### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 50331

MICHAEL SCOTT TONEY,

Plaintiff

- Appellant

v. RISSIE OWENS; BRAD LIVINGSTON; GERALD GARRETT; TONY GARCIA; RICK THALER; STUART JENKINS; CONRINTH DAVIS; DONNIEA GARRETT, JANE CHURCH, R. PALAD,

Defendants

- Appellees

Appeal from the United States District Court for the Western District of Texas

Before KING, DAVIS, and OWEN, Circuit Judges

. KING, Circuit Judge : Plaintiff

- Appellant Michael Toney, a Texas inmate proceeding pro se, brought this action alleging Section 1983 claims and state law claims against Appel lees, various prison officials. Toney contends that Appellees violated his right to proc edural due process by classifying him as a sex offender. The district court granted Appellees’ motion for summary judgment and denied Toney’s motion for summary judgment, concluding that Toney’s classification did not implicate his liberty interests under the due process clause. The district court further determined that Appellees sued in their individual United States Court of Appeals Fifth Circuit 

### FILED February 26, 2015 Lyle W. Cayce Clerk Case: 14-50331 Document: 00512949977 Page: 1 Date Filed: 02/26/2015No. 14

- 50331 capacities were entitled to qualified immunity. Toney appeals these rulings. For the following reasons, we AFFIRM the judgment of the district court.
I. Factual and Procedural Background Appellant Michael Scott Toney is an inmate currently incarcerated at the Ellis Unit of the Texas Department of Criminal Justice (“TDCJ”). On February 28, 1994, a jury found Toney guilty of burglary with the intent to

comm it aggravated assault with a deadly weapon. 1 Toney was sentenced to forty years’ incarceration with the TDCJ. A. The Relevant Policies During Toney’s imprisonm ent, the TDCJ and related entities promulgated various regulations relating to sex offender classification. Beginning in February 1998, the TDCJ instituted Administrative Directive (“AD”) 04.09: “Sex Offender Identification Criteria and Methods of
Reco rding Information.” The policy was cr eated to “ensure that all sex offenders under its supervision are identified for purposes of: DNA testing, sex offender treatment, release processing, parole decision

- making, case management, sex offender registration, and classificatio n decision

- making.” Toney would not have qualified as a sex offender under this directive. However, on January 30, 2004, the TDCJ instituted a revised version of the directive, AD 04.09 (rev. 2), which altered the “Sex Offender Identification Criteria” to cover inmates that have a “[c]urrent or prior conviction for a non

sexual offense with a sexual element,” and for whom “an employee of the [Sex Offender Treatment Program] or a registered sex offender treatment provider has concluded that sex offender supervision and treatm ent is warranted.” On February 20, 2007, the TDCJ enacted another revised directive , AD 04.09 (rev.

1 Toney alleges t hat he was originally indicted for burglary with the intent to commit sexual assault, but, because the judge “adjudicated that there was no evidence of a sexual assault,” Toney was then “reindicted while dropping the sexual assault.” 2 Case: 14-50331 Document: 00512949977 Page: 2 Date Filed: 02/26/2015No. 14

- 50331 3), which similarly stated that an inmate may be identified as a sex offender “if an element of sexual behavior is identified and the offender has been

con victed of . . . a non

- sexual offen se with a sexual element.” In addition, beginning in January 8, 2004, the Texas Board of Pardons and Paroles (“TBPP”) enacted “Special Condition X,” a special condition of parole or supervised release requiring that the parolee , inter alia : (1) “[e]nroll in and participate in a treatment program for sex offenders,” which may include “psychological counseling”; (2) “[s]ubmit to polygraph examinations”; and (3) refrain from engaging in a varie ty of activities. A parole pan el may impose Special Condition X “upon a ma jority vote. ” Under Special Condition X, “[s] ex offender [ s ] ” are defined as “offenders who have admitted, committed, threatened to commit, or are a party to an act which constitutes a sexual offense or sexually deviant behavior.” A July 20, 2006, revised version of Special Condition X provided a new procedure for imposing the condition on offenders with no current or prior sex offense conviction: Before submission of a request to the parole panel to impose the S ex Offender Special Condition on offenders who have no current or prior conviction for a sex offense, the parole officer or TDCJ Parole Division representative shall provide to the offender written notice and opportunity to provide a written response withi n 30 days. Upon the expiration of the notice period, the parole officer or TDCJ Parole Division representative shall provide credible information in writing to the panel that indicates that the offender has engaged in unlawful sexual conduct and could

con stitute a threat to society. The policy was revised again on November 18, 2009, slightly modifying the procedure for imposing Special Condition X on offenders with no prior sex of fense convictions by changing the last clause from “indicates that the offend er has engaged in unlawful sexual conduct and could constitute a threat

3 Case: 14-50331 Document: 00512949977 Page: 3 Date Filed: 02/26/2015No. 14

- 50331 to society” to “indicates that the offender constitutes a threat to society by reason of his lack of sexual control.” 2 The parole division of the TDCJ has also promulgated guidelines outlining certain procedures for offenders who are convicted of non

- sexual offenses but who are nonetheless identified as sex offenders for purposes of Special Condition X

