     Case: 10-10294 Document: 00511460123 Page: 1 Date Filed: 04/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 28, 2011

                                       No. 10-10294                         Lyle W. Cayce
                                                                                 Clerk

MARCUS PRINCE,

                                                   Plaintiff-Appellant
v.

TIM CURRY, District Attorney; TARRANT COUNTY TEXAS; RISSI
OWENS, Chairwoman, Texas Board of Pardons and Paroles; DETECTIVE
NFN BENSON,

                                                   Defendants-Appellees




               Appeal from the United States District Court for the
                            Northern District of Texas
                                 No. 4:09-cv-739


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Marcus Prince, proceeding pro se and in forma
pauperis, filed a complaint against Defendants-Appellees pursuant to 42 U.S.C.
§ 1983.     The district court dismissed the complaint sua sponte under the
preliminary screening provisions of 28 U.S.C. §§ 1915(e) and 1915A for failure
to state a claim upon which relief may be granted. We affirm.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                         I.
      In March 2006, Prince pleaded guilty in the trial court of Tarrant County,
Texas to the offense of failing to comply with his sexual offender registration
requirements. The trial court determined Prince’s offense to be a third degree
felony under Texas’s sentencing scheme and, therefore, enhanced Prince’s
sentence based on a prior felony conviction. The court sentenced Prince to four
years confinement with the Texas Department of Criminal Justice.
      Prince challenged the sentence in a state habeas corpus proceeding,
arguing that he had received ineffective assistance of counsel and that county
officials had misclassified his sex offender status as being permanent rather
than only for ten years. Prince asserted that as a result of this misclassification,
his offense of failing to comply with the registration requirements was wrongly
treated as a third degree felony subject to sentence enhancement. The state
court agreed and granted habeas relief, holding that the sentence enhancement
was improper under Texas law and that Prince should have been sentenced to
no more than two years or less than 180 days in a state jail facility. The Texas
Court of Criminal Appeals affirmed. Ex Parte Prince, No AP-76,125, 2009 Tex.
Crim. App. Unpub. LEXIS 228 (Tex. Crim. App. April 1, 2009) (unpublished) (per
curiam).
      Prince subsequently filed the present action in federal district court
pursuant to 42 U.S.C. § 1983 for violations of his constitutional due process
rights. Prince’s December 14, 2009 pro se complaint asserted claims against
three individuals in their personal and official capacities: Tim Curry, the
District Attorney for Tarrant County; Rissi Owens, Chairwoman of the Texas
Board of Pardons and Paroles; and Detective Benson, an officer in the Fort
Worth Police Department. The complaint contended that these three individuals
participated in the improper classification of Prince’s sex offender registration
requirements. The complaint accused these individuals of gross negligence,

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deliberate indifference, and failure to adequately train county personnel. Prince
also asserted claims against his attorney for allegedly conspiring with state
officials to enhance his sentence. Finally, Prince asserted a claim for “municipal
liability” against Tarrant County itself. Prince’s municipal liability allegations
charged that the county’s misclassification of his sex offender status resulted
from a customary policy of the county and the county’s deliberate indifference
to defendants’ constitutional rights.
       Prince also filed a self-styled “motion to supplement” on January 26, 2010,
in which Prince asserted that Tarrant County engaged in the “widespread
practice” of unconstitutional sentencing of sex offenders. This motion stated in
part that “at least one other person convicted of a nonviolent sex offense has
been subjected to illegal enforcement and sentencing . . . .” The motion attached
a 2005 opinion of the Texas Court of Appeals vacating on direct appeal a
defendant’s     sentence    that    had    been    mistakenly     enhanced      based     on
misclassification of his sex offender registration requirements, like in Prince’s
case. See Collins v. State, No. 2-04-297-CR, 2005 Tex. App. LEXIS 2257 (Tex.
App. Mar. 17, 2005) (unpublished). The motion also referred to a habeas petition
filed in federal district court by a Tarrant County inmate who asserted that
Tarrant County had unconstitutionally prosecuted and confined him for failing
to register as a sex offender even though his ten-year registration requirement
had expired. The district court dismissed that petition as moot once the inmate
was released from custody pursuant to his plea agreement. See Jackson v.
Anderson, No. 4:09-CV-350-A, slip op. (N.D. Tex. July 31, 2009)
       The district court denied the motion to supplement in a brief order issued
on January 27, 2010.1 The district court then screened Prince’s complaint for
frivolousness and lack of merit pursuant to 28 U.S.C. §§ 1915(e) and 1915A

       1
        Prince filed an interlocutory appeal of the denial of his supplementary motion, which
this court denied for lack of jurisdiction.

