     Case: 14-50331    Document: 00512949977    Page: 1   Date Filed: 02/26/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-50331                 United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
MICHAEL SCOTT TONEY,                                          February 26, 2015
                                                                Lyle W. Cayce
             Plaintiff - Appellant                                   Clerk

v.

RISSIE OWENS; BRAD LIVINGSTON; GERALD GARRETT; TONY
GARCIA; RICK THALER; STUART JENKINS; CONRINTH DAVIS;
DONNIEA GARRETT, JANE CHURCH, R. PALAD,

             Defendants - Appellees




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


Before KING, DAVIS, and OWEN, Circuit Judges.
KING, Circuit Judge:
      Plaintiff-Appellant Michael Toney, a Texas inmate proceeding pro se,
brought this action alleging Section 1983 claims and state law claims against
Appellees, various prison officials. Toney contends that Appellees violated his
right to procedural due process by classifying him as a sex offender. The
district court granted Appellees’ motion for summary judgment and denied
Toney’s motion for summary judgment, concluding that Toney’s classification
did not implicate his liberty interests under the due process clause.                 The
district court further determined that Appellees sued in their individual
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                                      No. 14-50331
capacities were entitled to qualified immunity. Toney appeals these rulings.
For the following reasons, we AFFIRM the judgment of the district court.
                    I.     Factual and Procedural Background
       Appellant Michael Scott Toney is an inmate currently incarcerated at
the Ellis Unit of the Texas Department of Criminal Justice (“TDCJ”). On
February 28, 1994, a jury found Toney guilty of burglary with the intent to
commit aggravated assault with a deadly weapon. 1 Toney was sentenced to
forty years’ incarceration with the TDCJ.
   A. The Relevant Policies
       During     Toney’s imprisonment,          the    TDCJ and        related entities
promulgated various regulations relating to sex offender classification.
       Beginning in February 1998, the TDCJ instituted Administrative
Directive (“AD”) 04.09: “Sex Offender Identification Criteria and Methods of
Recording Information.”         The policy was created to “ensure that all sex
offenders under its supervision are identified for purposes of: DNA testing, sex
offender    treatment,     release    processing,      parole     decision-making,     case
management, sex offender registration, and classification decision-making.”
Toney would not have qualified as a sex offender under this directive.
However, on January 30, 2004, the TDCJ instituted a revised version of the
directive, AD 04.09 (rev. 2), which altered the “Sex Offender Identification
Criteria” to cover inmates that have a “[c]urrent or prior conviction for a non-
sexual offense with a sexual element,” and for whom “an employee of the [Sex
Offender Treatment Program] or a registered sex offender treatment provider
has concluded that sex offender supervision and treatment is warranted.” On
February 20, 2007, the TDCJ enacted another revised directive, AD 04.09 (rev.


       1 Toney alleges that he was originally indicted for burglary with the intent to commit
sexual assault, but, because the judge “adjudicated that there was no evidence of a sexual
assault,” Toney was then “reindicted while dropping the sexual assault.”
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3), which similarly stated that an inmate may be identified as a sex offender
“if an element of sexual behavior is identified and the offender has been
convicted of . . . a non-sexual offense with a sexual element.”
      In addition, beginning in January 8, 2004, the Texas Board of Pardons
and Paroles (“TBPP”) enacted “Special Condition X,” a special condition of
parole or supervised release requiring that the parolee, inter alia: (1) “[e]nroll
in and participate in a treatment program for sex offenders,” which may
include “psychological counseling”; (2) “[s]ubmit to polygraph examinations”;
and (3) refrain from engaging in a variety of activities. A parole panel may
impose Special Condition X “upon a majority vote.” Under Special Condition
X, “[s]ex offender[s]” are defined as “offenders who have admitted, committed,
threatened to commit, or are a party to an act which constitutes a sexual
offense or sexually deviant behavior.” A July 20, 2006, revised version of
Special Condition X provided a new procedure for imposing the condition on
offenders with no current or prior sex offense conviction:
      Before submission of a request to the parole panel to impose the
      Sex Offender Special Condition on offenders who have no current
      or prior conviction for a sex offense, the parole officer or TDCJ
      Parole Division representative shall provide to the offender
      written notice and opportunity to provide a written response
      within 30 days. Upon the expiration of the notice period, the parole
      officer or TDCJ Parole Division representative shall provide
      credible information in writing to the panel that indicates that the
      offender has engaged in unlawful sexual conduct and could
      constitute a threat to society.
The policy was revised again on November 18, 2009, slightly modifying the
procedure for imposing Special Condition X on offenders with no prior sex
offense convictions by changing the last clause from “indicates that the
offender has engaged in unlawful sexual conduct and could constitute a threat