. These guidelines recognize that “[p]ursuant to the United States Court of Appeals [for the] Fifth Circuit and the Texas Court of Criminal Appeals, offenders who do not have a sex offense conviction are entitled to be heard in person to present evidence, call witnesses, and confront and cross

examine witnesses prior to the imposition of Sp ecial Condition ‘X.’”
B. Toney’s Classification as a Sex Offender Toney alleges that, during his initial parole review in 2004, parole officer Donniea Garrett informed him that he was being identif ied as a sex offender. 3 According to Toney, at the end of his interview, he was required to complete a “Static 99 Sex Offender Risk Assessment” (“Static 99 Assessment”)

. This evaluation “is required for offenders [who are] being considered for parole, mandatory or discretionary mandatory supervision and [who] are identified as sex offenders in accorda nce with [AD 04.09].” The Static 99 Assessment , which is “used for as s essing offenders’ risk level,” consists of a one

- page form with ten questions relating to the offender’s history and past convictions, with corresponding point values to be assigned depending on the answers to those questions. Garrett completed the form a nd assigned Toney a total score of 3

— thus classifying Toney as a “mod[erate]” risk. 4 This “indicat[es] that [Toney]

2 The TBPP has since e nacted two subsequent versions of Special Condition X, whic h contain no relevant changes.
3 These allegations appear in Toney’s ver ified second amended complaint.
4 Toney received two points because he did not know and was unrelated to his victim, and one point for having a non

- sexua l assault conviction. 4 Case: 14-50331 Document: 00512949977 Page: 4 Date Filed: 02/26/2015No. 14

- 50331 poses a moderate danger to the community and may continue to engage in criminal sexual conduct.” The parole board denied Toney’s parole i n 2004, prov iding the reason “2D.” This reason is given where: The record indicates that the inmate committed one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others; or the instant offense or patter n of criminal activity has elements of brutality, violence, or conscious selection of victim’s vulnerability such that the inmate poses a continuing threat to public safety; or the record indicates use of a weapon. This same justification was given for eac h of Toney’s subsequent denials of parole, in 2006, 2008, 2010, 2011, and 2012

. 5 In the parole board’s interview memorandum relating to Toney’s 2006 parole hearing, the parole commissioner noted that “no sexual attempt [was] mentioned” in Tone y’s trial
tr anscript. Nonetheless, Toney was consistently informed by the TDCJ and TBPP that he was being identified as a sex offender, despite his cha llenges to that classification. He was also informed , however, that he would not be required to registe r as a sex o ffender. In 2008, the TDCJ parole division provided Toney with a form entitled “Notice and Opportunity to Respond: Pre

- Imposition of Sex Offender S pecial Conditions.” The form indicated that the parole division was “considering requesting the [TBPP] to im pose Special Condition ‘X , ’ ” given that Toney’s offense “allegedly involved attempting to sexually assaul t the female victim.” The notice informed Toney that he had the right to submit a statement and documentation on his behalf to challenge the impositio n of the condition. Toney submitted se veral letters in response, but the TBPP concluded that

5 In 2012, one of the parole board members apparently voted to grant Toney parole pending sex offender treatment , but that vote was withdrawn. 5 Case: 14-50331 Document: 00512949977 Page: 5 Date Filed: 02/26/2015No. 14

- 50331

“ Offender Toney is identified as a sex offender due to” his conviction, “during which the subject attempted to sexually assa ult an adult female.” 6 That year,
Ton ey was denied parole and, as with respect to his other parole denials, the stated reason for the denial was “2D.” Since 2004, Toney’s TDCJ Individualized Treatment Plan (“ITP”)

— which contains “a record of the inmate’s institutional progress,” “the results of any assessment of the inmate,” “the dates on which the inmate must participate in any subsequent assessment,” and “all of the treatment and programming needs of the inmate,” Tex. Gov’t Code § 508.152(b

- 1), indicated that Toney had a need for a sex offen der treatment program

. Printouts of Toney’s ITP in 2007 and 2011 show that under the Sex Offender Treatment Program (“SOTP”) category, Toney had a need of “3”

— indicating that he had a “High Need” for the program and should “Enroll Now.” 7 The SOTP “is

app roximately 18

- months in duration and is comprised of three treatment phases.” “Phase I,” which lasts three months, consists of various classes, as well as a psycho logical evaluation. “Phase II” lasts twelve months and involves intensive therapy. “Phase III” lasts three months, and consists of transition and release preparation. Toney’s ITP printouts contain the code “PA” under the SOTP field

. According to the ITP manual of procedures, “PA” stands for “Pending Assignment” and: This code reflects an offe nder has a need for a program, however, pre
- entrance testing must be completed prior to enrollment. Each treatment department should be able to identify personnel who are qualified to administer these types of tests. This code should only be used for spe cific programs requiring assessment testing prior to enrollment . . . .

