     Case: 12-11248       Document: 00512574795         Page: 1     Date Filed: 03/26/2014




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

                                                                                       FILED
                                       No. 12-11248                              March 26, 2014
                                                                                  Lyle W. Cayce
DARRYL W. DAY,                                                                         Clerk


                                                  Plaintiff - Appellant
v.

HONORABLE MICHAEL T. SEILER, official capacity; GREGG W ABBOTT,
Attorney General of Texas (official capacity); ALLISON TAYLOR, executive
director Office of Violent Sexual Offender Management (OVSOM) (official
capacity),

                                                  Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-564


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Darryl W. Day filed this 42
U.S.C. § 1983 action regarding his civil commitment at the Fort Worth
Transitional Center, a halfway house. Named as defendants in their official
capacities are Texas Judge Michael Seiler, Texas Attorney General Gregg


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                  No. 12-11248

Abbott, and Allison Taylor, executive director of the Texas Office of Violent
Sexual Offender Management. This action was dismissed pursuant to 28
U.S.C. § 1915 (proceedings in forma pauperis), the district court’s having ruled
Day failed to state a claim upon which relief could be granted. AFFIRMED in
PART; VACATED in PART; REMANDED. MOTION FOR APPOINTMENT
OF COUNSEL DENIED.
                                        I.
      When Day was 19, he abducted at gunpoint, and sexually assaulted, a
14-year-old girl. He received deferred-adjudication probation for the state-law
offense; but, the judgment was modified to a conviction when, four years later,
he was convicted of abducting at gunpoint, and sexually assaulting, a 23-year-
old woman. Day was disciplined, while imprisoned, for masturbating in front
of female correctional officers. Following a jury trial on his status as a sexually
violent predator (SVP), the jury found Day had “a behavioral abnormality that
predisposes him to engage in a predatory act of sexual violence”. A forensic
psychologist estimated Day had between eight and ten victims. Day was civilly
committed as an SVP, and the state intermediate appellate court affirmed the
judgment. In re Commitment of Day, 342 S.W.3d 193, 197 (Tex. App. 2011).
      Day filed this action after being civilly committed. The district court
construed his pro se complaint as raising six issues: rule infractions leading to
felony prosecution violated Day’s due-process and equal-protection rights;
mandatory polygraph tests violated his Fifth Amendment right against self-
incrimination; GPS monitoring restricted his liberty in violation of the Fifth
and Fourteenth Amendments; restrictions on unapproved contact with friends
and family infringed on his First Amendment right of association; confinement
denied Day access to the courts; and the SVP program was punitive in nature.


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                                  No. 12-11248

      For his claim regarding mandatory polygraph examinations, Day
emphasized refusal to undergo polygraph testing could result in felony
prosecution, either by a confession of violations to his treatment regime, or,
alternatively, by a refusal to take the polygraph, which constitutes a violation.
For his First Amendment claim, he contended the restrictions on visitation
violated his right of association, and amounted to a “complete ban on any
unapproved contact”. Day sought declaratory and injunctive relief, as well as
compensation for litigation costs, and requested appointed counsel.
      In determining whether to require defendants to answer Day’s
complaint, the district court analyzed it under 28 U.S.C. § 1915, which directs
courts to dismiss, sua sponte, an in forma pauperis action when it “(i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is immune from such
relief”. 28 U.S.C. § 1915(e)(2)(B). Along that line, the court noted programs
similar to that challenged by Day have been upheld by the Supreme Court and
Texas courts, and concluded any challenge to Texas’ SVP law was unavailing.
It ruled the rest of Day’s claims likewise failed because they pertained to
“routine” aspects of SVP treatment and helped protect the public from SVPs, a
legitimate, non-punitive state reason for restrictions on, inter alia, liberty
interests. Therefore, ruling Day failed to state a claim upon which relief could
be granted, the court dismissed his claims pursuant to 28 U.S.C. § 1915. Day
v. Seiler, No. 4:12-CV-564 (N.D. Tex. 23 Oct. 2012). Subsequently, the court
denied Day’s motion to alter the judgment under Federal Rule of Civil
Procedure 59(e), as well as Day’s post-judgment motion to amend his
complaint.




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                                       II.
      Insofar as Day contends the district court erred by not analyzing some of
his claims, those not addressed explicitly are considered as having been
rejected implicitly. Soffar v. Dretke, 368 F.3d 441, 470–71 (5th Cir.), amended
on rehearing on other grounds, 391 F.3d 703 (5th Cir. 2004); see also Jefferson
v. MillerCoors, LLC, 440 F. App’x 326, 329 (5th Cir. 2011) (“Because the district
court failed to address Jefferson’s [claim], we consider the claim implicitly
rejected by the court.”). Because Day is proceeding pro se, his complaint is
liberally construed. E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). As such,
any contentions that the district court failed to analyze certain claims are
construed instead as asserting the court erred in dismissing them.
      Day challenges the dismissal, under 28 U.S.C. § 1915(e)(2)(B)(ii), of the
following eight claims: the court unlawfully used prior plea agreements; the
lack of a probable cause hearing violated his Fourth Amendment rights; GPS
monitoring violates his due-process rights; he was denied access to the courts;
Texas’ SVP program violates due process, equal protection, the Ex Post Facto
Clause, and double jeopardy; the imposition of a felony for a rule infraction
violates his due-process and equal-protection rights; mandatory polygraph
examinations violate his Fifth Amendment right against self-incrimination;
and a “complete ban” on unapproved visitors and other restrictions on contact
violate his First Amendment right of association.
      A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted is reviewed under the same de novo standard as a
dismissal under Federal Rule of Civil Procedure 12(b)(6). E.g., Hale v. King,
642 F.3d 492, 497 (5th Cir. 2011). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to


