United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically, Plaintiff Jonathan
Hitt's Motion to Amend [#63] and Defendant Marsha
McLane's Response [#75] in opposition; Hitt's Motion
for Partial Summary Judgment [#64], Defendants Brian Thomas
and Correct Care Recovery Solutions (CCRS)'s Response
[#73] in opposition, and McLane's Response [#74-2] in
opposition; Thomas and CCRS's Motion for Summary Judgment
[#66]; Thomas and CCRS's Motion to Supplement Motion for
Summary Judgement [#67] and Hitt's Response [#72] in
opposition; and McLane's Motion for Summary
Judgment [#65-1] and Hitt's Response [#87] in
opposition. Having reviewed the documents, the
relevant law, and the case file as a whole, the Court now
enters the following opinion and orders.
1999, Hitt was convicted on eight counts of indecency with a
child and sentenced to ten years in prison. R. & R. [#45]
at 2. In 2009, shortly before Hitt was to be released from
prison, the State of Texas filed a petition to civilly commit
Hitt under the Civil Commitment of Sexually Violent Predators
Act (SVP Act). Id. at 6. At the conclusion of the
trial, the jury unanimously found Hitt suffers from a
behavioral abnormality predisposing him to engage in
predatory acts of sexual violence. Id. The trial
court rendered a final judgment adjudicating Hitt to be a
sexually violent predator (SVP) under the statute and issued
an order of civil commitment mandating Hitt undergo
outpatient treatment and supervision until his behavioral
abnormality is no longer likely to cause him to engage in
predatory acts of sexual violence. Id. Hitt
underwent outpatient treatment from 2010 to 2015.
Id. at 6-7.
2015, Texas amended the SVP Act. Id. Whereas the SVP
Act previously provided exclusively for outpatient treatment,
the 2015 amendments instated a tiered treatment program
providing for both inpatient and outpatient treatment.
Id. The Texas Civil Commitment Office (TCCO)
notified Hitt of the amendments to the SVP Act and informed
him he had a right to a hearing regarding the changes to the
program. Id. Hitt waived his right to a hearing and
consented to enter the new, tiered treatment program.
Id. Accordingly, Hitt's order of civil
commitment was amended to reflect the changes implemented by
the 2015 amendments to the SVP Act. Id. Of
particular importance here, the amended order provides the
TCCO with authority to require Hitt to reside at the TCCO in
order to undergo inpatient treatment. McLane Mot. Summ. J.
[#65-2] Ex. A (Am. Order Civil Commitment) at 2-3 (mandating
Hitt "reside where instructed by the TCCO"). Hitt
was notified that, should he be transferred to inpatient
treatment, he possessed a right to file a petition for
release or a petition for transfer to less restrictive
January 2016, Hitt's case manager discovered Hitt had
been "forming a relationship with coworker Maria
Lopez" which included intimate physical contact.
Id. at 8. Hitt's case manager instructed him to
avoid all contact with Lopez. Id. Hitt alleges that
on February 1, 2016, TCCO Executive Director Marsha McLane
threatened to transfer Hitt into inpatient treatment at the
Texas Civil Commitment Center (TCCC) for having a secret
relationship. Id. On February 12, Hitt was given a
polygraph examination to determine whether he had been
sexually involved with Lopez. Id. Hitt failed the
polygraph and was immediately taken into custody by employees
of CCRS. Id. He was then taken to Travis County
Correctional Complex pending transport to the TCCC on
February 15, 2016. Id. Hitt alleges he never
received a due process hearing regarding his confinement at
the TCCC. Am. Compl. [#3] at 12-14, 43-45; Obj. [#50] at 6;
see also McLane Mot. Dismiss [#12] at 2 (making no
mention of any due process hearing following Hitt's
confinement at the TCCC).
April 5, 2017, Hitt filed the instant civil rights lawsuit
under 42 U.S.C. § 1983, alleging violations of the
First, Fourth, Fifth, and Fourteenth Amendments. Compl. [#1].
Hitt also brings state law claims for false imprisonment. Am.