6 This conclusion was indicated on Toney’s TBPP case summaries unt il as la te as August 23, 2012.
7 The printouts also contain the comment: “Burg[lary] is Sex Related.” 6 Case: 14-50331 Document: 00512949977 Page: 6 Date Filed: 02/26/2015No. 14

- 50331 The code “PR,” which indicates that “the offender has refused to participate i n

a non
- voluntary program,” does not a ppear on Toney’s ITP printouts . The ITP manual notes that “offender s may be subject to disciplinary action for refusing to attend a treatment program specified by the ITP team regardless of parole eligibility.” In 2012, after this suit was filed, a manager of the Sex Offender Rehabilitation Programs (“SORP ”) reviewed Toney’s ITP. The manager conclud ed that Toney should not have been identi fied as a sex offender. Thus, the manager “directed a staff member to delete the ‘PA’ designation” under the SOTP field

. This change is reflected on a January 2013 pri n tout of Toney’s
ITP. 8 Toney points to additional consequences he faced due to his classification as a sex offender. For example, he contends that his sex offender status precluded him from participa ting in college trade classes. Toney was also deemed ine ligible for placement in substance abuse treatment “due to Sex Offender status.” Moreover, Toney asserts that in November 2007, he put in for a transfer to a different prison unit “[i]n fear that his peers . . . would find out that [he] was . . . identif ied as a sex offender ;” the transfer was granted. 9 In 2011, according to Toney, he was involuntarily transferred to another unit,

8 This action does not render Toney’s claims for injunctive and declaratory relief moot. Toney’s most recent TBPP “case summary” indicates that “Toney is identified as a sex offender.” This case summary is dated August 23, 2012, several months after Appellees purportedly recognized that they had errantly classified Toney as a sex offender. Furthermore, the operativ e complaint makes clear that, as part of the requested injunctive relief, Toney seeks “ [ e ] xpunge[ment] [of] all information systems or written records designating Toney prior and during the pendency of this suit as a sex offender.” (emphasis removed). The re is no evidence that Appellees have removed Toney’s sex offender classification from any records other than from his ITP. Accordingly, “an actual, live controversy” remains with respect to Toney’s requests for injunctive and declaratory relief. United States v. Lares

- Meraz , 452 F.3d 352, 355 (5th Cir. 2006) (internal quotation marks omitted).
9 However, a letter Tone y wrote to the warden indicates that he sought the transfer to be close r to aging relatives. 7 Case: 14-50331 Document: 00512949977 Page: 7 Date Filed: 02/26/2015No. 14

- 50331 the Ellis Unit, where “they have Sex Offender Treat ment Programs.” 10 In general, Toney asserts that his sex offender status c aused him “great stress, and mental anguish” and caused him to become “ill, wit h physical symptoms.” C. Procedural History Toney, proceeding pro se and in forma pauperis, brought this act ion pursuant to 42 U.S.C. § 1983, alleging violations of the due process clause of the Fourteenth Amendment. Toney a lso alleges due process violations under the Texas Constitution, as well as a violation of the “Texas Sep [a] ration o f Powers doctrine.” According to Toney, his rights were violated when Appellees categorized hi m as a sex offender without providing him notice and an opportunity to challenge the classification. Toney has named as defendants, both in their individual and official capacities: (1) Rissie Owens, the presiding officer of the TBPP; (2) Conrith Davis, a board member of the TBPP; (3) Tony Garcia, a commissioner of the TBPP; (4) Gerald Garrett, a commissioner of the TBPP; (5) Brad Livingston, the executive director of the Texas Board of Criminal Justice; (6) Rick Thaler, the operational director of the TDC J; and (7) Stuart Jenkins, the director of the parole divis ion of the TDCJ. Toney seeks compensatory, injunctive, and declaratory relief from those individuals. Toney has also named as defendants, solely in their official capacities, three parole officer s: (1) Donniea Garrett; (2) Rueth Palad; and (3) Barbara Church. Toney seeks only declaratory and injunctive relief fr om those individuals. Appellees and Toney filed cross

- motions for summary judgm ent on all claims

. Appellees asserted q ualified immunity to the extent they were being sued in their individual capacities

. The district court referred both motions to

10 Appellees contend that this transfer was nec essary because the unit at which Toney was previ ously housed , the Central Unit, was being closed. Toney responds that although over 900 offender s were transferred out of the Central Unit at this time, “[o]nly a select few (sex offenders) were transferred to the Ellis Unit where sex offender tr eatment is held.” 8 Case: 14-50331 Document: 00512949977 Page: 8 Date Filed: 02/26/2015No. 14

- 50331 the magistrate judge, who issued a report and recommendation. The magistrate judge reasoned that neither the denials of Toney’s parole nor
Ton ey’s classification as a sex offender triggered a liberty interest under the due process clause, and thus recommended that Toney’s federal constitutional claims be dismissed. 11 The magistrate judge further recommended that the district court decline to exe rcise suppleme ntal jurisdiction over Toney ’ s state law claims, given its recommendation that the federal claims be dismissed. Toney filed objections to the magistrate judge’s report and r ecommendation. The district cou rt overruled the objections, adopted the report and recommendation, and entered judgment dismissing all of Toney’s claims.
Ton ey timely appeals.
II. Standard of Review
This court reviews de novo a district court’s order granting a defendant’s motion for summary judgment, apply ing the same standa rd as did the district
court. See Adams v. Travelers Indem. Co. of Conn. , 465 F.3d 156, 163 (5th Cir. 2006). “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co. , 732 F.3d 555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). This court views the evidence in the light most favorable to the non

