     Case: 18-40568      Document: 00515207543         Page: 1    Date Filed: 11/20/2019




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

                                      No. 18-40568                              FILED
                                                                        November 20, 2019
                                                                           Lyle W. Cayce
MANUEL SOTO,                                                                    Clerk

              Plaintiff - Appellee

v.

NELDA BROCK, Probation Officer, sued in her individual capacity,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:17-CV-145


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:*
       Nelda Brock appeals the district court’s denial of summary judgment
based on qualified immunity. For the reasons set forth below, we AFFIRM.
                                    I. Background
       Manuel Soto was convicted of aggravated sexual assault of a child, and
he is currently an inmate in the custody of the Texas Department of Criminal
Justice (“TDCJ”). Soto’s son, A.M.S., was a minor in the state’s custody at the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Amador R. Rodriguez Boot Camp, a post-adjudication correctional facility.
Juveniles at the boot camp, referred to as “cadets,” are permitted to
communicate only with parents or legal guardians listed on a Cadet Contact
Authorization form. In May 2015, A.M.S.’s mother signed a Cadet Contact
Authorization form, but the form did not include Soto’s name. 1
      In June 2015, Soto’s mother contacted Nelda Brock—a probation officer
at the boot camp—to ascertain if Soto would be permitted to write a letter to
A.M.S. Brock said Soto was not permitted to contact A.M.S. because of Soto’s
status as an inmate and because of the nature of his crime. Additionally, when
Soto’s mother asked to speak to Brock’s supervisor, Brock informed Soto’s
mother that Brock was the person responsible for making decisions about who
could send letters to A.M.S. In July, TDCJ gave Soto permission to write to
A.M.S. Then, in August, Soto sent a letter to Brock and demanded that he be
allowed to correspond with A.M.S.
      On September 3, 2015, Soto mailed a letter to A.M.S., which the boot
camp received on September 5, 2015. A.M.S. did not receive the letter. On
September 8, 2015, A.M.S.’s mother wrote a letter to the boot camp. She
requested that Soto not be permitted to contact A.M.S., and she asserted that
such contact was not allowed “per . . . Nelda Brock.” The boot camp then
returned Soto’s letter to him and included their mail policy and A.M.S.’s Cadet
Contact Authorization form with the letter. Soto alleged that he received no
written explanation for the rejection of his letter and that the boot camp had
no process in place to appeal the rejection.
      Soto filed suit against Brock and Cameron County, alleging, inter alia,
that Brock’s actions violated Soto’s due process rights because the boot camp
had no procedural safeguards built in to its mail policy and did not provide


      1   The form listed A.M.S.’s mother and A.M.S.’s brother.
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                                  No. 18-40568
Soto with a way to appeal its decision. The district court dismissed all of Soto’s
claims except for his procedural due process claim and denied Brock’s assertion
of qualified immunity as to that claim.
      Brock filed an interlocutory appeal from the order of the district court
denying her motion for summary judgment based on qualified immunity.
Brock argues that she did not violate Soto’s procedural due process rights when
she returned his letter, but that if she did, such rights were not clearly
established, and her actions were objectively reasonable.
                              II. Legal Standard
      The denial of a motion for summary judgment based on qualified
immunity is a “collateral order capable of immediate review.”           Kinney v.
Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). Our jurisdiction to review
the denial is “significantly limited,” extending to questions of law only. Id. We
review the district court’s resolution of these solely legal issues de novo. Lytle
v. Bexar Cty., Tex., 560 F.3d 404, 409 (5th Cir. 2009).
      “Government officials performing discretionary functions are entitled to
qualified immunity from civil liability to the extent that ‘their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Longoria v. Texas, 473 F.3d 586, 592
(5th Cir. 2006) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
test for qualified immunity is twofold: “(1) whether the plaintiff has alleged a
violation of a clearly established constitutional right; and (2) if so, whether the
defendant’s conduct was objectively unreasonable in light of the clearly
established law at the time of the incident.” Domino v. Tex. Dep’t of Criminal
Justice, 239 F.3d 752, 755 (5th Cir. 2001) (quoting Hare v. City of Corinth, 135
F.3d 320 (5th Cir. 1998) (en banc)).
      When a defendant asserts qualified immunity, the usual summary
judgment burden of proof shifts to the plaintiff, who must establish a genuine
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fact dispute “as to whether the official’s allegedly wrongful conduct violated
clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Though the plaintiff has the burden of negating qualified immunity, the court
must draw all inferences in his favor. Id. In an interlocutory appeal from the
denial of qualified immunity, jurisdiction extends only to “the purely legal
question whether a given course of conduct would be objectively unreasonable
in light of clearly established law,” not to whether the fact dispute is genuine.
Kinney, 367 F.3d at 347.
                               III. Discussion
A.    Whether Constitutional Rights Were Violated
      This appeal hinges on whether qualified immunity shields Brock from
Soto’s procedural due process claim. First, we must determine whether Brock’s
actions violated Soto’s due process rights. “The interest of prisoners and their
correspondents in uncensored communication by letter, grounded as it is in the
First Amendment, is plainly a ‘liberty’ interest within the meaning of the
Fourteenth   Amendment       even   though   qualified    of     necessity   by   the
circumstance of imprisonment.” Procunier v. Martinez, 416 U.S. 396, 418
(1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401
(1989).   Therefore, when a letter has been rejected, both senders and
addressees are entitled to procedural due process protections, including notice
and an opportunity to be heard. See Martinez, 416 U.S. at 417–19. The
Supreme Court has approved of procedural due process safeguards requiring
that “an inmate be notified of the rejection of a letter written by or addressed
to him, that the author of that letter be given a reasonable opportunity to
protest that decision, and that complaints be referred to a prison official other
than the person who originally disapproved the correspondence.” Id. at 418–
19; see also Prison Legal News v. Livingston, 683 F.3d 201, 224 (5th Cir. 2012)