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                                     No. 14-50331
to society” to “indicates that the offender constitutes a threat to society by
reason of his lack of sexual control.” 2
       The parole division of the TDCJ has also promulgated guidelines
outlining certain procedures for offenders who are convicted of non-sexual
offenses but who are nonetheless identified as sex offenders for purposes of
Special Condition X. These guidelines recognize that “[p]ursuant to the United
States Court of Appeals [for the] Fifth Circuit and the Texas Court of Criminal
Appeals, offenders who do not have a sex offense conviction are entitled to be
heard in person to present evidence, call witnesses, and confront and cross-
examine witnesses prior to the imposition of Special Condition ‘X.’”
   B. Toney’s Classification as a Sex Offender
       Toney alleges that, during his initial parole review in 2004, parole officer
Donniea Garrett informed him that he was being identified as a sex offender. 3
According to Toney, at the end of his interview, he was required to complete a
“Static 99 Sex Offender Risk Assessment” (“Static 99 Assessment”).                   This
evaluation “is required for offenders [who are] being considered for parole,
mandatory or discretionary mandatory supervision and [who] are identified as
sex offenders in accordance with [AD 04.09].” The Static 99 Assessment, which
is “used for assessing offenders’ risk level,” consists of a one-page form with ten
questions relating to the offender’s history and past convictions, with
corresponding point values to be assigned depending on the answers to those
questions. Garrett completed the form and assigned Toney a total score of 3—
thus classifying Toney as a “mod[erate]” risk. 4 This “indicat[es] that [Toney]




       2 The TBPP has since enacted two subsequent versions of Special Condition X, which
contain no relevant changes.
       3 These allegations appear in Toney’s verified second amended complaint.
       4 Toney received two points because he did not know and was unrelated to his victim,

and one point for having a non-sexual assault conviction.
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                                    No. 14-50331
poses a moderate danger to the community and may continue to engage in
criminal sexual conduct.”
      The parole board denied Toney’s parole in 2004, providing the reason
“2D.” This reason is given where:
      The record indicates that the inmate committed one or more
      violent criminal acts indicating a conscious disregard for the lives,
      safety, or property of others; or the instant offense or pattern of
      criminal activity has elements of brutality, violence, or conscious
      selection of victim’s vulnerability such that the inmate poses a
      continuing threat to public safety; or the record indicates use of a
      weapon.
This same justification was given for each of Toney’s subsequent denials of
parole, in 2006, 2008, 2010, 2011, and 2012. 5 In the parole board’s interview
memorandum        relating   to   Toney’s       2006   parole    hearing,   the   parole
commissioner noted that “no sexual attempt [was] mentioned” in Toney’s trial
transcript. Nonetheless, Toney was consistently informed by the TDCJ and
TBPP that he was being identified as a sex offender, despite his challenges to
that classification. He was also informed, however, that he would not be
required to register as a sex offender.
      In 2008, the TDCJ parole division provided Toney with a form entitled
“Notice and Opportunity to Respond: Pre-Imposition of Sex Offender Special
Conditions.” The form indicated that the parole division was “considering
requesting the [TBPP] to impose Special Condition ‘X,’” given that Toney’s
offense “allegedly involved attempting to sexually assault the female victim.”
The notice informed Toney that he had the right to submit a statement and
documentation on his behalf to challenge the imposition of the condition.
Toney submitted several letters in response, but the TBPP concluded that



      5 In 2012, one of the parole board members apparently voted to grant Toney parole
pending sex offender treatment, but that vote was withdrawn.
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                                   No. 14-50331
“Offender Toney is identified as a sex offender due to” his conviction, “during
which the subject attempted to sexually assault an adult female.” 6 That year,
Toney was denied parole and, as with respect to his other parole denials, the
stated reason for the denial was “2D.”
      Since 2004, Toney’s TDCJ Individualized Treatment Plan (“ITP”)—
which contains “a record of the inmate’s institutional progress,” “the results of
any assessment of the inmate,” “the dates on which the inmate must
participate in any subsequent assessment,” and “all of the treatment and
programming needs of the inmate,” Tex. Gov’t Code § 508.152(b-1), indicated
that Toney had a need for a sex offender treatment program. Printouts of
Toney’s ITP in 2007 and 2011 show that under the Sex Offender Treatment
Program (“SOTP”) category, Toney had a need of “3”—indicating that he had a
“High Need” for the program and should “Enroll Now.” 7              The SOTP “is
approximately 18-months in duration and is comprised of three treatment
phases.” “Phase I,” which lasts three months, consists of various classes, as
well as a psychological evaluation. “Phase II” lasts twelve months and involves
intensive therapy. “Phase III” lasts three months, and consists of transition
and release preparation. Toney’s ITP printouts contain the code “PA” under
the SOTP field. According to the ITP manual of procedures, “PA” stands for
“Pending Assignment” and:
      This code reflects an offender has a need for a program, however,
      pre-entrance testing must be completed prior to enrollment. Each
      treatment department should be able to identify personnel who are
      qualified to administer these types of tests. This code should only
      be used for specific programs requiring assessment testing prior to
      enrollment . . . .



      6 This conclusion was indicated on Toney’s TBPP case summaries until as late as
August 23, 2012.
      7 The printouts also contain the comment: “Burg[lary] is Sex Related.”

