2. The magistrate judge agreed to stay aspects of his ordered relief
pending appeal. This Court, after hearing oral argument, entered an order
staying implementation of the remainder of the ordered relief pending our
disposition of the appeal. 3. The American Civil Liberties Union of Texas, National Rifle
Association, Texas Criminal Defense Lawyers Association, Texas Council on
Family Violence and Women's Advocacy Project, and a coalition of victims'
rights groups have submitted briefs to this court as amici curiae.
4. Under Texas Revised Civil Statutes Annotated article 4413(401) as
of January 1, 1990, the powers, duties, obligations, property, and records
of the Texas Board of Pardon and Paroles were transferred to the Texas
Board of Criminal Justice. Johnson II, 910 F.Supp. at 1210 n. 2. As the
magistrate judge noted, however, this statute was repealed in 1991 and
replaced by Texas Government Code 491.001, which designates the Board of
Pardons and Paroles as a separate entity exercising the powers granted by
Code of Criminal Procedure article 42.18. Id. 5. The magistrate judge noted the tension between the requirement
for an oral statement before the panel and the typical panel's practice of
reviewing the prisoner's file and individual member voting at separate
junctures rather than at a single panel sitting. 6. Testimony adduced below indicates that the parole files of some
prisoners contain indications of prior litigation activity undertaken by
that prisoner. Our review of the record indicates that such references
are on the whole fairly generalized, e.g., typifying a prisoner as "
litigious" or noting that the prisoner spends time in the law library or
is receiving paralegal instruction. 7. For purposes of this litigation, limited discovery of parole file
materials, typically limited to in camera review of those materials by the
magistrate judge, was allowed. A number of those files, including that of
Johnson, are part of the record we review. 8. The magistrate judge below largely failed to distinguish between
Johnson's claims in his individual capacity and those brought on behalf of
the prisoner class of which he is a member. The course of our disposition
on appeal does not require us to distinguish the two, and subsequent
references in this opinion to "Johnson" may include both his personal
claims and those brought as class representative. In the ordinary case,
however, personal claims of a class representative, insofar as they
parallel class claims, should be resolved first because as a general rule
class injuries attributable to members of a class but not sustained by a
named class representative cannot be remedied in the class action lawsuit.
Lewis v. Casey, --- U.S. ----, ----, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (
1996). See, however, County of Riverside v. McLaughlin, 500 U.S. 44, 50-
52, 111 S.Ct. 1661, 1667, 114 L.Ed.2d 49 (1991) (noting exception to this
rule when representative's injury is mooted or otherwise nonjusticiable
and the nature of the injury is inherently transitory). 9. Although not necessary to our resolution of this case, we observe
that the magistrate judge's conclusion that these "statutory factors" must
be considered in each instance by individual parole panels is unsupported
by the plain language of the statute. Although these factors are to be
the basis under subsection 8(f)(5) of the "parole guidelines" which the
Board is directed to "develop and implement," nothing in the statute
suggests that a direct consideration of these factors is mandated in
individual parole evaluations. Such a reading inflates the significance
of these two factors to the detriment not only of the parole guidelines
themselves but also of the other legislative limitations upon the Board's
discretion, noted in our discussion in Subpart I, supra, and runs counter
to this Circuit's repeated holdings that the Texas parole scheme does not
create a legitimate expectation of release or concomitant protected
liberty interest. Compare Dace v. Mickelson, 816 F.2d 1277 (8th Cir.1987) (
en banc ) (discussing when state law requiring release upon finding of
particular facts may create a cognizable liberty interest). We emphasize
that this point is noted for elucidatory purposes only: in the absence of
a cognizable constitutional violation, the situation herein presented, the
interpretation and implementation of the Texas parole statute is a matter
for the appropriate state agencies and not this Court. 10. Nor do we find prisoners qua prisoners to be such a
classification insofar as the parole statute is concerned. While it is
evident that prisoners are a "class" within the context of the general
population, see Hilliard v. Ferguson, 30 F.3d 649 (5th Cir.1994), there is
a marked difference when the parole context is examined. Unlike laws
which regulate a specific sub-group in the larger society, the relevant "
general population" for parole laws is the prison population; unlike laws
that tax, regulate, subsidize, or circumscribe, parole release provisions
can never impact the ordinary citizen who has not been convicted and
incarcerated. 11. The provisions of the parole statute entitling victims or their
close family members to notification and an opportunity to respond are
part and parcel of Texas' proclaimed public policy of furthering the
rights of victims, a legitimate and rational state purpose. See Texas
Constitution, Article 1, 30. Affording such persons protection against
reprisal by maintaining the confidentiality of their protests is similarly
rational. Nor is it irrational for the state to avoid the expense and
inconvenience of formal, adversarial type parole hearings. 12. The magistrate judge cited Sandin v. Conner, --- U.S
. ----, ----, 115 S.Ct. 2293, 2302, 132 L.Ed.2d 418 (1995), for the
proposition that the Board could not use written or oral statements in
parole determinations unless the prisoner had the chance to review the
statements and, if appropriate, rebut them. Johnson II, 910 F.Supp. at
1228. First, this holding of the magistrate judge, essentially a type of
procedural Due Process hearing requirement, is contrary to settled
precedent. See, e.g., Jago v. Van Curen, 454 U.S. 14, 21-22, 102 S.Ct. 31,
36, 70 L.Ed.2d 13 (1981); Jackson v. Reese, 608 F.2d 159, 160 (5th Cir.
