     Case: 17-11045       Document: 00515186975         Page: 1     Date Filed: 11/05/2019




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

                                       No. 17-11045
                                                                              Fifth Circuit

                                                                            FILED
                                                                     November 5, 2019

ADOLPH MARTINEZ,                                                       Lyle W. Cayce
                                                                            Clerk
               Plaintiff - Appellant

v.

MARSHA MCLANE, Executive Director, Texas Civil Commitment Office;
TEXAS CIVIL COMMITMENT OFFICE (TCCO),

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:16-CV-265


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal is from a judgment entered under Federal Rule of Civil
Procedure 54(b) for two of several defendants: the Texas Civil Commitment
Office (TCCO); and Marsha McLane (TCCO’s executive director).                                  In his
complaint for this action pursuant to 42 U.S.C. § 1983, Adolph Martinez,
proceeding pro se, raised issues related to his status as a civilly-committed



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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sexually violent predator (SVP), claiming, inter alia, TCCO and McLane
violated, and continue to violate, rights conferred upon him by the United
States Constitution. In addition, he claimed violations of Texas law.
      The district court, through an order summarily adopting the reasons
stated in TCCO and McLane’s motions to dismiss, and her reply to Martinez’
objections to her motion, dismissed this action against them pursuant to Rules
12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) (failure to state a
claim).
      On appeal, Martinez waives some of the claims in his complaint; federal
courts lack jurisdiction for his state-law claims; and Martinez fails to state a
claim for those that remain. AFFIRMED.
                                       I.
      As noted, Rules 12(b)(1) and (b)(6) are in play. Therefore, for the reasons
discussed infra, some of the following facts are accepted from Martinez’
complaint, including the attached judgment.         For the remainder of the
following facts, we take judicial notice of the orders and other documents in
the appendix to McLane’s motion to dismiss. E.g., Fed. R. Evid. 201.
      Prior to any involvement with appellees, Martinez was convicted of
multiple sexual-misconduct offenses. In 2002, while he was imprisoned, a
Texas state court adjudged him an SVP. As a consequence, that court ordered
Martinez’ commitment for outpatient treatment upon his release from prison,
which was consistent with Texas Health & Safety Code § 841.081, as then
written. Therefore, when released from prison in 2003, Martinez was placed
in the custody of the Council on Sex Offender Treatment to complete an
outpatient-treatment program.
      In 2005, however, Martinez was arrested and his parole was revoked
after he violated conditions of his civil commitment and failed to progress in


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                                 No. 17-11045
treatment. After entering a plea agreement with the State, Martinez was
sentenced to five-years’ imprisonment.
      Martinez was released from prison in 2013. Due to his age and physical
limitations, he was permitted to live in an assisted-living facility. In 2014,
while in the facility, he engaged in prohibited sexual activity. As a result, he
was placed in a halfway house. Due to his refusal to pay global-positioning-
satellite fees, he was placed in “an Intermediate Sanction Facility” from June
2015 until 1 September 2015.
      Earlier in 2015, however, the Texas Legislature had passed Senate Bill
746, which amended the above-referenced Texas Health & Safety Code § 841
by abolishing the outpatient program to which Martinez had been committed,
with state courts being directed to amend the order of civil commitment for
every SVP by placing them in a tiered-treatment program with increased
treatment and supervision. The new law required notice to each SVP, alerting
him of his status change and his right to a hearing. Accordingly, in a 2 July
2015 letter from TCCO to “All Clients”, Martinez and other SVPs received
notice of these changes.
      On 26 August 2015, through a “Consent To Tiered Treatment” executed
by Martinez, he waived his hearing-right and “consent[ed] to join” the tiered-
treatment program. On 2 September, a Texas state court amended Martinez’
prior order of civil commitment to conform with the above-described changes
contained in Senate Bill 746. Soon thereafter, a Texas-court amended order of
civil commitment required Martinez to “reside where instructed by the TCCO”.
      In July 2016, despite Martinez’ earlier, above-described waiver of his
right to a hearing and his concomitant consent to enter the tiered treatment,
he challenged his commitment status by filing a petition for a writ of
mandamus in the Texas court system, contesting the application of the Senate
Bill 746 amendments to him and his total confinement pursuant to the changed
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                                  No. 17-11045
law. Texas courts denied Martinez’ petition, upholding the application of the
amended statute to him and his confinement.
      Martinez, proceeding pro se, filed the complaint in this action in
November 2016 pursuant to 42 U.S.C. § 1983; in addition to his federal-law
claims, he claimed violations of Texas law. Martinez named, inter alia, TCCO
and McLane as defendants.
      In response, TCCO and McLane filed motions to dismiss pursuant to
Rules 12(b)(1) and 12(b)(6) and briefs in support of the motions. Martinez
responded, in part, with objections, followed by McLane’s filing a reply brief in
support of her motion.
      Taking these papers into consideration, the district court, in a
7 September 2017 order, summarily granted both motions to dismiss for “the
reasons thoroughly and persuasively argued” in appellees’ motions and
McLane’s reply, and dismissed without prejudice for lack of subject-matter
jurisdiction Martinez’ claims against TCCO, his “claims against . . . McLane or
TCCO challenging the validity of his civil commitment”, and his “claims
seeking money damages from . . . McLane in her official capacity”. Order at 2,
Martinez v. McLane, No. 5:16-cv-00265-C (N.D. Tex. 7 Sept. 2017). The other
claims against McLane were dismissed with prejudice. Id. Finally, the court
denied “[a]ll relief not expressly granted by this Order”. Id. A final judgment
for TCCO and McLane was entered pursuant to Rule 54(b).
                                       II.
      “We review a district court’s ruling on a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction de novo.” Raj v. La. State Univ., 714 F.3d
322, 327 (5th Cir. 2013) (italics added) (citation omitted). Likewise: “We
review a Rule 12(b)(6) dismissal de novo, accepting all well-plead[ed] facts as
true.” Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002) (citation omitted).