- moving party

. United Fire & Cas. Co. v. Hixs on Bros., Inc. , 453 F.3d 283, 285 (5th Cir. 2006). With respect to claims brought under 42 U.S.C. § 1983, government officials performing discretionary functions are entitled to qualified immunity,

11 The magistrate judge also concluded that Appellees sued in their individual capacities were protected by qualified immunity, given that there was no constitutional violation. The magistrate judge further reasoned that even if Toney could establish a violation of his constitutional rights, “the issue he has raised is one of first impression, and thus any constitutional right he might have was not ‘clearly established’ at the time the challenged acti ons took place.” 9 Case: 14-50331 Document: 00512949977 Page: 9 Date Filed: 02/26/2015No. 14

- 50331 i.e. , they “‘ generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ’” McClendon v. City of Columbia , 305 F. 3d 314, 322 (5th Cir. 2002) (en banc) (quoting Harlow v.
F

itzgerald , 457 U.S. 800, 818 (1982)). “[W]hen a defendant invokes the defense of qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.” Kitchen v. Dallas Cnty. , 759 F.3d 468, 476 (5th Cir. 2014). “The two

- part inquiry into qualified immunity is first ‘whether a constitutional right would have been violated on the facts alleged,’ and second ‘whether the right was clearly established’ at the time of violation. ’” Id. (quoting Saucier v. Katz , 533 U.S. 194, 20 0 (2001)). Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. ” Pearson v. Callahan , 555 U .S. 223, 236 (2009)

. III. Discussion The procedural protections of the due process clause are triggered only
where there has been a deprivation of life, liberty, or property. Wilkinson v.
Austin , 545 U.S. 209, 221 (2005) . Because neither Toney’s life nor prop erty interests are at stake, the “th reshold question ” is “ whether he had a liberty interest that the prison action implicated or infringed. ” Richardson v. Joslin , 501 F.3d 415, 418 (5th Cir. 2007) (internal quotation marks omitted). In Sandin v. Conner , 515 U.S. 472 (1995), the Supreme Court held that the focus of this inquiry should be on “the nature of the deprivation,” not “the language of a particular regulation. ” Id. a t 481

– 82 . Accordingly, although “[s] tates may under certain circumstances creat e liberty interests which are protected by the Due Process Clause,” such “interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected
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- 50331 manner as to give rise to protection by the Due Process Cl ause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 483

– 84 (internal citations omitted).
1. Relevant Caselaw Several cases from the Supreme Court, this court , and various other circuit courts are especially relevant to Toney’s contention that his classification as a sex offender triggered his liberty interests . A brief summary of those cases is therefore appropriate. First, in 1980 , t he Supreme Court held tha t an inmate’s liberty interests

we re triggered due to his transfer from a state prison to a mental hospital pursuant to a state statute. Vitek v. Jones , 445 U.S. 480 , 488 (1980)

. The C ourt reasoned that “[t]he loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement,” as commitment to a mental hospital “can engender adverse social consequences to the individual .” Id. at 492 (internal quotation marks omitted). “[W] hether we label this phenomena ‘stigma’ or ch oose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual.” Id. at 492 (intern al quotation marks omitted). The Court focused particularly on the “[c]ompelled treatment in the form of mandatory behavior modification programs” incumbent on the transfer. Id. According to the Court, diagnosing a prisoner with “a mental illness and . . . subject[ing] him involuntarily to institutional care in a mental hospital” are consequences “quali tatively different from the punishment characteristically suffered by a person convicted of crime.” Id. at 493. Thus, “the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment

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- 50331 for mental illness, constitute the kind of deprivations of liberty that requires procedural protections. ” Id. at 494. Relying in part on Vitek , a line of Fifth Circ uit cases have held that the imposition of sex offen der parole conditions implicates parolees’ liberty interests. In Coleman v. Dretke , 395 F.3d 216, 219 (5th Cir. 2004) ( Coleman I ), Coleman was released from prison on mandatory sup ervision, with conditions requir ing that he (1) reg ister as a sex offender, and (2) attend sex offender therapy. Id. at 219. He “registered, but failed to enroll or participate in therapy,” and, as a result, his parole was revoked. Id. Coleman brought a petition for writ of habeas corpus challenging the revocation on due process grounds, as he “was not given advance notice or a hearing to contest the imposition of these conditions.” Id. This court agreed with holdings from the Ninth and Eleventh Circuits “that prisoners who have not bee n convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from sex offender classification and conditions.” Id. at 222. We reasoned that “[t] he facts of the present case are materially indistinguishable from Vitek ” as “ the state imposed stigmatizing c lassification and treatment on Coleman without providing him any process. ” Id. at 223. “The state’ s sex offender therapy, involving intrusive and behavior

- modifying techniques, is also analogous to the treatment provi ded for in Vitek. ” Id. Although we recognized that “m any parolees are required to participate in some form of counseling or treatment as a condition on their release,” we found “ that, due to
it s highly invasive nature, Texas’ s sex offender therapy prog ra m is ‘qualitatively different’ from other condit ions which may attend an inmate’ s release. ” Id. We therefore concluded that “the Due Process Clause, as interpreted in Vitek, provides Coleman with a liberty interest in freedom from the stigma and compelle d treatment on which his parole was conditioned, and the state was required to provide procedural protections before imposing such
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- 50331 conditions.” Id. In denying rehe aring en banc, Coleman v. Dretke , 409 F.3d
665 (5th Cir. 2005) ( Coleman II ) , this court clarified that even though it became cl ear that Coleman was not subject to sex offender registration, that fact did not affect the court’s holding : “Whether or not Coleman must now list his name on an official roster, by requiring him to attend sex offende r therapy, the state labeled him a sex offender

