Calhoun v. Collier ( 2023 )

Case: 22-50634 Document: 00516877725 Page: 1 Date Filed: 08/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 30, 2023
No. 22-50634 Lyle W. Cayce
____________ Clerk
Lana Calhoun,
Plaintiff—Appellant,
versus
Bryan Collier; Jennifer Cosby, and her successor in interest;
Karen Stroleny,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-380
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
The issue before the court is whether Linda Calhoun, an inmate
incarcerated in Gatesville, Texas, has a right to be heard before the prison
decides whether to approve or deny her request to transfer money from her
inmate trust account to an outside bank account. The district court answered
no and granted summary judgment to the Appellees. We REVERSE.
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Factual Background
When entering the prison facility in Gatesville, Texas, all inmates are
given a Texas Department of Criminal Justice (“TDCJ”) handbook which
lays out the rules for transferring money from one offender to another
through an outside person. Rule AD-14.62, authored by Bryan Collier—the
executive director of the TDCJ—and not provided to inmates, states that
offenders shall not provide money to other offenders. The TDJC handbook
“encourage[s]” inmates with extra savings “to open a savings account with
a banking facility of their choice.” However, it also provides that a deposit
from an offender to another offender, processed through an outside person,
is a violation of TDCJ rules and will result in an investigation; confirmed
violations may result in disciplinary action.
Due to a settlement in a civil matter, Calhoun had an inmate trust fund
worth nearly $100,000.00. In December of 2019, Calhoun made a suspicious
withdrawal, and Appellee Jennifer Cosby, a former senior warden, notified
her that she was under investigation for trafficking and trading by sending
money to outside persons who were then depositing money to the trust fund
accounts of other inmates. Shortly after, Calhoun was found guilty of the
lowest level of rule violation. Calhoun now asserts that, years later, she has
submitted approximately three or four separate withdrawal requests to
TDCJ, which were all denied without notice or an opportunity to be heard in
violation of her procedural due process rights.
Procedural Background
Proceeding pro se, Calhoun filed this suit on May 11, 2020 and filed
her amended complaint on June 11, 2020. On July 2, 2020, the district court
dismissed the case for failure to state a claim on the ground that state tort law
provided a meaningful post-deprivation remedy. On September 13, 2021, this
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court vacated that judgment, determining Calhoun’s allegations may state a
procedural due process claim.
On October 19, 2021, Calhoun retained counsel who filed a notice of
appearance in the district court. On November 15, 2021, Appellee Bryan
Collier filed a motion to dismiss, which the court then converted to a motion
for summary judgment. Following this, on February 14, 2022, all Appellees
filed a joint motion for summary judgment. On May 26, 2022, the district
court granted summary judgment to all Appellees and entered a final
judgment. Shortly thereafter, Calhoun filed a motion for reconsideration
pursuant to Rule 59(e) and a Rule 15(a) motion for leave to file a second
amended complaint, which the district court denied. Calhoun timely
appealed.
Standard of Review
The standard of review on summary judgment is de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). The court should
grant summary judgment where there is no genuine dispute of material fact
“and the movant is entitled to judgment as a matter of law.” Id. (quoting
FED. R. CIV. P. 56(a)). This court “may affirm [summary judgment] on any
grounds supported by the record.” McGruder v. Will, 204 F.3d 220, 222 (5th
Cir. 2000).
Discussion
I. The Ex Parte Young exception applies to this case
Under the Eleventh Amendment, “Federal courts are without
jurisdiction over suits against a state, a state agency, or a state official in his
official capacity unless that state has waived its sovereign immunity or
Congress has clearly abrogated it.” Moore v. Louisiana Bd. of Elementary &
Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). But a relevant exception
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here exists under Ex parte Young: “a federal court may enjoin a state official
in his official capacity from taking future actions in furtherance of a state law
that offends federal law or the federal Constitution.” Moore, 743 F.3d at 963.
This exception only applies to state officials, and “[w]hether state
defendants are entitled to sovereign immunity is a question of law, reviewed
de novo on appeal.” Id.While the Ex parte Young doctrine is a “necessary exception to
Eleventh Amendment immunity,” the “exception is narrow.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). “It
applies only to prospective relief, does not permit judgments against state
officers declaring that they violated federal law in the past, and has no
application in suits against the States and their agencies, which are barred
regardless of the relief sought” Id. (internal citations omitted). The Ex parte
Young exception is “focused on cases in which a violation of federal law by a
state official is ongoing as opposed to cases in which federal law has been
violated at one time or over a period of time in the past . . . .” Papasan v.
Allain, 478 U.S. 265, 277–78 (1986); see also Williams ex rel. J.E. v. Reeves,
954 F.3d 729, 737 (5th Cir. 2020). “Plaintiffs must allege that ‘the defendant
is violating federal law, not simply that the defendant has done so’ at some
point in the past[.]” Reeves, 954 F.3d 729, 738 (quoting NiGen Biotech, L.L.C.
v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015)). However, actual threat of or
imminent enforcement is “not required.” Air Evac EMS, Inc. v. Texas, Dep’t
of Ins., Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir. 2017).