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                                    No. 17-11045
                                          A.
      Martinez’ pro se appellate brief does not contain any claim against
TCCO. And, notwithstanding his claims in his complaint relating to medical
and dental care, they are not mentioned in that brief. The same is true for the
claims in his complaint relating to Social Security payments.
      “Although we liberally construe the briefs of pro se appellants, we also
require that arguments must be briefed to be preserved.” Price v. Dig. Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988) (per curiam) (italics added) (citations
omitted).    Therefore, Martinez’ claims against TCCO, claims asserting
inadequate medical and dental care, and claims related to Social Security
payments are waived.
                                          B.
      On appeal, Martinez seeks monetary damages from McLane (TCCO’s
executive director) in her individual capacity. His complaint, however, makes
clear he sues McLane only in her official capacity. Because “officials” do not
qualify as “persons” for purposes of 42 U.S.C. § 1983, Martinez may not bring
an action seeking monetary damages from an official in her official capacity
pursuant to that statute. See Will v. Mich. Dep’t. of State Police, 491 U.S. 58,
71 (1989) (“[A] suit against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the official’s office. . . . We
hold that neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.”).       Therefore, Martinez fails to state a claim for
monetary damages.
                                          C.
      As noted, Martinez has waived on appeal any claims against TCCO. His
remaining federal-law claims for injunctive relief are best categorized as
follows: McLane “unlawfully placed [Martinez] in total confinement[,] which
is clearly not part of his Final Judgment or Amended Order of Commitment”;
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                                 No. 17-11045
his confinement violates his substantive-due-process right to outpatient
treatment; he is being punished for failure to pay for sex-offender treatment
and for his confinement, which he asserts is a violation of his Fourteenth
Amendment procedural-due-process rights; and he receives constitutionally
inadequate sex-offender treatment.
                                       1.
      The first two claims, dealing with confinement, may be considered
together. Each claim fails.
      Martinez’ assertion that his confinement violates his right to outpatient
treatment fails because Martinez never had that right. First, Martinez’ order
of civil commitment imposed obligations upon him with consequences for
failure to comply. Second, Texas Health & Safety Code § 841.082(e), which
went unchanged by Senate Bill 746, provided that an SVP’s order of
commitment “may be modified . . . at any time after notice to each affected
party to the proceedings and a hearing”.         Tex. Health & Safety Code
§ 841.082(e).    From the outset, as evidenced by Martinez’ pre-amendment
confinement, it was possible for an SVP to be confined upon receiving notice
and a hearing.
      Pursuant to the amended statute, Martinez received notice “[t]he
program will no longer exclusively provide outpatient treatment; instead, you
will participate in a tiered program that includes both inpatient and outpatient
treatment stages”. He then waived his right to a hearing and consented to
enter the tiered-treatment program, after which a Texas court signed an order
transferring Martinez into the program. This exact sequence of events could
have occurred prior to the statutory amendment.
      Because Martinez had no right, federal or otherwise, to outpatient
treatment, his being placed in confinement, in conformity with the amended
statute, was lawful. Accordingly, his claims relating to confinement fail.
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                                       2.
      Martinez’ claim he is being punished for failure to pay for sex-offender
treatment and for his confinement likewise fails to state a claim. He cites no
legal authority for the proposition that a non-indigent civil-committee may not
be assessed these costs.
                                       3.
      Regarding his claim he is receiving constitutionally inadequate sex-
offender treatment, Martinez asserts his treatment-providers are not licensed
in accordance with Texas law; but, he does not state how this violates the
United States Constitution. Although he points to out-of-circuit precedent
stating the Fourteenth Amendment requires civilly-committed persons receive
access to mental-health treatment giving them a realistic opportunity to be
cured, he does not state how his treatment fails to do so. Martinez again fails
to state a claim.
                                      D.
      Martinez raised a number of state-law claims in his complaint. On
appeal, however, he asserts only violations of the Texas Constitution. As the
Supreme Court has held, however: “[A] claim that state officials violated state
law in carrying out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment. . . . [T]his principle applies as
well to state-law claims brought into federal court under [supplemental]
jurisdiction”. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121
(1984).   Because Martinez proceeds against McLane solely in her official
capacity, the Eleventh Amendment bars federal jurisdiction over his claims for
violations of the Texas Constitution. See id. Accordingly, these claims are
dismissed without prejudice.




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                                       E.
      Finally, Martinez asserts the district court abused its discretion in not
allowing him to amend his complaint prior to dismissing it. The court ruled:
      While courts will ordinarily grant leave to amend an inadequate
      complaint, an exception exists where the plaintiff has filed a
      lengthy response asserting the adequacy of his existing complaint
      and has refused to amend his complaint in the face of a motion to
      dismiss that puts him on notice of pleading deficiencies. See Brown
      v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016).

Order at 2 n.3, Martinez v. McLane, No. 5:16-cv-00265-C (N.D. Tex. 7 Sept.
2017). That ruling is consistent with the cited precedent: although district
courts ordinarily grant leave to amend an inadequate complaint, an exception
exists where plaintiff: “(1) repeatedly declared the adequacy of [his] 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”. Id. (internal
quotation marks and citation omitted).
      Despite appellees’ briefs and other papers at the motion-to-dismiss stage,
contesting the sufficiency of his complaint, Martinez failed to amend it.
Further, rather than amend his complaint, Martinez’ response to McLane’s
motion to dismiss is, inter alia, replete with contentions his complaint is
adequate. Because both Brown v. Taylor criteria exist for not allowing a
complaint to be amended, the court did not err.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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