1979). Second, Sandin's passing reference to the procedures which Hawaii
affords to its state prisoners in the parole process was merely ancillary
to a determination that Hawaiian prisoners had no right to procedural Due
Process in the there-challenged prison disciplinary hearing, which was the
only issue before the Court. Sandin expressed no view as to whether any
character of process was constitutionally required for Hawaii parole
decisions. For these reasons, as well as those reflected in our
discussion of the reach of the Due Process Clause in the parole context,
infra, the magistrate judge's statement of the law was incorrect.
The magistrate judge also found, relying upon Cook v. Tex. Dep't of
Criminal Justice Planning Dep't, 37 F.3d 166, 168-169 (5th Cir.1994), that
the Board could not consider unadjudicated offenses in parole hearings.
Johnson II, 910 F.Supp. at 1229 n. 73. Cook, however, dealt with the
particular circumstance of prior convictions which this Court had
previously set aside on the basis of federal constitutional violations,
and stands only for the unremarkable rule that when a conviction has been
thus judicially nullified a prisoner may obtain an order enjoining use of
the voided conviction in a parole hearing, and might even be seen
essentially as a federal court enforcing its own prior order. See
Bloodgood v. Garraghty, 783 F.2d 470 (4th Cir.1986) (holding parole board
has no duty to examine validity of prisoner's convictions); United States
v. Francischine, 512 F.2d 827, 828 (5th Cir.) (same), cert. denied, 423 U.
S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). In the absence of such a
circumstance, there is nothing delimiting the Board's consideration of
prior offenses, adjudicated or unadjudicated. 13. The underlying dispute on this issue is whether (and if so, to
what extent) a prisoner enjoys a federal right to have accurate
information in his or her parole file. Compare Townsend v. Burke, 334 U.S.
736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (Due Process violation for
district court to sentence defendant based on misinformation). We
recognize that the jurisprudence in some of the other circuits is somewhat
inconsistent in this area. See, e.g., Perveler v. Estelle, 974 F.2d 1132 (
9th Cir.1991) (reviewing habeas petitions disputing state parole results
under the same administrative standard as findings of the United States
Parole Commission). Johnson relies in large measure upon Monroe v.
Thigpen, 932 F.2d 1437 (11th Cir.1991), in which the court found that a
state parole board's admitted use of false information was arbitrary and
capricious and constituted a violation of Due Process. Subsequent
Eleventh Circuit precedent, while not expressly overruling Monroe, has
noted that no Due Process rights exist for parole procedures where there
is no legitimate expectation of parole. See O'Kelley, 53 F.3d at 321-322.
Furthermore, Monroe itself limits the "right" which it uncovered to
situations where the state admits the use of false information; a
prisoner's allegations that false information was used to deny him parole
is insufficient, in the absence of such an admission, to state a claim
under section 1983. Monroe, 932 F.2d at 1442. See James v. Robinson, 863
F.Supp. 275 (E.D.Va.1994), aff'd, 45 F.3d 426 (4th Cir.1994).
Additionally, although not relied upon by Johnson, the Fourth Circuit in
Paine v. Baker, 595 F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925, 100 S.
Ct. 263, 62 L.Ed.2d 181 (1979), developed a tripartite test to determine
when "false information" should be expunged from prison records. Monroe
discussed Paine in passing and concluded that language in Paine indicating
a "due process right to be fairly considered for parole" had been
invalidated by the Supreme Court's subsequent decision in Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct.