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The code “PR,” which indicates that “the offender has refused to participate in
a non-voluntary program,” does not appear on Toney’s ITP printouts. The ITP
manual notes that “offenders may be subject to disciplinary action for refusing
to attend a treatment program specified by the ITP team regardless of parole
eligibility.”
         In 2012, after this suit was filed, a manager of the Sex Offender
Rehabilitation Programs (“SORP”) reviewed Toney’s ITP.                        The manager
concluded that Toney should not have been identified as a sex offender. Thus,
the manager “directed a staff member to delete the ‘PA’ designation” under the
SOTP field. This change is reflected on a January 2013 printout of Toney’s
ITP. 8
         Toney points to additional consequences he faced due to his classification
as a sex offender. For example, he contends that his sex offender status
precluded him from participating in college trade classes. Toney was also
deemed ineligible for placement in substance abuse treatment “due to Sex
Offender status.” Moreover, Toney asserts that in November 2007, he put in
for a transfer to a different prison unit “[i]n fear that his peers . . . would find
out that [he] was . . . identified as a sex offender;” the transfer was granted. 9
In 2011, according to Toney, he was involuntarily transferred to another unit,


         8This action does not render Toney’s claims for injunctive and declaratory relief moot.
Toney’s most recent TBPP “case summary” indicates that “Toney is identified as a sex
offender.” This case summary is dated August 23, 2012, several months after Appellees
purportedly recognized that they had errantly classified Toney as a sex offender.
Furthermore, the operative complaint makes clear that, as part of the requested injunctive
relief, Toney seeks “[e]xpunge[ment] [of] all information systems or written records
designating Toney prior and during the pendency of this suit as a sex offender.” (emphasis
removed). There is no evidence that Appellees have removed Toney’s sex offender
classification from any records other than from his ITP. Accordingly, “an actual, live
controversy” remains with respect to Toney’s requests for injunctive and declaratory relief.
United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (internal quotation marks
omitted).
        9 However, a letter Toney wrote to the warden indicates that he sought the transfer

to be closer to aging relatives.
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                                       No. 14-50331
the Ellis Unit, where “they have Sex Offender Treatment Programs.” 10 In
general, Toney asserts that his sex offender status caused him “great stress,
and mental anguish” and caused him to become “ill, with physical symptoms.”
   C. Procedural History
       Toney, proceeding pro se and in forma pauperis, brought this action
pursuant to 42 U.S.C. § 1983, alleging violations of the due process clause of
the Fourteenth Amendment. Toney also alleges due process violations under
the Texas Constitution, as well as a violation of the “Texas Sep[a]ration of
Powers doctrine.” According to Toney, his rights were violated when Appellees
categorized him as a sex offender without providing him notice and an
opportunity to challenge the classification. Toney has named as defendants,
both in their individual and official capacities: (1) Rissie Owens, the presiding
officer of the TBPP; (2) Conrith Davis, a board member of the TBPP; (3) Tony
Garcia, a commissioner of the TBPP; (4) Gerald Garrett, a commissioner of the
TBPP; (5) Brad Livingston, the executive director of the Texas Board of
Criminal Justice; (6) Rick Thaler, the operational director of the TDCJ; and (7)
Stuart Jenkins, the director of the parole division of the TDCJ. Toney seeks
compensatory, injunctive, and declaratory relief from those individuals. Toney
has also named as defendants, solely in their official capacities, three parole
officers: (1) Donniea Garrett; (2) Rueth Palad; and (3) Barbara Church. Toney
seeks only declaratory and injunctive relief from those individuals.
       Appellees and Toney filed cross-motions for summary judgment on all
claims. Appellees asserted qualified immunity to the extent they were being
sued in their individual capacities. The district court referred both motions to



       10 Appellees contend that this transfer was necessary because the unit at which Toney
was previously housed, the Central Unit, was being closed. Toney responds that although
over 900 offenders were transferred out of the Central Unit at this time, “[o]nly a select few
(sex offenders) were transferred to the Ellis Unit where sex offender treatment is held.”
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                                       No. 14-50331
the magistrate judge, who issued a report and recommendation.                              The
magistrate judge reasoned that neither the denials of Toney’s parole nor
Toney’s classification as a sex offender triggered a liberty interest under the
due process clause, and thus recommended that Toney’s federal constitutional
claims be dismissed. 11 The magistrate judge further recommended that the
district court decline to exercise supplemental jurisdiction over Toney’s state
law claims, given its recommendation that the federal claims be dismissed.
Toney filed objections to the magistrate judge’s report and recommendation.
The district court overruled the objections, adopted the report and
recommendation, and entered judgment dismissing all of Toney’s claims.
Toney timely appeals.
                                II.    Standard of Review
       This court reviews de novo a district court’s order granting a defendant’s
motion for summary judgment, applying the same standard as did the district
court. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.
2006). “Summary judgment is appropriate ‘if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co.,
732 F.3d 555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). This court
views the evidence in the light most favorable to the non-moving party. United
Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).
       With respect to claims brought under 42 U.S.C. § 1983, government
officials performing discretionary functions are entitled to qualified immunity,