— a label which strongly implies that Coleman has been convicted of a sex offense and which can undoubtedly cause adverse social consequences.” Id. at 668 (internal quotation marks omitted). Moreover, we
note d that “the state’s imposition of sex offender status and t herapy as conditions of Coleman’ s release fits squarely within the material facts of Vitek .” Id. ; see also id. at 669 (“ Vitek imposed an obligation on the states to provide process before imposing stigmatizing classifications and concomitant behavior modification therapy on individuals in their custody. The panel opinion does nothing more. ”).
In Jennings v. Owens , 602 F.3d 652, 658 (5th Cir. 2010) , we determined that the imposition of sex offender conditions of parole did not infringe a liberty interest where the parolee had been convicted of a sex offense. Id. at 659. We noted that “ both Coleman opinions rely on Supreme Court precedent in the form of Vitek and Sandin for the proposition that pro cedural due process claimants must establish stigma

— in addition to qualitatively different
conditions

— to claim an unconstitutional infringement of a liberty interest, regardless of whethe r reputational harm is alleged.” Id. at 659 n.9. Although “the paro le board admittedly label [ ed ] [Jennings] as a sex offender,” such a “label is not false as applied to Jennings; it accurately reflects Jennings’s status, and he had a full and fair opportunity to contest that status.” Id. at
659.
T his court revisited the issu e of sex offender parole condit ions in Meza v. Livingston , 607 F.3d 392 (5th Cir. 2010) ( Meza I ). The plaintiff, a parolee never
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- 50331 convicted of a sex offense, brought a Section 1983 action against TBPP and TDCJ employees for violations of his right to d ue process based on the sex offender conditions attached to his mandatory supervision. Id. at 395. The conditions included Special Condition X, which “required, among other things, that Meza part icipate in sex offender therapy, ” as well as a condition re quiring that Meza register as a sex offender. Id. at 396. In light of Coleman I , the TBPP had “ developed a procedure for providing due process to individuals who were not convicted of a sex offense but could have sex offender conditions attached to their parole or mandatory supervision .” Id. at 397. Based on Coleman I , we concluded that “it is clear that Meza had a liberty interest in being free from being required to register as a sex offender and participate in sex offender therapy.” Id. a t 401. We then hel d that the procedures adopted by the TBPP did not meet constitutional muster, noting that “Meza’s liberty interest in being free from the stigma of registering as a sex offender and avoiding highly invasive sex offender therapy is palpable.” Id. a t 403. 12 Cases from other circuits have also analyzed the due process implications of sex offender classification and treatment. In Neal v. Shimoda , 131 F.3d 818 (9th Cir. 1997), the Ninth Circuit confronted Hawaii’s Sex Offender Treatment Program, which labeled inmates as sex offenders and compelled their participation in a 25

- session psychoeducational treatment program as a precondition to their el igibility for parole. Id. at 821

– 22. Neal, who was classified as a sex offender, refused to complete the program and filed suit under Section 1983. Id. at 822. The court could “hardly conceive of a state’s action bearing more ‘stigmatizing consequences ’ than the labeling of a prison inmate as a sex offender.” Id. at 829. The court rejected the argument

12 This court issued a subsequent unpublished opinion clarifying its opinion in Meza I

. See Meza v. Livingston , No. 09

- 50367, 2010 WL 6511727 (5th Cir. Oct. 19, 2010) ( Meza II ). The opinion does not differ in material respects from Meza I

. 14 Case: 14-50331 Document: 00512949977 Page: 14 Date Filed: 02/26/2015No. 14

- 50331 that the treatment program at issue was voluntary: “[B]ecause the State’s regulations render the inmate completely ineligible for parole if the treatme nt program is not satisfactorily completed, the attachment of the ‘sex offender’ label to the targeted inmate has a practical and inevitable coercive effect on the inmate’s conduct.” Id. Thus, the court concluded that “the stigmatizing consequences of th e attachment of the ‘sex offender’ label coupled with the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility create the kind of deprivations of liberty that require proced ural protections.” Id. at 830.
In Kirby v. Siegelman , 195 F.3d 1285 (11th Cir. 1999) , an Alabama inmate brought a Section 1983 suit challenging his classification as a sex offender and the requirement that he “participate in group therapy sessions of Sexu al Offenders Anonymous as a prerequisite for parole eligibility.” Id. at 1288. His classification also rendered him ineligible for a minimum custody classification, which is a prerequisite for certain work

