in Houston, an OVSOM
contractor. After this transfer, he supplemented his complaint a number of
times, adding claims and new prayers for injunctive relief. The district court
reviewed the supplemented complaint and dismissed it, sua sponte and with
prejudice, on March 14, 2013. Brown was not given notice or an opportunity to
respond. He filed a Rule 59(e) motion to alter the judgment, which the district
court denied. The district court received Brown’s 59(e) motion 29 days after the
order of dismissal was entered. Rule 59(e) allows only 28 days to file a motion,
however, the district court did not resolve the matter on this basis. Brown
timely appealed.
      On appeal, this court noted the late filing of the Rule 59(e) motion as a
potential jurisdictional problem. See Brown v. Taylor, 569 F. App’x 212, 213
(5th Cir. 2014) [hereinafter Brown I] (unpublished). This court noted that
appellate jurisdiction turned on whether the “prisoner mailbox rule”
announced in Houston v. Lack, 487 U.S. 266, 270–71 (1988), applied to render
Brown’s late-filed Rule 59(e) motion timely. If it did, the motion would have
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been deemed filed on the day that Brown turned it over to STTC authorities,
rendering his eventual notice of appeal timely. Brown I, 569 F. App’x at 213–
14. But the record lacked findings on the extent of Brown’s confinement under
the civil commitment program. This court therefore remanded the case to the
district court “for the limited purpose of making factual findings regarding the
extent of Brown’s confinement and Brown’s ability to file pleadings at the time
he filed his Rule 59(e) motion.” Id. at 214.
      On remand, the district court took briefing and evidence from Brown, the
Texas Attorney General’s office, and STTC. Brown filed objections to STTC’s
affidavit, acknowledging that there were mailboxes available at the sites that
he was authorized to visit, but claiming that he was prohibited by OVSOM
regulation from utilizing those mailboxes because he was only allowed to
engage in the “business that was [his] sole purpose for going to” a given place.
The district court made extensive factual findings responsive to the Brown I
remand order, whereafter we appointed appellate counsel to represent Brown
in appearance in this court. After briefing and oral argument, we conclude that
the prisoner mailbox rule applied to Brown, hence we VACATE the district
court’s sua sponte dismissal of Brown’s complaint with prejudice and REMAND
for further proceedings.
                                  II. Discussion
A. The prisoner mailbox rule rendered Brown’s 59(e) motion timely
      The prisoner mailbox rule announced in Houston provides that a pro se
inmate’s notice of appeal is deemed filed on the date that the inmate gives the
notice to prison authorities to be sent to the relevant court. 487 U.S. at 270–
71. Houston’s holding was eventually codified in Rule 4(c) of the Federal Rules
of Appellate Procedure, which states that “[i]f an inmate confined in an
institution files a notice of appeal in either a civil or a criminal case, the notice
is timely if it is deposited in the institution’s internal mail system on or before
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                                       No. 13-10588
the last day for filing.” Fed. R. App. P. 4(c)(1). Federal courts, including our
court, have extended Houston’s rationale to apply to a variety of other filings
by pro se prisoners. 2
       We held in Brown I that the prisoner mailbox rule applies to Rule 59(e)
motions, 3 and the law of the case doctrine applies. See Musacchio v. United
States, 136 S. Ct. 709, 716 (2016) (“[W]hen a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages
in the same case.” (quoting Pepper v. United States, 562 U.S. 476, 506, (2011))).
The record in Brown I was insufficiently developed for us to determine whether
the prisoner mailbox rule applied to Brown, so we remanded to the district
court to make factual findings on the extent of Brown’s confinement and his
ability to file pleadings at the time he filed his Rule 59(e) motion. Brown I, 569
F. App’x at 214. If the mailbox rule applies, Brown’s motion, received a single
day late, is presumed timely. See United States v. Young, 966 F.2d 164, 165
(5th Cir. 1992).
       “The prison mailbox rule applies to prisoners who are proceeding pro se.
When a litigant is not incarcerated, however, the prison mailbox rule does not
apply.” Brown I, 569 F. App’x at 213 (citation omitted). When Brown filed his
Rule 59(e) motion he was civilly committed under the SVPA. While was no
longer incarcerated pursuant to a criminal conviction, he was not a free man.
Given our holding in Brown I, the question is whether Brown was functionally
a prisoner for the purpose of the mailbox rule: based on the district court’s
factual findings, we conclude that he was.




       2 See Spotville v. Cain, 149 F.3d 374, 376–77 (5th Cir. 1998) (collecting and discussing
cases in which this and other courts have extended the holding in Houston).
       3 See also Sandoval v. Houston, 131 F.3d 141 (5th Cir. 1997) (unpublished); Gann v.