       11 The magistrate judge also concluded that Appellees sued in their individual
capacities were protected by qualified immunity, given that there was no constitutional
violation. The magistrate judge further reasoned that even if Toney could establish a
violation of his constitutional rights, “the issue he has raised is one of first impression, and
thus any constitutional right he might have was not ‘clearly established’ at the time the
challenged actions took place.”
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                                 No. 14-50331
i.e., they “‘generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” McClendon v. City of
Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “[W]hen a defendant invokes the defense
of qualified immunity, the burden is on the plaintiff to demonstrate the
inapplicability of the defense.” Kitchen v. Dallas Cnty., 759 F.3d 468, 476 (5th
Cir. 2014). “The two-part inquiry into qualified immunity is first ‘whether a
constitutional right would have been violated on the facts alleged,’ and second
‘whether the right was clearly established’ at the time of violation.’”       Id.
(quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)). Courts are “permitted to
exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S.
223, 236 (2009).
                                III.   Discussion
      The procedural protections of the due process clause are triggered only
where there has been a deprivation of life, liberty, or property. Wilkinson v.
Austin, 545 U.S. 209, 221 (2005). Because neither Toney’s life nor property
interests are at stake, the “threshold question” is “whether he had a liberty
interest that the prison action implicated or infringed.” Richardson v. Joslin,
501 F.3d 415, 418 (5th Cir. 2007) (internal quotation marks omitted). In
Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that the focus
of this inquiry should be on “the nature of the deprivation,” not “the language
of a particular regulation.” Id. at 481–82. Accordingly, although “[s]tates may
under certain circumstances create liberty interests which are protected by the
Due Process Clause,” such “interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an unexpected
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                                 No. 14-50331
manner as to give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.”    Id. at 483–84 (internal
citations omitted).
            1. Relevant Caselaw
      Several cases from the Supreme Court, this court, and various other
circuit courts are especially relevant to Toney’s contention that his
classification as a sex offender triggered his liberty interests. A brief summary
of those cases is therefore appropriate.
      First, in 1980, the Supreme Court held that an inmate’s liberty interests
were triggered due to his transfer from a state prison to a mental hospital
pursuant to a state statute. Vitek v. Jones, 445 U.S. 480, 488 (1980). The Court
reasoned that “[t]he loss of liberty produced by an involuntary commitment is
more than a loss of freedom from confinement,” as commitment to a mental
hospital “can engender adverse social consequences to the individual.” Id. at
492 (internal quotation marks omitted). “[W]hether we label this phenomena
‘stigma’ or choose to call it something else . . . we recognize that it can occur
and that it can have a very significant impact on the individual.” Id. at 492
(internal quotation marks omitted). The Court focused particularly on the
“[c]ompelled treatment in the form of mandatory behavior modification
programs” incumbent on the transfer. Id. According to the Court, diagnosing
a prisoner with “a mental illness and . . . subject[ing] him involuntarily to
institutional care in a mental hospital” are consequences “qualitatively
different from the punishment characteristically suffered by a person convicted
of crime.” Id. at 493. Thus, “the stigmatizing consequences of a transfer to a
mental hospital for involuntary psychiatric treatment, coupled with the
subjection of the prisoner to mandatory behavior modification as a treatment


