United States Court of Appeals 

for the Fifth Circuit 

No. 19-10862 

Lisa A. Biron, 

Plaintiff—Appellant, 

versus

Jody Upton, Warden; Leticia A. Armstrong; Emily 

Dixon, 

Defendants—Appellees. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:19-CV-322 

Before Stewart, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Lisa Biron, a federal inmate proceeding pro se, 

appeals the dismissal of her complaint seeking monetary damages and 

injunctive relief arising from prison psychologists’ confiscation of a lengthy 

manuscript she had written. Finding no reversible error, we AFFIRM. 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 14, 2022 

Lyle W. Cayce 

Clerk 

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I. 

Biron was convicted by a New Hampshire federal jury of eight counts 

involving the sexual exploitation of her minor daughter. Biron v. United 

States, No. 16-CV-108-PB, 2017 WL 4402394, at *1 (D.N.H. Oct. 2, 2017). 

She was sentenced to 480 months’ imprisonment. 

Biron is currently housed at Waseca Federal Correctional Institution 

in Minnesota, but she previously received mental health and sex offender 

treatment at Carswell Federal Medical Center (FMC Carswell) in Fort 

Worth, Texas. The judgment entered in Biron’s criminal case recommended 

that she “participate in a sex offender treatment program while 

incarcerated.” Biron, a former attorney, filed a pro se civil complaint in 

Texas state court against federal officials based on actions arising out of her 

treatment at FMC Carswell. She sued the following FMC Carswell 

personnel: Jody Upton, warden; Leticia A. Armstrong, psychologist; and 

Emily Dixon, psychologist. Her claims against Armstrong and Dixon are 

based on their confiscation of a 144-page manuscript Biron was writing to 

record her conclusions on Christian morality of sexual conduct. In Biron’s 

complaint filed in state court, she alleged that she “was directed by God to 

research, pray about, study the Bible concerning God’s view of morality 

involving sex and sexual conduct, and to record these findings in writing for 

use in her rehabilitation and to help educate others.” Her claim against 

Upton asserted that he failed to intervene to order the manuscript’s return. 

Biron alleged violations of her rights under the First Amendment, the 

Religious Freedom Restoration Act (RFRA), the Fifth Amendment, and 

Texas law. 

The defendants removed the case to federal court, and there moved 

to dismiss for lack of jurisdiction and failure to state a claim. In response, 

Biron filed an amended complaint seeking money damages for violations of 

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her rights under the Fifth Amendment’s Due Process Clause; RFRA; the 

Administrative Procedures Act (APA); and the First Amendment’s Free 

Exercise, Freedom of Expression, and Establishment Clauses. She further 

seeks injunctive relief ordering the return of her manuscript and cessation of 

her psychological treatment. Biron sues Upton in his official capacity and 

Armstrong and Dixon in their official and individual capacities. The 

defendants renewed their motion to dismiss, and full briefing on the motion 

followed.

The district court granted the motion in a twelve-page memorandum 

opinion, concluding that Biron’s transfer mooted most of her claims, Biron’s 

individual claims are barred by qualified immunity and a lack of a cause of 

action under Bivens, and that sovereign immunity bars Biron’s officialcapacity claims. Biron timely appealed. Construed broadly, she challenges 

the dismissal of her First Amendment claims under rule 12(b)(6) and of her 

official-capacity claims for want of jurisdiction. We have jurisdiction under 

28 U.S.C. § 1291 over this appeal from a final judgment dismissing all of 

Biron’s claims in this removed case. 

II. 

We review the district court’s dismissal under rules 12(b)(1) and 

12(b)(6) de novo. Childers v. Iglesias, 848 F.3d 412, 413 (5th Cir. 2017) (rule 

12(b)(6)); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005) 

(rule 12(b)(1)). We take all well-pled factual allegations as true and view them 

in the light most favorable to Biron. In re Katrina Canal Breaches Litig., 495 

F.3d 191, 205 (5th Cir. 2007). 

III. 

We first address Biron’s individual-capacity claims. The district court 

held that the defendants are entitled to qualified immunity against Biron’s 

RFRA claim. We have never squarely held that qualified immunity is 

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available as a defense for federal officials against RFRA claims,1 and the 

district court undertook no analysis to determine the doctrine’s applicability 

here. Cf. Stramaski v. Lawley, No. 20-20607, 2022 WL 3274132, at *6 (5th 

Cir. Aug. 11, 2022) (“Our starting point is a conviction that substantial 

analysis is necessary before deciding if qualified immunity ever applies to the 

[Fair Labor Standards Act].”). But Biron does not contend that qualified 

immunity is unavailable against her RFRA claims, and thus she has forfeited 

any such argument. We therefore consider whether Biron has alleged a 

violation of any clearly established Free Exercise right. 

Biron has identified no authority holding that a prison official’s 

mistaken designation of an inmate’s personal writings as contraband violates 

the Constitution or any federal law. Assuming that Biron’s manuscript was 

not sexually explicit, Biron cites no cases in which the Fifth Circuit or the 

Supreme Court have held that prison psychologists’ removal of a sex 

offender’s writings about “sexual conduct,” erroneously found to be 

sexually explicit, violates the Constitution. That failure alone forecloses her 

arguments against the applicability of qualified immunity. E.g., Collier v. 

Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (noting that a “plaintiff has 

the burden to negate the assertion of qualified immunity”). 