Compl. [#3]. On March 11, 2018, the Court granted in part and
denied in part defendants' motions to dismiss Hitt's
claims. Order of March 11, 2018 [#52]. Hitt's remaining
claims are as follows: (1) a Fourth Amendment claim for
unreasonable seizure brought against Thomas and
CCRS; (2) a Fourth Amendment claim for
unreasonable seizure brought against McLane in her official
capacity; (3) a Fourteenth Amendment procedural due process
claim brought against McLane in her official capacity; (4) a
First Amendment freedom of association claim brought against
McLane in her official capacity; (5) a Fifth Amendment
self-incrimination claim brought against McLane in her
official capacity; and (6) a Fourth Amendment unreasonable
search claim brought against McLane in her official capacity.
now moves to amend his complaint for the third time, and all
parties move for summary judgment. Hitt Mot. Summ. J. [#64];
McLane Mot. Summ. J. [#65-1]; CCRS Mot. Summ. J. [#66]. These
pending motions are ripe for review.
Motion for Leave to Amend Complaint
Court previously dismissed Hitt's claims against McLane
in her personal capacity on the ground Hitt had failed to
allege facts indicating McLane was personally involved in the
constitutional deprivations complained of by Hitt. Order of
March 11, 2018 [#52] at 8. Hitt now seeks leave to amend his
complaint to add allegations regarding McLane's personal
involvement in the denial of Hitt's constitutional
rights. Mot. Amend [#63] at 1.
Court denies Hitt's motion for leave to amend. Hitt has
failed to include an executed copy of his proposed amended
complaint as required by Local Rule CV-7(b), and, as a
result, the Court is unable to judge the merits of Hitt's
motion or to determine whether amendment would be futile.
This alone is a sufficient basis for the denial of Hitt's
motion, but additional considerations also counsel against
allowing Hitt to amend his complaint. All parties have
already filed motions for summary judgment on Hitt's
remaining claims, and this case is currently set for trial
next month. In this context, any amendments to Hitt's
complaint would be prejudicial to the remaining defendants,
and for this additional reason, Hitt's motion for leave
to amend is DENIED.
Motions for Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion
for summary judgment, the court is required to view all
inferences drawn from the factual record in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986);
Washburn, 504 F.3d at 508. Further, a court
"may not make credibility determinations or weigh the
evidence" in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000); Anderson, 477 U.S. at
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
"sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for
summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S.
at 248. Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it
will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
interest of efficiency and because the parties' motions
for summary judgment overlap substantially, the Court
proceeds by evaluating the parties' motions for summary
judgment on a claim by claim basis. The Court will first
evaluate the claims against Thomas and CCRS. It then turns to
the claims brought against McLane in her official capacity as
Executive Director of the Texas Civil Commitment Office.
Claims Against Thomas and CCRS
and CCRS move for summary judgment on the claims brought
against them. CCRS Mot. Summ. J. [#66]. Hitt also moves for
summary judgment on the same claims. Hitt Mot. Summ. J. [#64]
at 15-18. The Court first examines the claims brought against
Thomas in his individual capacity and then addresses the
claims brought against CCRS.
involvement is an essential element of a civil rights cause
of action." Thompson v. Steele, 709 F.2d 381,
382 (5th Cir. 1983). Thomas and CCRS contend Thomas is
entitled to summary judgment on the claims brought against
him in his individual capacity because Hitt has failed to
present any evidence showing Thomas was personally involved
in Hitt's detention. CCRS Mot. Summ. J. [#66] at 5-6.
Court agrees Thomas is entitled to summary judgment on this
claim. In his own motion for summary judgment, Hitt clarifies
he brought claims against Thomas because Thomas "was the
Facility Director at the time Hitt's complaint was
filed." Hitt Mot. Summ. J. [#64] at 16. While
Thomas's position at the TCCC may support a claim against
Thomas in his official capacity, it is insufficient to
demonstrate the sort of personal involvement necessary to
establish a claim against Thomas in his individual capacity,
see Thompson, 709 F.2d at 283, and Hitt does not
otherwise allege or point to facts suggesting Thomas had any
personal involvement in Hitt's initial detention.
See Hitt Mot. Summ. J. [#64] at 16-17; ...