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                                 No. 14-50331
for mental illness, constitute the kind of deprivations of liberty that requires
procedural protections.” Id. at 494.
      Relying in part on Vitek, a line of Fifth Circuit cases have held that the
imposition of sex offender parole conditions implicates parolees’ liberty
interests. In Coleman v. Dretke, 395 F.3d 216, 219 (5th Cir. 2004) (Coleman I),
Coleman was released from prison on mandatory supervision, with conditions
requiring that he (1) register as a sex offender, and (2) attend sex offender
therapy. Id. at 219. He “registered, but failed to enroll or participate in
therapy,” and, as a result, his parole was revoked. Id. Coleman brought a
petition for writ of habeas corpus challenging the revocation on due process
grounds, as he “was not given advance notice or a hearing to contest the
imposition of these conditions.” Id. This court agreed with holdings from the
Ninth and Eleventh Circuits “that prisoners who have not been convicted of a
sex offense have a liberty interest created by the Due Process Clause in
freedom from sex offender classification and conditions.”      Id. at 222. We
reasoned that “[t]he facts of the present case are materially indistinguishable
from Vitek” as “the state imposed stigmatizing classification and treatment on
Coleman without providing him any process.” Id. at 223. “The state’s sex
offender therapy, involving intrusive and behavior-modifying techniques, is
also analogous to the treatment provided for in Vitek.” Id. Although we
recognized that “many parolees are required to participate in some form of
counseling or treatment as a condition on their release,” we found “that, due to
its highly invasive nature, Texas’s sex offender therapy program is
‘qualitatively different’ from other conditions which may attend an inmate’s
release.”   Id.   We therefore concluded that “the Due Process Clause, as
interpreted in Vitek, provides Coleman with a liberty interest in freedom from
the stigma and compelled treatment on which his parole was conditioned, and
the state was required to provide procedural protections before imposing such
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                                  No. 14-50331
conditions.” Id. In denying rehearing en banc, Coleman v. Dretke, 409 F.3d
665 (5th Cir. 2005) (Coleman II), this court clarified that even though it became
clear that Coleman was not subject to sex offender registration, that fact did
not affect the court’s holding: “Whether or not Coleman must now list his name
on an official roster, by requiring him to attend sex offender therapy, the state
labeled him a sex offender—a label which strongly implies that Coleman has
been convicted of a sex offense and which can undoubtedly cause adverse social
consequences.” Id. at 668 (internal quotation marks omitted). Moreover, we
noted that “the state’s imposition of sex offender status and therapy as
conditions of Coleman’s release fits squarely within the material facts of Vitek.”
Id.; see also id. at 669 (“Vitek imposed an obligation on the states to provide
process before imposing stigmatizing classifications and concomitant behavior
modification therapy on individuals in their custody. The panel opinion does
nothing more.”).
       In Jennings v. Owens, 602 F.3d 652, 658 (5th Cir. 2010), we determined
that the imposition of sex offender conditions of parole did not infringe a liberty
interest where the parolee had been convicted of a sex offense. Id. at 659. We
noted that “both Coleman opinions rely on Supreme Court precedent in the
form of Vitek and Sandin for the proposition that procedural due process
claimants must establish stigma—in addition to qualitatively different
conditions—to claim an unconstitutional infringement of a liberty interest,
regardless of whether reputational harm is alleged.” Id. at 659 n.9. Although
“the parole board admittedly label[ed] [Jennings] as a sex offender,” such a
“label is not false as applied to Jennings; it accurately reflects Jennings’s
status, and he had a full and fair opportunity to contest that status.” Id. at
659.
       This court revisited the issue of sex offender parole conditions in Meza v.
Livingston, 607 F.3d 392 (5th Cir. 2010) (Meza I). The plaintiff, a parolee never
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                                      No. 14-50331
convicted of a sex offense, brought a Section 1983 action against TBPP and
TDCJ employees for violations of his right to due process based on the sex
offender conditions attached to his mandatory supervision. Id. at 395. The
conditions included Special Condition X, which “required, among other things,
that Meza participate in sex offender therapy,” as well as a condition requiring
that Meza register as a sex offender. Id. at 396. In light of Coleman I, the
TBPP had “developed a procedure for providing due process to individuals who
were not convicted of a sex offense but could have sex offender conditions
attached to their parole or mandatory supervision.” Id. at 397. Based on
Coleman I, we concluded that “it is clear that Meza had a liberty interest in
being free from being required to register as a sex offender and participate in
sex offender therapy.” Id. at 401. We then held that the procedures adopted
by the TBPP did not meet constitutional muster, noting that “Meza’s liberty
interest in being free from the stigma of registering as a sex offender and
avoiding highly invasive sex offender therapy is palpable.” Id. at 403. 12
       Cases from other circuits have also analyzed the due process
implications of sex offender classification and treatment. In Neal v. Shimoda,
131 F.3d 818 (9th Cir. 1997), the Ninth Circuit confronted Hawaii’s Sex
Offender Treatment Program, which labeled inmates as sex offenders and
compelled their participation in a 25-session psychoeducational treatment
program as a precondition to their eligibility for parole. Id. at 821–22. Neal,
who was classified as a sex offender, refused to complete the program and filed
suit under Section 1983. Id. at 822. The court could “hardly conceive of a
state’s action bearing more ‘stigmatizing consequences’ than the labeling of a
prison inmate as a sex offender.” Id. at 829. The court rejected the argument