Johnson, 116 F.3d 476 (5th Cir. 1997) (unpublished).
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       While not a prisoner under the Texas Department of Criminal Justice,
Brown was civilly committed, requiring him to remain at the STTC twenty-
four hours a day, seven days a week. Brown was only allowed to leave STTC
with specific, pre-approved, written permission by his case manager or a
program specialist. To ensure compliance, Brown was required to submit to
GPS tracking. In the three-month period ending with Brown’s Rule 59(e)
submission, February–April 2013, the district court found that Brown was only
permitted to leave STTC on six occasions: twice to use the law library, and
four trips to the hospital. 4
       The district court also found that (1) both the law library and hospital
that Brown visited had a U.S. Postal mailbox in the lobby and that (2) STTC
maintains an internal mailbox for the use of its residents. Neither of these
findings changes our analysis. First, OVSOM “Supervision Requirements”
specifically prohibited Brown from engaging in any business at a given location
save for the sole business authorized by his case manager. Thus, under
OVSOM rules—and a failure to follow the rules “may result in legal action,” as
Brown’s own case demonstrates—he was prohibited from using the mailboxes
at the hospital and library, even if he was physically capable of doing so.
Second, the internal mail system here is indistinguishable from that in
Houston. STTC staff collected prisoner mail from the internal mailbox and
gave it to the U.S. Postal Carrier. In Houston, prisoners gave their notice of
appeal to prison authorities to forward to the court, and the Supreme Court
held that a prisoner “filed” his notice when “he delivered the notice to prison
authorities.” 487 U.S. at 270. This is because prisoners could not “take the


       4This fits with Brown’s unchallenged assertion that he was on “level II” confinement
during the relevant time period. Brown provided the court with an OVSOM “Policy and
Procedure” document describing its different levels of supervision. Level Two “clients,”
according to the policy, “shall be permitted to leave the residence or residential facility to
receive medical attention, meet registration requirements, and attend treatment.”
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steps other litigants can take to monitor the processing of [his] notices of appeal
and to ensure that the court clerk receives and stamps [his] notices of appeal
before the . . . deadline.” Id. at 270–71. So too, here. Perhaps most importantly,
Brown—like the prisoner in Houston—could not “personally travel to the
courthouse to see that the notice is stamped ‘filed’ or to establish the date on
which the court received the notice.” Id. at 271. Rather, Brown, as a pro se civil
detainee, had “no choice but to entrust the forwarding of his [Rule 59(e) motion]
to [STTC] authorities whom he cannot control or supervise and who may have
every incentive to delay.” Id. Given the level of Brown’s confinement and his
inability to file his Rule 59(e) motion himself, the prisoner mailbox rule as
invoked in Brown I applied and his Rule 59(e) motion was timely.


B. The district court’s sua sponte dismissal of Brown’s complaint was error
      The district court dismissed Brown’s complaint sua sponte, with
prejudice and without notice and an opportunity to respond. When a party like
Brown proceeds in forma pauperis, the district court has the power on its own
motion to dismiss the case for failure to state a claim. 28 U.S.C.
§ 1915(e)(2)(b)(ii). But this power is cabined by the requirements of basic
fairness: a district court may only dismiss a case sua sponte after giving the
plaintiff notice of the perceived inadequacy of the complaint and an
opportunity for the plaintiff to respond. See, e.g., Davoodi v. Austin Indep. Sch.
Dist., 755 F.3d 307, 310 (5th Cir. 2014).
      This rule against no-notice sua sponte dismissal is subject to two
exceptions: if the dismissal is without prejudice, or if the plaintiff has alleged
his best case. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). The
dismissal here was with prejudice, so the first exception is inapplicable. The
“best case” exception stems from Jacquez v. Procunier, 801 F.2d 789, 793 (5th
Cir. 1986) and is, as this court has since clarified, narrow. The key factors in
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Jacquez were that the plaintiff had (1) “repeatedly declared the adequacy of
that complaint in a lengthy response to defendant’s motion to dismiss,” and (2)
“refused to file a supplemental complaint even in the face of a motion to
dismiss.” Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007).
Neither factor was present here. Brown did not receive notice that his
complaint might be inadequate, much less an opportunity to amend it or argue
against that characterization. Nothing in the record allows us to infer that
Brown could not or would not amend his complaint to allege more specific facts
had the district court informed him of such a deficiency.


                               III. Conclusion
      For the foregoing reasons, though we express no opinion on the merits of
Brown’s complaint, we VACATE the district court’s order dismissing Brown’s
complaint with prejudice and REMAND for further proceedings.




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