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without serving the complaint on the Defendants. The district court issued its
final judgment on March 22, 2010, dismissing the complaint for failure to state
a claim upon which relief can be granted.
      The district court dismissed the claims against the state officials in their
individual capacities on the basis of immunity and dismissed the claims against
Prince’s attorney on the grounds that the allegation that he conspired with state
officials is conclusory. The district court also dismissed the claims against
Tarrant County, reasoning that Prince’s contention that the county has a policy
or custom of illegally sentencing sex offenders is entirely conclusory. The court
held that the “plaintiff provides no factual allegations to support the existence
of a policy or custom . . . or that the alleged custom or policy was the moving
force behind any alleged constitutional violation. Instead, the complaint sets
forth only a formulaic recitation of the elements required to establish a local
government’s liability.” Prince now appeals that dismissal.
                                        II.
      A pro se complaint is to be liberally construed. See Erickson v. Pardus, 551
U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007). We use the same de novo standard to
review a § 1915 dismissal as used to review a dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6). See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998). “Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are
true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)
(internal citations omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal
quotes and citations omitted).




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                                              III.
       For the reasons stated in the district court’s opinion, it is clear that Prince
fails to state a plausible claim for relief against the Defendants in their
individual capacities.       We focus only on Prince’s claims against the state
Defendants in their official capacities2 and against Tarrant County itself to
determine if the district court correctly held that the allegations are so
completely lacking in factual content that they fail to state a claim for which
relief may be granted.
       The Supreme Court recently clarified that “[a] municipality or other local
government may be liable under this section [§ 1983] if the governmental body
itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be
subjected’ to such deprivation.” Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011) (quoting Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 692,
98 S. Ct. 2018 (1978)). The Court summarized under what circumstances a
municipality may be liable for its own conduct under § 1983:
       Plaintiffs who seek to impose liability on local governments under
       § 1983 must prove that action pursuant to official municipal policy
       caused their injury. Official municipal policy includes the decisions
       of a government’s lawmakers, the acts of its policymaking officials,
       and practices so persistent and widespread as to practically have
       the force of law.

Id. (internal quotes and citations omitted).
       Additionally, the Court explained that “[i]n limited circumstances, a local
government’s decision not to train certain employees about their legal duty to
avoid violating citizens’ rights may rise to the level of an official government




       2
         “Official capacity suits, in contrast [to personal-capacity suits], generally represent
only another way of pleading an action against an entity of which an officer is an agent.”
Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105 (1985) (internal quotes and
citations omitted).

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policy for purposes of § 1983.” Id. The Court noted that such a claim entails a
stringent standard of fault:


       A municipality’s culpability for deprivation of rights is at its most
       tenuous where a claim turns on a failure to train. To satisfy the
       statute, a municipality’s failure to train its employees in a relevant
       respect must amount to deliberate indifference to the rights of
       persons with whom the untrained employees come into contact.
       Only then can such a shortcoming be properly thought of as a city
       policy or custom that is actionable under § 1983.

Id. at 1359-60 (internal quotes and citations omitted).
           On a liberal reading of the complaint, it is clear that Prince intended to
raise claims against Tarrant County and the Defendants in their official
capacities under the general theories of municipal liability outlined by the
Supreme Court.         First, the complaint alleges that Tarrant County had a
customary policy of incorrectly classifying the status of sex offenders under
Texas criminal law, thereby subjecting certain prisoners to sentence
enhancements in violation of their constitutional due process rights. Second, the
complaint charges Tarrant County and the Defendants with deliberate
indifference and failure to properly train county personnel with regard to
sentencing. These allegations are consistent with the Court’s articulation of
local governments’ liability under § 1983 for having an unconstitutional policy
and for failure to train.3
       The real question is whether Prince’s complaint contains sufficient factual
matter, accepted as true, to state a claim for relief against Tarrant County that
is plausible on its face. Iqbal, 129 S. Ct. at 1949; see also Spiller v. City of Tex.