- release and community custody programs. Id

. An alogizing to Vitek , the court reasoned that “[t] he compelled treatment through mandatory behavior modification

programs

. . . was a proper factor to be considered ” in the liberty interest analysis. Id. at 1292. Ultimately, the court concluded that “ the s tigmatizing effect of being classified as a sex offender constitutes a deprivation of libert y under the Due Process Clause.” Id. The Tenth Circuit addressed a similar scenario in Chambers v. Colorado Department of Corrections , 205 F.3d 1237 (10th Cir. 200 0) , in which an inmate was classified as a sex offender and ordered to participate in sex offender
treatment. Id. at 1238. Chambers did not participate in the treatment and, as a result, his good time credits were reduced by three days. Id. at 12 39. The court reasoned that “although the [ department of corrections] has not created a liberty interest in a prisoner ’ s not b eing classified a sex offender,” the removal
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- 50331 of his good time credits triggered such an interest

. Id. at 1242. The court also noted that “it is the label reple te with inchoate stigmatization

— here based on bare allegations which are vigorously denied a nd which have never been tested

— which requires some procedural scrutiny. ” Id. Finally, the Third Circuit in Renchenski v. Williams , 622 F.3d 315 (3d Cir. 2010), addressed an inmate’s sex offender classification. Due to his classification, Renchenski was enrolled in “a slew of prison programs, including sex offender orientation, sex offender core, and sex offender maintenance.” Id.
at 321 . Renchenski, however, refused to submit to an assessment and therefore di d not participate in those programs

. Id. at 322. This refusal

“ subject [ed] him to substantial penalties, including the loss of his prison job, assignment to disciplinary custody f or ninety days, cell restriction for thirty days, suspension of the right to receive visitors, and loss of privileges such as access to television, radio and the commissary. ” Id. at 323. In analyzing whether Renchenski’s liberty interests were implicated , the court reasoned that “[i] t is largely without question

. . . that the sex offender label severely stigmatizes an individual, and that a prisoner labeled as a sex offender faces unique challenges in the prison environment. ” Id. at 326. In addition, t he court stated that the treatment program at issue, “w hich consists of weekly psychotherapy sessions for approximately two years, is sufficiently similar to the forced transfer to a mental institution that the Supreme Court determined triggered a liberty interest in Vitek. ” Id. at 327. According to the court,

“ compelled treatment, i.e., sex offender therapy, chang es the conditions of Renchenski’ s sentence and, accordingly, constitutes a loss of liberty that exceeds his lo ss of freedom from confinement.” Id. The court therefore concluded “t hat labeling a prisoner a sex offender and forcing him or her to submit to intensive therapy triggers a liberty interest. ” Id.

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- 50331
2. Toney’s Due Process Claim We conclude that neither Toney’ s classification as a sex o ffender, nor the consequences flowing from that classification, implicated Toney’s liberty interests under the due process clause. First, there is little doubt that Toney suffered stigma as a result of his

c lassification

. See Me za I , 607 F.3d at 402 (“‘ We can hardly conceive of a state’ s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender. ’” ( quoting Neal , 131 F.3d at 829)); Coleman II , 409 F.3d at 668 (“[T]he state labeled [Cole man] a sex offender

— a label which strongly implies that Coleman has been convicted of a sex offense a nd which can undoubtedly cause adverse social consequences. ” (internal quotation marks omitted) ). Nonetheless, our cases, and those from other courts, suggest that stigma alone is insufficient to trigger a liberty interest under the due process clause. Indeed, we have stated that “ both Coleman opinions rely on Supreme Court precedent in the form of Vitek and Sandin for the proposition that procedural due process claimants must establish stigma

— in addition to qualitatively different conditions

— to claim an unconstitutional infringement of a liberty interest, regardless of whethe r reputational harm is a lleged.” Jennings , 602 F.3d at 659 n.9 (emphasis added) ; see also Vitek , 445 U.S. at 49 4 ( “ [T] he stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory b ehavior modification as a treatment for mental illness , constitute the kind of deprivations of liberty that re quir es procedural protections .” (emphasis added) ) ; Meza I , 607 F.3d at 401 (“[I]t is clear that Meza had a liberty interest in being free from bei ng required to register as a sex offender and participate in sex offender therapy .” (emphasis added)); Coleman II , 409 F.3d at 669 (“ Vitek imposed an obligation on the states to provide process before imposing stigmatizing classifications and concomitant
17 Case: 14-50331 Document: 00512949977 Page: 17 Date Filed: 02/26/2015No. 14

- 50331 behavior modification therapy on individuals in their custody. The panel opinion does nothing more. ” (emphasis added)); Coleman I , 395 F.3d at 223 (“[T] he Due Process Clause, as interpreted in Vitek, provides Coleman with a liberty interest in freedom fro m the stigma and compelled treatment on which his parole was conditioned

. . . .” (emphasis added)); Renchenski , 622 F.3d at 327 (“[L] abeling a prisoner a sex offender and forcing him or her to submit to intensive therapy triggers a liberty interest .” (emp hasis added) ); Neal , 131 F.3d at 830 (“[T] he stigmatizing consequences of the attachment of the ‘sex offender’
label coupled with the subjection of the targeted inmate to a mandatory treatment program