       12This court issued a subsequent unpublished opinion clarifying its opinion in Meza
I. See Meza v. Livingston, No. 09-50367, 2010 WL 6511727 (5th Cir. Oct. 19, 2010) (Meza II).
The opinion does not differ in material respects from Meza I.
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                                  No. 14-50331
that the treatment program at issue was voluntary: “[B]ecause the State’s
regulations render the inmate completely ineligible for parole if the treatment
program is not satisfactorily completed, the attachment of the ‘sex offender’
label to the targeted inmate has a practical and inevitable coercive effect on
the inmate’s conduct.” Id. Thus, the court concluded that “the stigmatizing
consequences of the attachment of the ‘sex offender’ label coupled with the
subjection of the targeted inmate to a mandatory treatment program whose
successful completion is a precondition for parole eligibility create the kind of
deprivations of liberty that require procedural protections.” Id. at 830.
      In Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999), an Alabama
inmate brought a Section 1983 suit challenging his classification as a sex
offender and the requirement that he “participate in group therapy sessions of
Sexual Offenders Anonymous as a prerequisite for parole eligibility.” Id. at
1288. His classification also rendered him ineligible for a minimum custody
classification, which is a prerequisite for certain work-release and community
custody programs. Id. Analogizing to Vitek, the court reasoned that “[t]he
compelled     treatment      through     mandatory       behavior     modification
programs . . . was a proper factor to be considered” in the liberty interest
analysis. Id. at 1292. Ultimately, the court concluded that “the stigmatizing
effect of being classified as a sex offender constitutes a deprivation of liberty
under the Due Process Clause.” Id.
      The Tenth Circuit addressed a similar scenario in Chambers v. Colorado
Department of Corrections, 205 F.3d 1237 (10th Cir. 2000), in which an inmate
was classified as a sex offender and ordered to participate in sex offender
treatment. Id. at 1238. Chambers did not participate in the treatment and,
as a result, his good time credits were reduced by three days. Id. at 1239. The
court reasoned that “although the [department of corrections] has not created
a liberty interest in a prisoner’s not being classified a sex offender,” the removal
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                                 No. 14-50331
of his good time credits triggered such an interest. Id. at 1242. The court also
noted that “it is the label replete with inchoate stigmatization—here based on
bare allegations which are vigorously denied and which have never been
tested—which requires some procedural scrutiny.” Id.
      Finally, the Third Circuit in Renchenski v. Williams, 622 F.3d 315 (3d
Cir. 2010), addressed an inmate’s sex offender classification.        Due to his
classification, Renchenski was enrolled in “a slew of prison programs, including
sex offender orientation, sex offender core, and sex offender maintenance.” Id.
at 321.   Renchenski, however, refused to submit to an assessment and
therefore did not participate in those programs. Id. at 322. This refusal
“subject[ed] him to substantial penalties, including the loss of his prison job,
assignment to disciplinary custody for ninety days, cell restriction for thirty
days, suspension of the right to receive visitors, and loss of privileges such as
access to television, radio and the commissary.” Id. at 323. In analyzing
whether Renchenski’s liberty interests were implicated, the court reasoned
that “[i]t is largely without question . . . that the sex offender label severely
stigmatizes an individual, and that a prisoner labeled as a sex offender faces
unique challenges in the prison environment.” Id. at 326. In addition, the
court stated that the treatment program at issue, “which consists of weekly
psychotherapy sessions for approximately two years, is sufficiently similar to
the forced transfer to a mental institution that the Supreme Court determined
triggered a liberty interest in Vitek.” Id. at 327. According to the court,
“compelled treatment, i.e., sex offender therapy, changes the conditions of
Renchenski’s sentence and, accordingly, constitutes a loss of liberty that
exceeds his loss of freedom from confinement.”        Id.   The court therefore
concluded “that labeling a prisoner a sex offender and forcing him or her to
submit to intensive therapy triggers a liberty interest.” Id.