1

 During the pendency of this appeal, the Supreme Court held that damages claims 

are permissible under RFRA against federal officials sued in their individual capacities. See 

Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020). But the Court did not squarely address 

whether the doctrine applies to RFRA claims against federal officials; instead, both the 

Government and the plaintiffs in that case “agree[d] that government officials are entitled 

to assert a qualified immunity defense when sued in their individual capacities for money 

damages under RFRA.” Id. at 493 n.* Though we have not resolved this question, we did 

apply the qualified immunity analysis to a RFRA claim against state officials before RFRA 

was limited to apply only to federal officials. See Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir. 

1996). 

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Moreover, even if qualified immunity is unavailable here, Biron also 

has not established any constitutional violation. First, Biron has made no 

showing that the confiscation of her manuscript poses a “substantial[] 

burden” on her religious exercise. 42 U.S.C. § 2000bb–1(a), (b). And 

although prisoners retain many First Amendment rights, a prison regulation 

violates the First Amendment only if it is not “reasonably related to 

legitimate penological interests.” Butts v. Martin, 877 F.3d 571, 584 (5th Cir. 

2017). Biron has not shown that even a mistaken designation of her 

manuscript as sexually explicit violates this tenet. Preserving order and 

security are compelling penological interests, see Warner v. Wright, 434 F. 

App’x 333, 336 (5th Cir. 2011), prison officials may impose reasonable 

restrictions on the type and amount of property that inmates are allowed to 

possess, see Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir. 1980), and sexually 

explicit material may constitute contraband in the prison context, see 

Thompson v. Patteson, 985 F.2d 202, 205–06 (5th Cir. 1993). 

Accordingly, we need not address the district court’s conclusions 

regarding Biron’s official-capacity claims. If the defendants violated no law 

or constitutional provision in their individual capacities, they cannot be liable 

in their official capacities. Cf. Whitley v. Hanna, 726 F.3d 631, 639 (5th Cir. 

2013) (“To the extent Whitley asserts claims against Appellees in their 

official capacities, we find such claims also fail for lack of an underlying 

constitutional violation.”). 

The judgment below is AFFIRMED.

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Jennifer Walker Elrod, Circuit Judge, concurring in part* and 

dissenting in part: 

In my view, the majority opinion goes further than it should by holding 

that “the defendants violated no law or Constitutional provision.” Ante at 5. 

Because I think such a conclusion is premature at this stage, I would reverse 

in part and remand for further proceedings. 

When reviewing dismissal under rule 12(b)(6), “[w]e accept all wellpleaded facts as true and draw all reasonable inferences in favor of the plaintiff.” BG Gulf Coast LNG v. Sabine-Neches Navigation Dist., 49 F.4th 420, 

425 (5th Cir. 2022) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). In the operative complaint, Biron alleged that: 

 “[D]espite Ms. Biron’s refusal to submit to treatment by Emily 

Dixon, Defendant Dixon conducted a targeted search of Ms. Biron’s 

locker and removed all 144 pages of this manuscript draft and notes 

written by Ms. Biron . . . ”; 

 “Defendant Armstrong advised Ms. Biron that her writing would not 

be returned to her and was permanently confiscated because it was 

‘sexually explicit’”; 

*

 I agree with the majority opinion that the individual-capacity damages claims were 

properly dismissed because the officials are entitled to qualified immunity and Ms. Biron 

has not identified any violation of clearly established law. Ante at 4. And to the extent that 

qualified immunity may be inapplicable to her RFRA claims, she has forfeited any such 

arguments by failing to brief them. Id. The district court also properly dismissed most of 

Biron’s official-capacity injunction claims because she is no longer staying at the Texas 

facility (FBOP Carswell). Biron argues that these claims are not moot because she may still 

be subject to the same policy in the Minnesota facility. But even if Biron’s assertion is valid, 

she failed to name the correct defendants because none of the current defendants are 

associated with the Minnesota facility. Thus, I would dismiss these claims without 

prejudice. 

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 “It is Ms. Biron’s sincerely held religious belief that she was directed 

by God to research, pray about, and study the Bible concerning God’s 

view of morality involving sex and sexual conduct, and to record these 

findings in writing . . . ”; 

 “Defendants’ actions in confiscating Ms. Biron’s writing as ‘hard 

contraband’ served solely as forced treatment to alter her behavior”; 

 Her sincerely held religious belief “is diametrically opposed to the 

philosophical underpinnings of the secular humanistic discipline of 

psychology.”

If these allegations are true, Biron at least has one valid claim for relief 

that should not be dismissed: her request to have her writings returned. This 

claim is not moot because there is no indication that the writings have left the 

defendants’ possession. Biron stated in her brief that the “defendants still 

have [her writing],” and the defendants never denied this allegation. Rather, 

the defendants argued that they “no longer have custody or authority over 

Biron and thus are in no position to return any items to her possession.” But 

if the defendants still have possession of the writings, I see no reason why 

they cannot deliver the writings to Biron. Presumably, Biron would still be 

able to receive mail in her new correctional facility. 

Furthermore, viewed in the light most favorable to Biron, these allegations—which we must accept as true at this stage—could raise a factual 

issue as to whether the confiscation of her manuscript poses a “substantial 

burden” on her religious exercise under RFRA. 42 U.S.C. § 2000bb-1. Consequently, I think more factual development is necessary before we can conclude that “the defendants violated no law or Constitutional provision.” Ante

at 5. 

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* * * 

Contrary to the district court’s holding, Biron’s request to have her 

writings returned to her is not moot because the defendants still have possession of her writings. And viewed in the light most favorable to Biron, her 

allegations, if true, could establish that the confiscation of her manuscript 

poses a “substantial burden” on her religious exercise. 42 U.S.C. § 2000bb1. Accordingly, I would reverse in part and remand the district court’s dismissal of Biron’s injunctive relief claim to have her writings returned. 

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