Any of Calhoun’s claims seeking declaratory relief based on purported
constitutional violations occurring in the past, as well as any requests for
monetary damages, are barred by the Eleventh Amendment. Reeves, 954 F.3d
at 737; see also Clay v. Texas Women’s Univ., 728 F.2d 714, 715 (5th Cir. 1984)
(“The [E]leventh [A]mendment clearly interposes a jurisdictional bar to
suits against a state by private parties who seek monetary relief from the state
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in the form of compensatory damages, punitive damages, or monetary awards
in the nature of equitable restitution . . .”). However, her claims to enjoin a
future action that might violate her constitutional rights may proceed.
Papasan, 478 U.S. at 277–78.
II. Calhoun provides evidence that her procedural due process
rights were violated, which precludes summary judgment
“[E]ven assuming Plaintiff could allege a continuing violation,” the
district court held that “her claims fail in any event.” Calhoun, 2022 WL
2823580, at *5. 1 Therefore, the district court denied Calhoun’s Rule 59(e)
motion as futile. The district court held that “even if Plaintiff were to seek to
amend her complaint or if the Court assumes that there is a threat that
Plaintiff will continue to be denied some withdrawals from her account, she
has failed to show that any such actions are constitutional violations.” Id. at
*5.
We disagree with the district court. Calhoun’s proposed second
amended complaint alleges a continuing constitutional violation. 2 “A § 1983
action may be brought for a violation of procedural due process. . . . In
procedural due process claims, the deprivation by state action of a
constitutionally protected interest in ‘life, liberty, or property’ is not in itself
_____________________
1
We assume without deciding that Calhoun failed to provide enough factual
evidence regarding an ongoing violation of her rights in her first amended complaint.
2
For example, in a supplemental response to the opposition to the summary
judgment motion, Calhoun attached an affidavit attesting that she had been denied another
withdrawal request without a hearing during the pendency of the summary judgment
motion. Lester v. Wells Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020) (“A non-
conclusory affidavit can create genuine issues of material fact that preclude summary
judgment, even if the affidavit is self-serving and uncorroborated.”); see also McClendon v.
United States, 892 F.3d 775, 784 (5th Cir. 2018) (adopting the proposition that a
“taxpayer’s self-serving and uncorroborated, but not conclusory, statements in an affidavit
or deposition can create an issue of material fact”).
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unconstitutional; what is unconstitutional is the deprivation of such an
interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125
(1990). This type of protection is also referred to as “a guarantee of fair
procedure.” Id. And it applies here because inmates have a protected
property interest in the funds in their prison trust fund accounts, entitling
them to due process with respect to any deprivation of the use of those funds.
Morris v. Livingston, 739 F.3d 740, 750 (5th Cir. 2014) (“We assume arguendo
that inmates have a protected property interest in the funds in their prison
trust fund accounts, entitling them to due process with respect to any
deprivation of these funds.”); see also Rosin v. Thaler, 417 F. App’x 432, 434
(5th Cir. 2011) (“A prisoner has a protected property interest in the funds in
his prison account.”); McCrae v. Hankins, 720 F.2d 863, 869 (5th Cir. 1983)
(when a prisoner possesses personal property, “they enjoy a protected
interest in that property that cannot be infringed without due process”),
abrogated on other grounds by Augustine v. Doe, 740 F.2d 322 (5th Cir. 1984).
Calhoun argues that she is entitled to an opportunity to be heard when
she submits requests for withdrawals, but Appellees contend that Calhoun
had the opportunity to be heard when she was subject to the original
disciplinary hearing in December of 2019. The district court relied on Morris
v. Livingston for the proposition that “the Fifth Circuit has implied the
sufficiency of the due process procedure for inmate trust fund withdrawals”
and that “the Fifth Circuit held that the prison system may take funds from
an inmate’s trust fund account for medical care and specifically rejected any
due process challenges.” Calhoun, 2022 WL 2823580, at *7 (discussing
Morris, 739 F.3d at 750–51). Morris is distinguishable. As the Morris court
noted, “Morris’s attack is on the statute itself. . . . He does not attack the
regulation that the prison adopted . . . or the regulation’s effect on him.” 739
F.3d at 750. “[B]ecause Morris does not challenge the regulation’s effect on
him, we are not presented here with any question about . . . how the prison
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has executed its policy.” Id. at 751 n.13. Before the court here, however, is a
procedural due process challenge on how the prison has executed its policy.
Calhoun does not contest that she was provided adequate due process
during the disciplinary hearing in December of 2019. Appellees are using that
hearing as a justification for why Calhoun is now not entitled to receive a
hearing—or any due process—on her withdrawal denials. This cannot be so.
One instance of providing due process in the past does not justify permanent
deprivation of an inmate’s opportunity to be heard prior to the decision on a
future withdrawal request.