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(stating that senders and addressees of personal letters that are censored by a
prison are entitled to notice and the opportunity to be heard).
      Moreover, this is not a situation in which the recipient is prohibited from
receiving mail. We have explained that minors in boot camps are “not free to
leave” and thus are afforded constitutional protections applicable to prisoners.
Austin v. Johnson, 328 F.3d 204, 208–09 (5th Cir. 2003). Brock acknowledged
that the boot camp was a “post-adjudication secure correctional facility,” which
Texas law defines as “[a] secure facility administered by a governing board that
includes construction and fixtures designed to physically restrict the
movements and activities of the residents . . . .” 37 TEX. ADMIN. CODE
§ 343.100(48).
      Here, A.M.S. was detained in a correctional facility, which triggered a
liberty interest in A.M.S.’s mail subject to due process protections.         See
Martinez, 416 U.S. at 418. Soto alleges that his letter to A.M.S. was rejected
under Brock’s direction without clear notice as to why it was rejected. Soto
was not given an opportunity to respond or appeal Brock’s determination to
another official at the boot camp.      Accordingly, Soto did not receive the
requisite due process.
      That Soto is incarcerated for a sexual offense is undisputed and a matter
of public record. However, in the cases cited by Brock intimating that a sex
offender’s right to access children can be restricted, the offenders were subject
to sex offender registration laws and their rights were adjudicated in the
original criminal proceeding. See Duarte v. City of Lewisville, 858 F.3d 348,
352–53 (5th Cir. 2017); United States v. Rodriguez, 558 F.3d 408, 417–18 (5th
Cir. 2009) (upholding a court-imposed condition restricting the offender from
unsupervised access to children).     There is no evidence showing that sex
offender registration laws or the criminal court prevented Soto from contacting
his son based on his status as a sex offender. Accordingly, Brock has failed to
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demonstrate that the district court erred by holding that Soto had a due
process interest in communicating with his detained son.
      Brock also argues that the State did not interfere with Soto’s right to due
process because A.M.S.’s mother signed a form that did not authorize Soto to
contact his son, and Brock was simply following policy. However, the district
court found fact disputes in the summary judgment evidence based upon Soto’s
mother’s statements in her affidavit that supported the claim that Brock had
interfered with Soto’s rights. Specifically, among other things, Soto’s mother
averred that Brock stated that she was responsible for making decisions about
who could send mail. This undercuts Brock’s contention that she was simply
following the boot camp’s policy and supports a conclusion that Brock had
discretion as to whether Soto could contact his son. At this stage in the
litigation, we cannot review the district court’s conclusion that genuine factual
disputes exist. See Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007).
      In sum, analyzing the facts favorable to Soto supports his contention that
he did not receive the procedural protections that due process requires.
Additionally, Brock has failed to show that Soto’s status as a sex offender or
the existence of A.M.S.’s Cadet Contact Authorization form should alter the
due process interest that Soto had in writing his son.
B.    Whether the Rights Were Clearly Established
      Having determined that, construing facts favorably to Soto, the evidence
supports finding that his rights were clearly violated, we next consider whether
his rights were clearly established for qualified immunity purposes. “A right
is clearly established when ‘it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.’” Ramirez v. Martinez,
716 F.3d 369, 375 (5th Cir. 2013) (quoting Jones v. Lowndes Cty., 678 F.3d 344,
351 (5th Cir. 2012)). For a right to be clearly established, its contours must be
“sufficiently definite that any reasonable official in the defendant’s shoes would
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have understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765,
778–79 (2014). Courts must not “define clearly established law at a high level
of generality,” as “[t]he dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). It is not
required that the “very action in question has previously been held unlawful.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Instead, “in the light of pre-
existing law the unlawfulness must be apparent.” Id.
      In this case, the specific right at issue was clearly established. At the
time of the alleged violation, the law made clear that (1) due process
safeguards—specifically, notice of why the letter was rejected and an
opportunity to appeal the decision—are required when a prisoner’s letter is
rejected, and (2) the fact that Soto’s son was a minor does not change the
analysis. See Martinez, 416 U.S. at 417–19; Prison Legal News, 683 F.3d at
224; Austin, 328 F.3d at 208–09.       Thus, a reasonable official would have
understood that failing to provide adequate notice and an opportunity to
appeal after rejecting a letter sent to a minor detained in a boot camp would
violate the sender’s constitutional rights.
      Finally, Brock contends that she acted reasonably by preventing Soto’s
contact with A.M.S. because Soto was not authorized to contact A.M.S.
pursuant to the Cadet Contact Authorization form that A.M.S.’s mother
signed. Again, Brock’s authority to allow contact is in dispute, since there is
evidence she claimed to have the power to make that decision. But even if
Brock was constrained by policy and therefore acted reasonably by initially
withholding Soto’s letter, she was required to afford Soto procedural due
process. See Johnson v. El Paso Cty. Sheriff’s Dep’t, No. 92-8514, 1995 WL
152720, at *5 (5th Cir. Mar. 20, 1995) (noting that the rejection of
correspondence and notification of the rejection are separate constitutional
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                                 No. 18-40568
inquiries). That is, even if it was objectively reasonable for Brock to reject
Soto’s correspondence based on the contents of A.M.S.’s Cadet Contact
Authorization form, it is clearly established that due process required Brock to
provide Soto with notice of the decision and an opportunity to respond.
                               IV. Conclusion
      Based on the foregoing, the judgment of the district court is AFFIRMED,
and the case is REMANDED for further proceedings.




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