. . . create the kind of deprivations of liberty that require procedural protections. ” (emphasis added) ) . We are aware of no court that has held that a stigmatizing classification alone implicates liberty interest s under the due process clause , and we decline to so hold today. Such a classification, absent other consequences , does not constitute an “atyp ical and significant hardship on [Toney] in relation to the ordinary incid ents of prison life.” Sandin , 515 U.S. at 484 ; see also Hernandez v. Velasquez , 522 F.3d 556, 562 (5th Cir. 2008) (“[G]enerally speak ing, a prisoner has no liberty interest in his custodial classification.”). It is nonetheless clear from the cases discussed above that sex offender classification trigger s a liberty interest when combined with mandatory sex offender treatment . Toney corr ectly notes that in these cases , the inmates or parolees had not necessarily undergone sex offender treatment at the time they filed suit. See Coleman I , 395 F.3d at 219; Neal , 131 F.3d at 822 ; Renchenski , 622 F.3d at 322 ; Chambers , 205 F.3d at 123 9

. But in each of these cases, sex offender treatment was clearly mandated. See Coleman I , 395 F.3d at 219 (treatment a condition of parole); Renchenski , 622 F.3d at 323 (failure to participate in treatment resulted in various penalties) ; Chambers , 205 F.3d at 1239 (failure to participate in treatment resulted in loss of good time credits);
18 Case: 14-50331 Document: 00512949977 Page: 18 Date Filed: 02/26/2015No. 14

- 50331 Neal , 131 F.3d at 822 (treatment a precondition for parole eligibility)

. Here, based on the undisputed facts, Toney was never mandated to undergo sex offender treatment. Fi r st, it is clear that, unlike the parolees in Coleman and
Meza , sex offender conditions of parole were never imposed on Toney. Although at one point Toney was given a form indicating that the TDCJ was “considering requesting [that] the [TBPP] . . . impose S pecial Condition ‘X’,” Toney never became subject to this condition because he was never granted parole. 13 Second , although Toney contends that he was transferred to the Ellis Unit in 2011 because “they have Sex Offender Trea tment Programs,” there is

no evidence that Toney was ever mandated to undergo such treatment while at Ellis. Third, we conclude that Toney’s participation in the Static 99 Assessment did not constitute sex offender treatment. The district court correctly noted that this “one

- page wo rksheet” was merely a “general risk
assessment tool.” The evaluation

— which wa s completed by a parole officer, not a psychiatrist or other men tal health professional

— consisted only of a handful of questions relating to Toney’s history and past convictions. We hold that such a brief, perfunctory evaluation is not so “stigmatizing and invasive” as to render Toney’s conditions of incarceration “qualitatively different” from those of other inmates. Meza I , 607 F.3d at 401 (internal quotation marks omitted)

. Finally, we conclude, based on the undisputed facts, that Ton ey was never mandated to complete the SOTP 18

- month treatment program

. Although Toney’s ITP printouts showed that Toney had a “High Need” for the

pro gram and should “Enroll Now,” the ITPs also i ndicated that Toney was “Pending Assignment” to the program

— i.e., that “pre

- entrance testing must be completed prior to enro llment.” Thus, Toney was never assigned to the SOTP

13 Even if Toney had been granted parole, imposition of the condition was not automatic even considering his sex offender classification, as the TBPP had dis cretion to decide whether to impose the condition

. 19 Case: 14-50331 Document: 00512949977 Page: 19 Date Filed: 02/26/2015No. 14

- 50331 and was therefore never mandated to complete the program. Although Toney has i dentified penalties that may result from his refusal to par ticipate in a required program , there is no indication that Toney was required to, or refused to, participate in the SOTP

. 14 Cf. Renchenski , 622 F.3d at 322, 33 0 (noting Renchenski’s re fusal to par ticipate in therapy); Cha mbers , 205 F.3d at 1239 (“ Because Mr. Chambers did not participate in the program, Ms. Bachicha recommended reducing the monthly ten days of earned time credit he received to seven days. ”); Neal , 131 F.3d at 822 (“ Neal has never participated in the SOTP and has refused to sign and complete the SOTP Contract and Consent to Treat form. ”).
T he other consequences Toney faced due to hi s sex offender classification also fail to gi ve rise to a liberty interest. First, Ton ey contends that his sex offender status resulted in the repeated denials of his parole. However, even assuming the parole boar d relied on this factor in deciding to deny his parole , we have consistently held that “ Texas prisoners

. . . cannot mount a cha llenge against any state parole rev iew procedure on procedural . . . Due Process grounds .” Johnson v. Rodriguez , 110 F.3d 299, 308 (5th Cir. 1997) (emphasis added); see also Orellana v. Kyle , 65 F.3d 29, 32 (5th Cir. 1995) (“[B] ecause Orellana has no libe rty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole
decision s .”). Accordingly, even if the parole board “consider[ed] unreliable or even false information ” regarding Toney’s sex offender status “in making [its ] parole determinations,” this “simply do[es] not assert a federal constitutional violation.” Johnson , 110 F.3d at 308. Toney also points to his 2011 t ransfer to the Ellis unit, but, as discussed a bove, Toney has provided no evidence

14 Indeed, there is a specific code

— “PR”

— indicat ing that “the offender has refused to participate in a non

- vol untary program,” but that code never appeared on To ney’s ITP printouts. 20 Case: 14-50331 Document: 00512949977 Page: 20 Date Filed: 02/26/2015No. 14