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                                  No. 12-11248

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted).
                                       A.
      With the exception of his First and Fifth Amendment claims, discussed
in part II. B., infra, we hold, essentially for the reasons stated by the district
court, that Day failed to state a claim upon which relief could be granted.
      In addition, to the extent Day contends the SVP proceedings amount to
a breach of his plea agreements, this assertion is unavailing because a § 1983
action is not the proper vehicle to bring this claim. See Braden v. Tex. A & M
Univ. Sys., 636 F.2d 90, 92–93 (5th Cir. 1981); cf. Montoya v. Johnson, 226 F.3d
399, 405–06 (5th Cir. 2000) (analyzing guilty plea on habeas review).
      Likewise, the court did not err by rejecting Day’s claims concerning a
probable-cause hearing and GPS monitoring, both of which are grounded in his
theory that the SVP proceedings are punitive and thus not civil in nature. An
examination of pertinent authority and the SVP statute confirms that the
proceeding at the heart of this action is civil in nature and that Day is not,
contrary to his assertions, incarcerated, nor is he being subjected to punitive
treatment.    See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997); In re
Commitment of Fisher, 164 S.W.3d 637, 653 (Tex. 2005).
      Also unavailing is Day=s claim of denial of access to courts; he has not
alleged an actual injury arising from this purported denial. See Lewis v. Casey,
518 U.S. 343, 356 (1996).
                                       B.
      The following two issues are remanded for further proceedings: whether
mandatory polygraph examinations violate Day’s Fifth Amendment right




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                                 No. 12-11248

against self-incrimination; and whether the restrictions on contact and
visitation violate his First Amendment right of association.
      In analyzing these claims, we draw on this court’s recent unpublished
opinion in Bohannan v. Doe, 527 F. App’x 283 (5th Cir. 2013). Similar to this
action, appellant in Bohannan, also a Texas SVP, appealed the denial of his
motion for appointment of counsel as well as the dismissal of his claims for
frivolousness and failure to state a claim on which relief could be granted. Id.
at 287–88. Bohannan presented a series a claims concerning his treatment, as
well as First and Fifth Amendment claims. Id. at 292–96. While this court
affirmed the denial of appointment of counsel and dismissal of almost all
claims, it reversed the dismissal of the First and Fifth Amendment claims
because Bohannan had “alleged sufficient facts to raise plausible claims to
relief”. Id. at 295.
      On the First Amendment claim, Bohannan contended Texas’ SVP
policies imposed unreasonable restrictions on visitation and outside contact.
Id. at 294. Our court emphasized restrictions on First Amendment rights
would be upheld if “reasonably related to the institution’s goal of treatment
and rehabilitation”.   Id. at 295.   But, because Bohannan contended the
restrictions were “blanket” and “arbitrary”, our court held he had stated a
plausible claim that survived dismissal under § 1915(e)(2)(B). Id.
      For his Fifth Amendment claim, Bohannan maintained mandatory
written statements and polygraph examinations violated his right against self-
incrimination because he could not decline and because such statements were
used against him in a subsequent criminal prosecution. Id. On the claim
against mandatory polygraph examinations, our court reversed the dismissal
because the examinations presented Bohannan with the following dilemma:


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“either refuse to answer questions regarding violations of the commitment
order and be prosecuted for the refusal, or acknowledge violating the
commitment order and be charged accordingly”. Id. at 296.
      Similarly, Day contends the SVP program violates his First Amendment
right of association because the policies serve as a “complete ban” on
unapproved contact with family members and friends. Likewise, for his Fifth
Amendment claim, he maintains SVPs being required to undergo polygraph
examinations, or else be dismissed from therapy, which constitutes a felony,
violates his right against self-incrimination. Appellant’s claims in Bohannan
were substantially similar, and we find our court’s reasoning in that opinion
compelling.
                                      C.
      Day filed a motion with this court in January 2013, for appointment of
counsel. The motion was carried with the case. Day’s claims are relatively
straightforward and do not involve complex cross-examination or conflicting
testimony.    See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)
(discussing discretion in appointing counsel).
                                      III.
      For the foregoing reasons, Day’s motion for appointment of counsel is
DENIED; the judgment is AFFIRMED in PART and VACATED in PART; and
this matter is REMANDED for further proceedings consistent with this
opinion.




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