2100, 60 L.Ed.2d 668 (1979). Monroe, 932 F.2d at 1440-1441 n. 8. In
addition, although Paine has not been expressly overruled, subsequent
Fourth Circuit cases reflecting this Circuit's view certainly undercut any
contention that the Paine analysis is still viable in the circuit which
initially formulated it. See, e.g., Hill, 64 F.3d at 170-171. Those
courts that continue to give lip service to Paine have practically
emasculated it by reading its third requirement, that the information be
relied upon to a constitutionally significant degree, in tandem with
subsequent jurisprudence recognizing that there is no procedural Due
Process protection for procedures which are unrelated to a protected
liberty interest. See Pruett v. Levi, 622 F.2d 256 (6th Cir.1980); James
; McCrery v. Mark, 823 F.Supp. 288 (E.D.Penn.1993); Goldhardt. Contrast
Lowrance v. Coughlin, 862 F.Supp. 1090, 1099 (S.D.N.Y.1994) (stating that
the Southern District of New York has recognized a constitutional right to
accurate information in a parole file). It is our view that the procedural Due Process protections created in
Monroe and Paine are in essence inconsistent with subsequent precedent in
their respective circuits and that both cases have thus been effectively
overruled. Whatever the viability of these anomalous cases today, our
precedent is definite and precise on this point: in the absence of a
cognizable liberty interest, a state prisoner cannot challenge parole
procedures under the Due Process Clause. 14. This holding is not a departure from our prior view in Johnson
I, 821 F.2d at 1122-1123. There we found only that Johnson perhaps could
state a cause of action because his allegations concerned protest letters
being used as a pretext for discriminatory treatment of the sub-class of
writ writers among the prison population. See id. at 1122 (characterizing
Johnson's claims respecting "use of protest letters in parole
determinations" as arguably including assertions "that writ writers are ...
denied equal protection in this manner" and "that use of such letters
infringes on writ writers' freedom of speech"; emphasis added). Indeed,
this Court expressly disfavored the result obtained below: "In an effort to support the district court's judgment regarding the
Parole Board's "discretionary' use of protest letters on grounds not
stated by that court, the defendants suggest that Johnson has failed to
allege sufficient facts to state a claim. Noting that the fourteenth
amendment guarantees "equal laws, not equal results,' they argue that a
rule permitting such discretion, if applied evenly, presents no
constitutional problem. We agree, but note that Johnson's allegations do
raise suggestions of invidious, group-based discrimination and
infringement of fundamental rights." Id. at 1122-23 (footnote omitted).
Moreover, we expressly reserved judgment, stating: "We intimate, of
course, no opinion concerning the possibility of his stating a claim for
which relief might be granted, or, if he does, the merits of that claim."
Id. at 1123. (Emphasis added). Because the Johnson I court's remand depended upon assumptions concerning
the identity of the group being discriminated against which are inapposite
to the findings below, and because Johnson I in any event expressly
reserved judgment as to whether a claim could even be stated, that opinion
is not inconsistent with our holdings today. 15. The magistrate judge relied upon the Supreme Court's
pronouncements in Johnson, 393 U.S. at 483-489, 89 S.Ct. at 748-750, and
Wolff v. McDonnell, 418 U.S. 539, 578-580, 94 S.Ct. 2963, 2986, 41 L.Ed.2d
935 (1974), in concluding that the state could not retaliate against
prisoners who assist other prisoners in preparing lawsuits. As the
Supreme Court's decision in Lewis and our Tighe opinion make clear,
however, while the assistance of other prisoners may be one way in which a
particular prisoner's right of constitutional access to the courts is
vindicated, such is not in and of itself a constitutional right. If State
regulation or proscription of "writ writing" endangers a prisoner's
ability to file lawsuits protected under Lewis, then it is that particular
prisoner's constitutional rights which have been violated. While
jailhouse lawyers may (or may not) present an inexpensive and relatively
burdenless means of respecting other prisoners' rights of access to the
courts, the particular means by which Texas prisoners' constitutional
rights are to be vindicated is left as a primary matter to the proper
Texas authorities, and federal courts should not intrude until "some
inmate [can] demonstrate that a nonfrivolous legal claim ha[s] been
frustrated or ... impeded." Lewis, --- U.S. at ----, 116 S.Ct. at 2181.
16. We note that, with the exception of pauper petitions under 28 U.
S.C. 1915(d) and the imposition of certain sanctions, express findings of
frivolity are typically not required before a case is summarily dismissed.