- 50331 suggesting that he was required to undergo sex offender treatment upon his transfer to the Ellis unit. Moreover, a n inmate generally “has no liberty interest in residence in one prison or another .” Jackson v. Cain , 864 F.2d 1235, 1250 (5th Ci r. 1989). Finally, Toney’s exclusion from substance abuse
treatment and educational/voca tional programs while in prison does not implicate a liberty interest, as such restrictions do not impose “atypical and significant hardship [s] on [Toney] in relation to the ordinary incidents of prison life.” Sandin , 515 U.S. at 484. In an analogous scenario, this court recently held that an inmate’s exclusion from the Inmate Financial Responsibility

program

— which results in , inter alia : (1) the inmate’s inability to receive furlough; (2) limitation of his work assignments; (3) limitation of his commissary spending limit; (4) placement in a lower housing status; (5) exclusion from community

- based programs; and (6) loss of incentives for entering residential drug treat ment programs

— did not trigger a liberty interest. Driggers v. Cruz , 740 F.3d 333, 335 , 338

– 39 (5th Cir. 2014) (“The[se] . . . conditions are not so severe as to impose an atypical and significant hardship upon the inmate in relation to the ordinary incide nts of prison life

. ” (internal quotation marks omitted)); see also Nathan v. Hancock , 477 F. App’ x 197, 199 (5th Cir. 2012) (unpublished) (“[T] he loss of recrea tion and commissary privileges . . . does not implicate a liberty interest because thos e punishments do not represent the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” (internal quotation marks omitted)). Finally, Toney argues that Appellees violated his state

- created liberty interest s . In Sandin , the Court stated that although “States may under certain circumstances create liberty interests which are protected by the Due Process Clause,” such “interests will be generally limited to freedom from restrain t which, while not exceeding the sentence in such an unexpected manner as to
21 Case: 14-50331 Document: 00512949977 Page: 21 Date Filed: 02/26/2015No. 14

- 50331 give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of pr ison life.” 515 U.S. at 483

– 84 (internal citations omitted). Moreover, because “[t] he hallmark of a statute that has not created a liberty interest is discretion,” a protected liberty interest may be present “only when a regulation uses mandatory languag e to place a substantive limit on official discretion.” Richardson , 501 F.3d at 419 (internal quotation marks omitted). “A unilateral expectation of certain treatment is insufficient; a prisoner must have a legitimate claim of entitlement to it.” Id. (i nternal citation marks omitted). Here, Toney cannot even point to the violation of a state statute or regulation. First, Toney relies on a statute defining a “sex offender , ” for purposes of community supervision, as “a person who has been convicted or has entered a plea of guilty or nolo contende re for” certain listed offenses. T ex. Crim. Proc. Code art. 42.12 § 9A(a)( 2). It is undisputed that Toney does not qualify as a sex offender under this definition. However, this definition pertains only to offenders who have been placed on community supervision in lieu of the imposition of their sentence. See id. § 1. Because Appellees have not labeled Toney as a sex offender for purposes of community supervision, they have not violated this statu te. Toney also cites to Texas’s sex offender reporting statute, which contains a similar list of convictions that trigger certain sex offender registration requirements. See Tex. C rim. Proc. Code art. 62.001(5). Again, Toney cannot show a violation of t his statute, as there is no evidence that Toney has been compelled to register as a sex offender. 15 In addition, because the sex offender registration statute requires that the Static

15 Indeed, Toney was spe cifically informed that he would not have to registe r as a sex offender. 22 Case: 14-50331 Document: 00512949977 Page: 22 Date Filed: 02/26/2015No. 14

- 50331 99 Assessment be used for “person[s] subject to registration under this chapter,” Tex. Crim. Proc. Code art. 62.007(b)(1), Toney contends that his forced participation in the assessment was in violation of the statute. But because there is nothing in the statute prohibiting the use of the Static 99 Assessment on inmates not s ubject to registration , this provision is inapposite

. See id. Toney also relies on various prison and parole regulations and policies in support of his state

- created lib erty interest argument , but he does not argue that Appellees’ violatio n of these poli cies implicated his liberty interest s

. Rather, he contends that those policies, which allow a person not convicted of a sex offense to be deemed a sex offender, violate the statutes discussed above

. But Toney’s classification as a sex offender for purpos es of potential SOTP treatment, parole, or other consequences, is entirely separate from the classification of a sex offender for sex offender registration or community supervision purposes. Thus, because Toney cannot establish a violation of these statut es or regulations , his state

- created l iberty interest arguments necessarily fail.
IV. Conclusion Because Toney has not shown an infringement of his liberty interests, the district court did not err in dismissing his federal due process claims. Accordingly, be cause Toney has not established a violation of his constitutional rights, the district court correctly granted qualified immunity to Appellees sued in their individual capacities. See Saucier , 533 U.S. at 200. Finally, we affirm the district court’s decision not to exercise supplemental jurisdiction over Toney’s state law claims, which Toney does not challenge. Therefore , the judgment of the district court is AFFIRMED

. 16

16 We also deny as unnecess ary Toney’s motion for leave to file addit ional record excerpts, as the documents Toney seeks leave to file are already contained in the record. 23 Case: 14-50331 Document: 00512949977 Page: 23 Date Filed: 02/26/2015