“Due process, as this Court often has said, is a flexible concept that
varies with the particular situation.” Zinermon, 494 U.S. at 127. To
determine what procedural protections the Constitution requires in a
particular case generally requires consideration of three distinct factors:
First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). “Applying this test, the Court
usually has held that the Constitution requires some kind of a hearing before
the State deprives a person of liberty or property.” Zinermon, 494 U.S. at 127.
Calhoun’s property interests are undoubtedly at stake, and, considering the
evidence that was before the district court, it cannot be said as a matter of law
that the procedures were adequate, there were alternative safeguards, or that
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the administrative burden would be too great. It is up to a factfinder to
determine whether Calhoun can prove her case.
III. The court erred in not vacating the judgment and granting
Calhoun leave to amend her pleadings
Calhoun litigated pro se through the first appeal. After remand,
Calhoun then retained a lawyer about four months before Appellees filed
their motion for summary judgment and around five months before Calhoun
filed her opposition to the motion for summary judgment. During this time,
Calhoun did not file a motion for leave to file a second amended complaint.
Instead, she waited until after the district court granted Appellees’ summary
judgment motion and entered final judgment in the case. Then she filed a
motion for leave to file a second amended complaint and a Rule 59(e) motion
to alter or amend the district court’s judgment.
In this Circuit, when a district court dismisses
the complaint, but does not terminate the action
altogether, the plaintiff may amend under Rule
15(a) with permission of the district court. When
a district court dismisses an action and enters a
final judgment, however, a plaintiff may request
leave to amend only by either appealing the
judgment, or seeking to alter or reopen the
judgment under Rule 59 or 60.
Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (internal
citation omitted). Here, on the same day as issuing its summary judgment
order, the district court issued a final judgment dismissing the case with
prejudice. In Dussouy v. Gulf Coast Inv. Corp., the court dealt with a similar
situation:
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In this case, a judgment of dismissal had been
entered at the time of the offered amendment.
Granting the plaintiff’s motion, therefore, would
require the trial court to vacate the judgment. On
the day of the judgment, the plaintiff properly
moved the court to do so. Where judgment has
been entered on the pleadings, a holding that the
trial court should have permitted amendment
necessarily implies that judgment on the
pleadings was inappropriate and that therefore
the motion to vacate should have been granted.
Thus the disposition of the plaintiff’s motion to
vacate under rule 59(e) should be governed by
the same considerations controlling the exercise
of discretion under rule 15(a). Consequently, our
discussion of the motion under rule 15(a) applies
equally to the motion under rule 59(e).
660 F.2d at 596 n.1 (internal citation omitted). In short, “under these
circumstances, the considerations for a Rule 59(e) motion are governed by
Rule 15(a)[.]” Rosenzweig, 332 F.3d at 864. As the Court has held,
Rule 15(a) declares that leave to amend ‘shall be
freely given when justice so requires’; this
mandate is to be heeded. If the underlying facts
or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the
merits. In the absence of any apparent or
declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue
prejudice to the opposing party by virtue of
allowance of the amendment, futility of
amendment, etc.—the leave sought should, as
the rules require, be ‘freely given.’
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Foman v. Davis, 371 U.S. 178, 182 (1962) (internal citation omitted). And as
this Circuit has held, “A litigant’s failure to assert a claim as soon as he could
have is properly a factor to be considered in deciding whether to grant leave
to amend [but] [m]erely because a claim was not presented as promptly as
possible, however, does not vest the district court with authority to punish
the litigant.” Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982). For example,
“Amendment can be appropriate as late as trial or even after trial. Instances
abound in which appellate courts on review have required that leave to amend
be granted after dismissal or entry of judgment.” Dussouy, 660 F.2d at 598
(internal citations omitted). While this court reviews the denial of the Rule
59(e) or 15(a) motions for abuse of discretion—with a bias in favor of granting
leave to amend—“‘Discretion’ may be a misleading term, for rule 15(a)
severely restricts the judge’s freedom. . . . Thus, unless there is a substantial
reason to deny leave to amend, the discretion of the district court is not broad
enough to permit denial.” Id. at 597–98.
Calhoun’s counsel could have filed an amended complaint before
summary judgment, but “[m]erely because a claim was not presented as
promptly as possible, however, does not vest the district court with authority
to punish the litigant.” Carson, 689 at 584. As the Court has instructed,
“leave to amend ‘shall be freely given when justice so requires’; this mandate
is to be heeded.” Foman, 371 U.S. at 182. Calhoun pleads continuing
constitutional harms in her second amended complaint, and she provides
evidence in the form of a recent denial of a withdrawal request without a
hearing. Considering the law and the allegations laid out in the proposed
amended complaint, amendment is not necessarily futile. The district court
erred in not granting Calhoun’s Rule 59(e) motion and permitting her to file
an amended pleading.
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Conclusion
The judgment is VACATED. The district court is REVERSED as
to its denial of Calhoun’s Rule 59(e) motion and is directed to docket
Calhoun’s second amended complaint.
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