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Fifth Circuit Vacates Dismissal of Suit by Civilly Committed Sex Offender

by Matt Clarke

In December 2018, the Fifth Circuit Court of Appeals vacated the dismissal of a lawsuit filed by a civilly committed Texas sex offender against Tarrant County, Tarrant County Sheriff Dee Anderson and Avalon Correctional Services Fort Worth Facilities Administrator Greg Basham for retaliation and due process violations stemming from his confinement at a privately operated facility and the Tarrant County jail.

The Texas Office of Violent Sex Offender Management (OVSOM) placed civilly committed sex offender Clarence D. Brown at a facility in El Paso operated by Avalon. According to court documents, the facility – run like a prison – was surrounded by razor wire and equipped with surveillance cameras. 

Brown alleged that civilly committed sex offenders were housed with parolees and prisoners, all of whom were subject to “daily random searches” and property restrictions. He filed complaints with Avalon’s corporate office regarding property confiscations, “squalid living conditions,” harassment by staff, harassment by prisoners and parolees, and inadequate grievance procedures. Subsequently, he was sent to an Avalon facility in Fort Worth that was similar to the one in El Paso.

The day after he arrived at the Fort Worth facility, staff told Brown he would have to sign forms acknowledging and agreeing to the facility’s rules. He sought further clarification before signing. 

While awaiting a case manager to explain the forms, Basham told a staff member over the phone to instruct Brown to sign the forms immediately. Brown continued to wait for the case manager. When the case manager arrived, she told Brown that Basham had called the corporate office and rejected Brown for his facility. Staff informed him that he would be arrested for refusing to sign the forms.

Basham then approached Brown and “began yelling and screaming that he would not tolerate [Brown] causing problems at his facility like he did in El Paso,” that “he had been contacted by people in El Paso that [Brown] would be a problem,” and that Basham would not tolerate Brown contacting the corporate office. 

Soon thereafter, Brown was arrested for violating the terms of his civil commitment and booked into the Tarrant County jail as a pretrial detainee. 

He posted bond six months later. Instead of releasing him, however, Sheriff Anderson had him transferred to the Cold Springs jail where he was not provided with any sex offender counseling. Twenty days later, Brown was acquitted. Yet the Avalon case manager told him he would remain in jail until he “learned to quit filing grievances and lawsuits.” A month after that he was transferred to a facility in Houston not run by Avalon. 

Brown filed a pro se federal civil rights complaint under 42 U.S.C. § 1983, alleging retaliation and due process violations. The district court dismissed the suit without affording Brown an opportunity to amend his complaint. He then successfully appealed, amended the complaint and, one day after receiving the amended complaint, the district court again dismissed the case. Brown appealed a second time. 

The Fifth Circuit held on December 12, 2018 that Brown stated a due process claim against Anderson and Tarrant County for continuing to hold him after he posted bail, and stated a retaliation claim against Brasham for rejecting him and causing his subsequent arrest and jail confinement. However, his claims against other Avalon and OVSOM staff for holding him in “prison-like” conditions were not viable. 

“Brown has not sufficiently alleged how the conditions at Avalon’s facilities lacked a reasonable relation to Texas’s twin goals of ‘long-term supervision and treatment of sexually violent predators,’” the Fifth Circuit wrote.

Further, the Court of Appeals found the district court had erred by barring Brown from amending his complaint again to clarify his claims against other defendants, noting the lower court did “not provide[] a substantial reason for denying Brown leave to amend his complaint.” The appellate court affirmed the dismissal of Brown’s due process claims against the OVSOM and Avalon defendants, and vacated the dismissal of due process claims against Anderson and Tarrant County and the retaliation claims against Basham. The case was then remanded for further proceedings. See: Brown v. Taylor, 911 F.3d 235 (5th Cir. 2018). 

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Related legal case

Brown v. Taylor