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                                  No. 14-50331
            2. Toney’s Due Process Claim
      We conclude that neither Toney’s classification as a sex offender, nor the
consequences flowing from that classification, implicated Toney’s liberty
interests under the due process clause.
      First, there is little doubt that Toney suffered stigma as a result of his
classification. See Meza I, 607 F.3d at 402 (“‘We can hardly conceive of a state’s
action bearing more ‘stigmatizing consequences’ than the labeling of a prison
inmate as a sex offender.’” (quoting Neal, 131 F.3d at 829)); Coleman II, 409
F.3d at 668 (“[T]he state labeled [Coleman] a sex offender—a label which
strongly implies that Coleman has been convicted of a sex offense and which
can undoubtedly cause adverse social consequences.” (internal quotation
marks omitted)). Nonetheless, our cases, and those from other courts, suggest
that stigma alone is insufficient to trigger a liberty interest under the due
process clause. Indeed, we have stated that “both Coleman opinions rely on
Supreme Court precedent in the form of Vitek and Sandin for the proposition
that procedural due process claimants must establish stigma—in addition to
qualitatively different conditions—to claim an unconstitutional infringement
of a liberty interest, regardless of whether reputational harm is alleged.”
Jennings, 602 F.3d at 659 n.9 (emphasis added); see also Vitek, 445 U.S. at 494
(“[T]he stigmatizing consequences of a transfer to a mental hospital for
involuntary psychiatric treatment, coupled with the subjection of the prisoner
to mandatory behavior modification as a treatment for mental illness,
constitute the kind of deprivations of liberty that requires procedural
protections.” (emphasis added)); Meza I, 607 F.3d at 401 (“[I]t is clear that
Meza had a liberty interest in being free from being required to register as a
sex offender and participate in sex offender therapy.” (emphasis added));
Coleman II, 409 F.3d at 669 (“Vitek imposed an obligation on the states to
provide process before imposing stigmatizing classifications and concomitant
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                                 No. 14-50331
behavior modification therapy on individuals in their custody.        The panel
opinion does nothing more.” (emphasis added)); Coleman I, 395 F.3d at 223
(“[T]he Due Process Clause, as interpreted in Vitek, provides Coleman with a
liberty interest in freedom from the stigma and compelled treatment on which
his parole was conditioned . . . .” (emphasis added)); Renchenski, 622 F.3d at
327 (“[L]abeling a prisoner a sex offender and forcing him or her to submit to
intensive therapy triggers a liberty interest.” (emphasis added)); Neal, 131 F.3d
at 830 (“[T]he stigmatizing consequences of the attachment of the ‘sex offender’
label coupled with the subjection of the targeted inmate to a mandatory
treatment program . . . create the kind of deprivations of liberty that require
procedural protections.” (emphasis added)). We are aware of no court that has
held that a stigmatizing classification alone implicates liberty interests under
the due process clause, and we decline to so hold today. Such a classification,
absent other consequences, does not constitute an “atypical and significant
hardship on [Toney] in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484; see also Hernandez v. Velasquez, 522 F.3d 556, 562
(5th Cir. 2008) (“[G]enerally speaking, a prisoner has no liberty interest in his
custodial classification.”).
      It is nonetheless clear from the cases discussed above that sex offender
classification triggers a liberty interest when combined with mandatory sex
offender treatment. Toney correctly notes that in these cases, the inmates or
parolees had not necessarily undergone sex offender treatment at the time they
filed suit. See Coleman I, 395 F.3d at 219; Neal, 131 F.3d at 822; Renchenski,
622 F.3d at 322; Chambers, 205 F.3d at 1239. But in each of these cases, sex
offender treatment was clearly mandated. See Coleman I, 395 F.3d at 219
(treatment a condition of parole); Renchenski, 622 F.3d at 323 (failure to
participate in treatment resulted in various penalties); Chambers, 205 F.3d at
1239 (failure to participate in treatment resulted in loss of good time credits);
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                                    No. 14-50331
Neal, 131 F.3d at 822 (treatment a precondition for parole eligibility). Here,
based on the undisputed facts, Toney was never mandated to undergo sex
offender treatment. First, it is clear that, unlike the parolees in Coleman and
Meza, sex offender conditions of parole were never imposed on Toney.
Although at one point Toney was given a form indicating that the TDCJ was
“considering requesting [that] the [TBPP] . . . impose Special Condition ‘X’,”
Toney never became subject to this condition because he was never granted
parole. 13 Second, although Toney contends that he was transferred to the Ellis
Unit in 2011 because “they have Sex Offender Treatment Programs,” there is
no evidence that Toney was ever mandated to undergo such treatment while
at Ellis.   Third, we conclude that Toney’s participation in the Static 99
Assessment did not constitute sex offender treatment.              The district court
correctly noted that this “one-page worksheet” was merely a “general risk
assessment tool.” The evaluation—which was completed by a parole officer,
not a psychiatrist or other mental health professional—consisted only of a
handful of questions relating to Toney’s history and past convictions. We hold
that such a brief, perfunctory evaluation is not so “stigmatizing and invasive”
as to render Toney’s conditions of incarceration “qualitatively different” from
those of other inmates. Meza I, 607 F.3d at 401 (internal quotation marks
omitted). Finally, we conclude, based on the undisputed facts, that Toney was
never mandated to complete the SOTP 18-month treatment program.
Although Toney’s ITP printouts showed that Toney had a “High Need” for the
program and should “Enroll Now,” the ITPs also indicated that Toney was
“Pending Assignment” to the program—i.e., that “pre-entrance testing must be
completed prior to enrollment.” Thus, Toney was never assigned to the SOTP


      13 Even if Toney had been granted parole, imposition of the condition was not
automatic even considering his sex offender classification, as the TBPP had discretion to
decide whether to impose the condition.
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                                     No. 14-50331
and was therefore never mandated to complete the program. Although Toney
has identified penalties that may result from his refusal to participate in a
required program, there is no indication that Toney was required to, or refused
to, participate in the SOTP. 14 Cf. Renchenski, 622 F.3d at 322, 330 (noting
Renchenski’s refusal to participate in therapy); Chambers, 205 F.3d at 1239
(“Because Mr. Chambers did not participate in the program, Ms. Bachicha
recommended reducing the monthly ten days of earned time credit he received
to seven days.”); Neal, 131 F.3d at 822 (“Neal has never participated in the
SOTP and has refused to sign and complete the SOTP Contract and Consent
to Treat form.”).
       The other consequences Toney faced due to his sex offender classification
also fail to give rise to a liberty interest. First, Toney contends that his sex
offender status resulted in the repeated denials of his parole. However, even
assuming the parole board relied on this factor in deciding to deny his parole,
we have consistently held that “Texas prisoners . . . cannot mount a challenge
against any state parole review procedure on procedural . . . Due Process
grounds.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (emphasis
added); see also Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (“[B]ecause
Orellana has no liberty interest in obtaining parole in Texas, he cannot
complain of the constitutionality of procedural devices attendant to parole
decisions.”). Accordingly, even if the parole board “consider[ed] unreliable or
even false information” regarding Toney’s sex offender status “in making [its]
parole determinations,” this “simply do[es] not assert a federal constitutional
violation.” Johnson, 110 F.3d at 308. Toney also points to his 2011 transfer to
the Ellis unit, but, as discussed above, Toney has provided no evidence