Moreover, a lawsuit which does not appear frivolous on the face of the
pleadings may turn out to be (and have been) so when the pleadings are
pierced at a preliminary hearing, discovery, summary judgment, or trial.
Because it is the prisoner who bears the burden of proving a
constitutional violation it is the prisoner who must demonstrate the
protected character, including non-frivolity, of prior lawsuits in which
he was involved. 17. Although there is record evidence concerning the persistent
litigiousness of the named class representative, Daniel Johnson, there is
no evidence of record concerning the scope or results of his litigation
activities. See, however, Johnson v. Kegans, 870 F.2d 992 (5th Cir.1989) (
section 1983 action filed by Johnson dismissed as frivolous); Holmes v.
Hardy, 852 F.2d 151 (5th Cir.1988) (section 1983 action brought by Johnson
and other prisoners dismissed as frivolous); Whittington v. Lynaugh, 842
F.2d 818 (5th Cir.1988) (section 1983 action brought by Johnson and
another prisoner dismissed as frivolous with sanctions); Johnson v. Onion,
761 F.2d 224 (5th Cir.1985) (section 1983 action filed by Johnson
dismissed due to failure to present a case or controversy). Among the
other prisoners who testified, Terrence Spellmon stated that he has filed
fifteen lawsuits since being incarcerated. Mark Fields testified that he
has filed "about 200" lawsuits, only six to eight of those being suits in
which he is the named plaintiff. Robert Delgado testified that he has
filed "about twelve lawsuits" since being incarcerated. Thomas Baranowski,
although he did not give a total number of prior lawsuits filed, alluded
to at least four separate lawsuits he has filed in his own behalf. George
Hall testified that he had filed "quite a few [lawsuits] against
Hutchinson County." Kenneth Thompson, Jr., testified that he has filed a "
considerable amount of litigation" against Texas prison officials on his
own and other prisoners' behalf. There is no finding or evidence
indicating even approximately what portion of prisoner writ writing is
constitutionally protected under the standards of Lewis and Tighe.
From our appellate review over the years of very large numbers of Texas
prisoner suits, we know that a great many--perhaps the overwhelming
majority or even almost all--of them have been without arguable merit.
18. When a substantial amount of a writ writer's time is devoted to
litigation-related activity which is unprotected, generalized references
in the parole file or during parole interviews to "litigiousness" will
usually be insufficient to prove that the state has retaliated against the
prisoner for his or her exercise of a constitutional right. 19. In this regard, the dearth of statistical or other evidence
showing the relative parole rates of writ writers versus the general
prison population is damaging to Johnson's case. While the absence of
this evidence is not necessarily fatal to the retaliation theory, it does
diminish Johnson's chances of proving causation. We are not unmindful that "[a]n action motivated by retaliation for the
exercise of a constitutionally protected right is actionable, even if the
act, when taken for a different reason, might have been legitimate."
Woods, 60 F.3d at 1165. The situation of pretext, however, concerns the
existence of retaliatory motivation, not causation. Unless the complained-
of action would not have taken place "but for" the retaliatory animus,
then the retaliation claim has not been made out. Id. at 1166. Moreover,
there must be a finding that retaliation was actually a "but for" cause of
the complained of action (denial of parole). Cf. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (in claim
for discriminatory discharge, there must be finding that discharge would
not have occurred but for discriminatory animus, not merely that
employer's stated nondiscriminatory reasons were pretextual).
20. Johnson was convicted of aggravated rape, involving the use of
a knife, and began a sentence of lifetime imprisonment on April 26, 1977.
When his conviction was affirmed on appeal, five other pending indictments
for rape were dismissed. Johnson's criminal history includes half-a-dozen
prior arrests, and he has escaped from several jails and prisons in both
Texas and Illinois. The bulk of the other prisoners who testified
similarly face a long period of incarceration for violent offenses,
typically murder and/or some variety of sexual assault, and have extensive
criminal histories. There is no substantial evidence that similarly
situated prisoners with comparable (or worse) records, but who were not
writ writers, were granted parole in the same general time frame that
these prisoners were denied it. 21. The only fair reading of this testimony is that it relates
solely to direct appeals of conviction. The staff counsel testified that "
from the mail of the criminal appellants themselves" and from "personal
conversations with some criminal defense attorneys" she was informed that
appeals were withdrawn "because they felt they would not be considered for
parole." She also said "I think some would say they couldn't get it [
parole]; others would say they wouldn't be considered." She testified
that in the court she worked for "about 55 to 60 percent of our appeals
each year are criminal. That's about 750, 800 appeals, all criminal."