       3
         Municipal liability analysis applies to Texas counties. See Brady v. Fort Bend County,
145 F.3d 691 (5th Cir. 1998). Additionally, Prince’s § 1983 claim against Tarrant County
clears the hurdle of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994) because his four-
year sentence was declared invalid by the Texas Court of Criminal Appeals.

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City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (“The description of a policy
or custom and its relationship to the underlying constitutional violation,
moreover, cannot be conclusory; it must contain specific facts.”). The district
court held that Prince’s claims are entirely conclusory and that Prince provided
no specific factual allegations whatsoever to support the existence of an illegal
policy or custom in Tarrant County. However, this characterization of Prince’s
complaint is not entirely accurate.
       Prince’s motion to supplement does contain some specific factual matter
related to at least one other defendant who was similarly misclassified under
Texas’s sex offender registration laws in Tarrant County.                The motion to
supplement, filed before the complaint was ever served on the Defendants, was
in essence an amended complaint and should have been treated as such by the
district court in accordance with the liberal construction of pro se filings. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (stating that the district court
should have “look[ed] beyond the inmates’ formal complaint to consider as
amendments to the complaint those materials subsequently filed.”); accord Clark
v. Huntleigh Corp., 119 F. App’x 666, 667-68 (5th Cir. 2005).4 The district court
simply denied the motion and did not reference its factual content when
dismissing Prince’s claims. Thus, the district court erred by failing to consider
the factual matter contained in Prince’s motion to supplement in the same
manner as allegations contained in an amended complaint.
       Nevertheless, we conclude on this de novo review that even when taking
this factual content into consideration, Prince still fails to state a claim for relief
against Tarrant County that is plausible on its face. The facts discussed in



      4
         Given that the complaint was never served on the Defendants, Prince had the right
to amend his complaint as a matter of course pursuant to Federal Rule of Civil Procedure
15(a)(1). In any event, a party may amend its complaint with the court’s consent and “[t]he
court should freely give leave when justice so requires.” FED . R. CIV . P. 15(a)(2).

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Prince’s motion to supplement relate to one other case involving a sex offender
whose sentence was found to have been mistakenly enhanced by Tarrant County
officials, as well as the trial court and defense counsel, under circumstances
similar those of Prince’s case.   See Collins, No. 2-04-297-CR, 2005 Tex. App.
LEXIS 2257 at *1-2 (“[T]he trial judge, the prosecutor, and the defense attorney
all mistakenly believed that Appellant was required to register as a sex offender
for life . . . .”). The other case Prince cited in his supplemental motion involved
somewhat similar allegations, but these allegations were never proved. See
Jackson, No. 4:09-CV-350-A, slip op. at 1. Prince’s filings do not state, other
than in conclusory fashion, that additional defendants in Tarrant County were
subjected to illegal sentence enhancements. The existence of only one or, at
most, two other similarly situated defendants does not plausibly suggest that
Tarrant County has a policy or custom of unconstitutionally subjecting sex
offenders to enhanced sentences that is “so persistent and widespread as to
practically have the force of law.” Thompson, 131 S. Ct. at 1359.
      Nor does the existence of one or two prior incidents indicate that Tarrant
County was deliberately indifferent to defendants’ rights or had a pattern of
failing to train personnel to comply with the relevant sex offender classification
system. Id. at 1360 (“A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train.”) (quotes and citations omitted). Prince’s factual
allegations are simply not enough to meet the “stringent standard of fault” for
establishing a municipality’s deliberate indifference, which requires showing
that “a municipal actor disregarded a known or obvious consequence of his
action.” Id. (internal quotes and citation omitted). Furthermore, Prince’s claim
clearly does not fall into what the Court recently described as the extremely
narrow category of claims where “the unconstitutional consequences of failing
to train could be so patently obvious that a city [or other local government] could

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be liable under § 1983 without proof of a pre-existing pattern of violations.” Id.
at 1361 (describing the hypothetical possibility of a city being liable for failure
to train police officers in the use of deadly force without a pre-existing pattern
of similar violations).
      Accordingly, we hold that accepting Prince’s factual allegations as true,
Prince’s complaint does not contain enough factual matter to state a plausible
claim for relief against Tarrant County. For these reasons, the district court’s
order of dismissal is AFFIRMED.




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