       14Indeed, there is a specific code—“PR”—indicating that “the offender has refused to
participate in a non-voluntary program,” but that code never appeared on Toney’s ITP
printouts.
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                                  No. 14-50331
suggesting that he was required to undergo sex offender treatment upon his
transfer to the Ellis unit. Moreover, an inmate generally “has no liberty
interest in residence in one prison or another.” Jackson v. Cain, 864 F.2d 1235,
1250 (5th Cir. 1989).      Finally, Toney’s exclusion from substance abuse
treatment and educational/vocational programs while in prison does not
implicate a liberty interest, as such restrictions do not impose “atypical and
significant hardship[s] on [Toney] in relation to the ordinary incidents of prison
life.” Sandin, 515 U.S. at 484. In an analogous scenario, this court recently
held that an inmate’s exclusion from the Inmate Financial Responsibility
program—which results in, inter alia: (1) the inmate’s inability to receive
furlough; (2) limitation of his work assignments; (3) limitation of his
commissary spending limit; (4) placement in a lower housing status; (5)
exclusion from community-based programs; and (6) loss of incentives for
entering residential drug treatment programs—did not trigger a liberty
interest. Driggers v. Cruz, 740 F.3d 333, 335, 338–39 (5th Cir. 2014) (“The[se]
. . . conditions are not so severe as to impose an atypical and significant
hardship upon the inmate in relation to the ordinary incidents of prison life.”
(internal quotation marks omitted)); see also Nathan v. Hancock, 477 F. App’x
197, 199 (5th Cir. 2012) (unpublished) (“[T]he loss of recreation and
commissary privileges . . . does not implicate a liberty interest because those
punishments do not represent the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest.” (internal quotation
marks omitted)).
      Finally, Toney argues that Appellees violated his state-created liberty
interests. In Sandin, the Court stated that although “States may under certain
circumstances create liberty interests which are protected by the Due Process
Clause,” such “interests will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to
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                                         No. 14-50331
give rise to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”            515 U.S. at 483–84 (internal citations
omitted). Moreover, because “[t]he hallmark of a statute that has not created
a liberty interest is discretion,” a protected liberty interest may be present
“only when a regulation uses mandatory language to place a substantive limit
on official discretion.” Richardson, 501 F.3d at 419 (internal quotation marks
omitted).       “A unilateral expectation of certain treatment is insufficient; a
prisoner must have a legitimate claim of entitlement to it.”                   Id. (internal
citation marks omitted).
       Here, Toney cannot even point to the violation of a state statute or
regulation.       First, Toney relies on a statute defining a “sex offender,” for
purposes of community supervision, as “a person who has been convicted or
has entered a plea of guilty or nolo contendere for” certain listed offenses. Tex.
Crim. Proc. Code art. 42.12 § 9A(a)(2). It is undisputed that Toney does not
qualify as a sex offender under this definition.                 However, this definition
pertains only to offenders who have been placed on community supervision in
lieu of the imposition of their sentence. See id. § 1. Because Appellees have
not labeled Toney as a sex offender for purposes of community supervision,
they have not violated this statute. Toney also cites to Texas’s sex offender
reporting statute, which contains a similar list of convictions that trigger
certain sex offender registration requirements. See Tex. Crim. Proc. Code art.
62.001(5). Again, Toney cannot show a violation of this statute, as there is no
evidence that Toney has been compelled to register as a sex offender. 15 In
addition, because the sex offender registration statute requires that the Static



       15   Indeed, Toney was specifically informed that he would not have to register as a sex
offender.
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                                    No. 14-50331
99 Assessment be used for “person[s] subject to registration under this
chapter,” Tex. Crim. Proc. Code art. 62.007(b)(1), Toney contends that his
forced participation in the assessment was in violation of the statute. But
because there is nothing in the statute prohibiting the use of the Static 99
Assessment on inmates not subject to registration, this provision is inapposite.
See id. Toney also relies on various prison and parole regulations and policies
in support of his state-created liberty interest argument, but he does not argue
that Appellees’ violation of these policies implicated his liberty interests.
Rather, he contends that those policies, which allow a person not convicted of
a sex offense to be deemed a sex offender, violate the statutes discussed above.
But Toney’s classification as a sex offender for purposes of potential SOTP
treatment, parole, or other consequences, is entirely separate from the
classification of a sex offender for sex offender registration or community
supervision purposes. Thus, because Toney cannot establish a violation of
these statutes or regulations, his state-created liberty interest arguments
necessarily fail.
                                   IV.    Conclusion
      Because Toney has not shown an infringement of his liberty interests,
the district court did not err in dismissing his federal due process claims.
Accordingly, because Toney has not established a violation of his constitutional
rights, the district court correctly granted qualified immunity to Appellees
sued in their individual capacities. See Saucier, 533 U.S. at 200. Finally, we
affirm the district court’s decision not to exercise supplemental jurisdiction
over Toney’s state law claims, which Toney does not challenge. Therefore, the
judgment of the district court is AFFIRMED. 16



      16  We also deny as unnecessary Toney’s motion for leave to file additional record
excerpts, as the documents Toney seeks leave to file are already contained in the record.
                                           23