Although she had been with the court some eight-and-a-half years, she
began noticing the dismissal of appeals only about three years before her
testimony. She further stated that over the last two years "to make an
estimate" she would say "about twenty" appeals--which would be less than 1.
5 percent of the total--had been thus withdrawn. This witness gave no
specifics: no names or descriptions of any particular cases, appellants,
or defense counsel; no copy or extract from any pleading or
correspondence; no particular words quoted or even paraphrased; no
record or log, formal or otherwise, of dismissed appeals; and nothing to
suggest that any of these some twenty appeals had (or were believed by
anybody to have had) any arguable merit. There was no corroboration for
her testimony. She admitted she had no knowledge whatever as to whether
appeal precluded parole consideration or had any adverse effect on it, but
was only testifying as to "the perception conveyed to" her by appellants
and their attorneys. The witness did not recount any reason given her for
the asserted beliefs of any of these some twenty appellants or their
attorneys. There is no evidence or finding that direct appeal of one's own conviction
was regarded by anybody as "writ writing." Johnson in his brief states
that "[t]he term writ writer refers to inmates who file or assist others
in filing law suits, including writs of habeas corpus and attacks on
conditions of confinement, seeking injunctive relief or monetary damages."
There is no evidence as to whether or not the Board had any policy or
practice to postpone either consideration of parole or the gathering of
information for parole consideration purposes until the conviction
resulting in the incarceration from which the inmate might be paroled
became final on direct appeal. We observe that prisoners whose sentences
are ten years or less remain in local custody pending completion of direct
appeal unless they request or consent to transfer to TDCJ-ID. See Tex.
Code Crim. Proc. Art. 42.09 sec. 4; Ex Parte Rodriguez, 597 S.W.2d 771 (
Tex.Crim.App.1980). There is absolutely no evidence that the Board had
any policy or practice to deny parole to an inmate once his conviction
became final on appeal in whole or in part because the conviction had been
appealed (or that whether the conviction was appealed was ever noted or
discussed in the parole process). In sum, the testimony of the staff attorney is essentially irrelevant.
Moreover, it is far too attenuated and weak--speaking at most to her
conclusory impression of why less than 1.5 percent of criminal direct
appeals were voluntarily dismissed in a two-year period--to support any
finding of a general chilling effect respecting writ writing.
22. Johnson presented no evidence of reduced filings or filings
below what would be normally expected. We observe that in the twelve
months ending June 30, 1985, a total of 2,127 suits were filed by Texas
prisoners in federal district court in Texas. In the twelve months ending
June 30, 1990, the total was 2,457; in the twelve months ending September
30, 1995, it had reached 5,547. Annual Report of the Director of the
Administrative Office of the U.S. Courts, 1985, 1990, 1995. It is hard to
see that there has been any "chilling." 23. To order relief, whether under a retaliation theory or an equal
protection theory, the magistrate judge must conclude in this connection,
on the basis of adequate evidence, that consideration of protected
litigation activities by individual Board members was undertaken pursuant
to an established, albeit possibly unwritten or unofficial, custom or
policy of the Board. 24. The class certified, however, was all present and future
inmates of TDCJ-ID, not writ writers, much less those engaged in
constitutionally protected writ writing. 25. Cf., e.g., Justice Powell's observations in Schneckloth v.
Bustamonte, 412 U.S. 218, 260-262, 93 S.Ct. 2041, 2065, 36 L.Ed.2d 854 (
1973) (Powell, J., concurring, joined by the Chief Justice and Justice
Rehnquist): "At some point the law must convey to those in custody that a wrong has
been committed, that consequent punishment has been imposed, that one
should no longer look back with the view to resurrecting every imaginable
basis for further litigation but rather should look forward to
rehabilitation and to becoming a constructive citizen." (Footnote omitted
). Justice Blackmun stated that he agreed "with nearly all that Mr. Justice
Powell has to say in his detailed and persuasive concurring opinion." Id.
at 249, 93 S.Ct. at 2059. This portion of Justice Powell's Schneckloth
concurrence was cited with approval in Kuhlmann v. Wilson, 477 U.S. 436,
451-453, 106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986). 26. There is no finding and no evidence tending to indicate even
approximately what portion of prisoner writ writing is constitutionally
protected. Our experience would suggest that it is extremely small. See
note 17, supra.
